VOL. I.] EXCHEQUER COURT REPORTS. 291 Coram TASCIIEREAU, J. 1887 WILLIAM CHARLAND (CLAIMANT) . APPELLANT; June 16. AND HER MAJESTY THE QUEEN .RESPONDENT. Expropriation of land for the purposes of a Government railway—Potential advantage of railway to remaining property. On appeal from an award of the Official Arbitrators, the court, in assessing the amount of compensation to be paid to the owner, declined to take into consideration any advantage that would accrue to the property if a siding connecting the property with the railway were constructed, as there was no legal obligation upon the Crown to give such siding, and it might never be constructed. APPEAL from an award of the Official Arbitrators.' The claimant, a portion of whose property had been expropriated for the purposes of the St. Charles Branch of the intercolonial Railway and the residue thereof injuriously affected by its construction, put forward a claim against the Dominion Government for damages so sustained by him, amounting to the sum of $87,278.00. This claim was referred to the Official Arbitrators for investigation and award, and, having taken evidence on behalf of both parties, they awarded the claimant $4,155.61 with interest from the date of expropriation. From this award the claimant appealed to the court. The appeal was heard by Mr. Justice Taschereau upon the evidence before the Arbitrators and new evidence taken before himself. Belleau, Q.C., for claimant ; Hogg for respondent. TASCHEREAU, J. now (June 16th, 1887,) delivered judgment. In this case the claimant, owner of a ship-yard at 19%
292 EXCHEQUER COURT REPORTS. [VOL. I. 1887 Lévis, had 31,776 feet of his land expropriated for the CHA RL AND use of the Intercolonial Railway. V. QUEEN. The amount claimed is $37,273, the amount tendered THE was $1,893. The reference to the Arbitrators is dated Rea fo so r ns Judgment. 26th May, 1884, and on the 16th May, 1885, the sup- pliant was awarded $4,155.61 with interest from date of expropriation, viz.: August 1st, 1883. The present appeal is by the claimant. There were in all three lots (A, B and C) expropriated. The following is a summary of the evidence on behalf of the claimant :— Narcisse Rosa testifies that lot A contains 11,481 feet, of which 7,761 were expropriated,—leaving 3,780 feet south of the railway of no use to the claimant. On this lot there was a reservoir which was destroyed by the railway. There is difficult access to the property since the railway was built. He estimates $1.20 per foot for land expropriated. As to lot B, he says 4,436 feet were expropriated on which a shed has been demolished, value $650. He estimates the land in this lot at 45 cents per foot. As to lot C, this lot has a total area of 42,258 feet, whereof 16,639 feet have been expropriated ; leaving on the north an irregular lot of 17,621 feet, and one to the south of 8,828 feet. He values the land expro-. priated here, including damages, at 42 cents per foot. On cross-examination this witness values the whole property at 18 cents per foot. As to the tannery, he saps it was worth $10,000 at the time of the expropriation, and he estimates the damages at $8,000 or $9,000. The value of the reservoir, in his opinion, is from $1,800 to $2,000 ; and the damages resulting from the obstruction of three streets, he puts at $3,000. He thinks the fire risk has been increased. H. Moore values lot A at 90 cents a foot, of which
VOL. I.1 EXCHEQUER COURT REPORTS. 298 2,250 feet are rendered valueless by the expropriation, 1887 loss 90 cents. On the hill he says, 1,530 feet are left OHA'rLAND which were worth, prior to the passing of the railway , Tin QII . 90 cents; now only worth 12 cents. The loss of the Rens reservoir he puts also at $2,000. for Judgment. Lot B, he values at 50 cents per foot, and the shed at $500 or $600. He has known lot C for a long time, having been foreman in the adjoining yard. This lot he values at 40 cents a foot, especially on account of the stream. The. damages to the tannery he puts at $9,000. Joseph Jolicceur of Lévis, carpenter, says he would value lot A at 90 cents before the railway, and what is left. south is now almost useless. It would cost $2,000 to replace the reservoir on lot C. Two streets, viz.: Couillard and Joliette, are completely blocked, and he estimates the damage arising therefrom at $2,200. Lot' B, at the time of the expropriation, he says, was worth 50 cents per foot,' a shed destroyed thereon was worth $600. Lot C, he values at 40 cents to 45 cents per foot. What is left to the south is now worth nothing. The difference in value between what is left north is, that what was worth 45 cents is now only worth .15 cents. The damages to the tannery he estimates at $9,000 ; and the actual cost of such tannery he puts at $16,000. Mr. Charland, sr. values lot . A at 90 cts. per foot ; loss of reservoir he puts at $100. Lot B, he values at 50 cts. per foot, and shed at $700. Lot C, at 45 cts. per foot. Damage to the tannery he puts at $1,000. Clément Giguère, ship carpenter, knows the proper- ty, having worked on it for years. Lot A, he' values at $1.00 per foot ; the loss of reservoir at $2,000. Lot B, 50 cts. per foot; the shed $600.
294 EXCHEQUER COURT REPORTS. [VOL. I. 1887 Lot C, he puts at 45 cts. per foot, including damages. CHARLAND As to tannery, he says the railway has caused it serious e. damage. THE QUEEN. Rigobert Bourget's evidence may be summarized as Reasons judgment. follows : Lot A valued at $ 1.00 per foot. Lot B " " .50 " Lot C .45 " Damages caused by obstruction of streets 2,000.00 Charles Napoléon Robitaille's as follows : Lot A $ 1.20 per foot. Lot B .. .50 ̀ ° Lot C. .50 " Reservoir 2,000.00 Streets 2,000.00 Henry Black's as follows : Lot A. $ 1.00 per foot. Lot B.... .75 " Lot C... .95 °‘ Streets 10,000.00 Tannery 8,000.00 Reservoir 2,000.00 Antoine Rousseau's as follows : Lot C at 35 to 40 cts. per foot. Shed $450. Street obstruction, he says, makes access difficult. Raymond Blakeston values lot A at 75 cts. per foot, lot B at 40 cts. per foot. Shed on lot B at $600, and lot C generally at 25 cts. per foot, but 40 cents per foot generally for expropriated land. The damages caused by obstruction of streets he puts at $100 per year. In his estimate he did not include fire risks, and has no knowledge of the reservoir. He was receiving $10 a day from the Government.
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VOL. L] EXCHEQUER COURT REPORTS. 295 Joseph Gingras gives evidence as to the decrease of 188 7 ship-building. He thinks there is lots of room for CHAR Nn the tannery, but puts no valuation upon it ; and he THE QUEEN. knows little about the property, except what know- Reasons ledge he has acquired in his visit for the purposes af sud g ro u r . ent. this case. Arthur Levesque proves that the shed is worthless ; he values it at $30, and says the means of egress are not as good as before. J. B. Bélanger states that the shed is worth but $100 ; and Herménégilde Bourassa was heard as a witness to prove the valuation rolls of the corporation. Isidore Bégin, a farmer, states that the railway is no disadvantage, and values land at 10 cts. a foot. Roads are better since the railway. He compares this property with other properties abandoned for ship-building purposes, he admits he does not know as much of the value of a ship-yard as he does of building lots. He considers the railway an advantage because he thinks the Government will give claimant a siding. He does not know about risks from fire. Joseph Lavoie says the railway is no nuisance, but he had never been on the property before the week prior to giving his evidence. Amable Savard thinks the railway no nuisance. He gives no figures. Alphonse Demers puts lot C at 6 cents per foot. He does not know much of the value of such properties. George Lemelin, a store keeper of St. Roch, Quebec, but who was formerly a ship-builder, says he visited the property twice for the purpose of giving evidence. He thinks the yard is now large enough for a tannery, and values the damages at $630 for all. He was brought as a witness by Berlinguet. He thinks the railway an advantage with a siding.
29B EXCHEQUER COURT REPORTS. [VOL. 1. 1887 Olivier Rochette, tanner, says the railway does not Cann ND interfere with claimant's tannery, and would consider THE QuEx. it an advantage with a siding. Louis Julien, tanner, corroborates the last witness. Ileaeons a Gaspard Germain, tanner, says he visited the ground with Rochette and Julien, and that, with a siding, the railway should be considered an advantage. Joliette street is bad and steep ; he says lot C, in his opinion, would have been good land to dry leather on. Benjamin Bilodeau says the reservoir is covered by railway embankment. The shed he values at $100. He says the ground east of the tannery is swampy. Désiré Guay, tanner, visited the property in company with other tanners. He says the railway is no interference with the tannery. George Delisle, tanner, speaks to the same effect, as preceding witness. Onésime Beaudoin visited the property twice for the purpose of giving evidence. He values ground expropriated at 5 cents a foot. Whole property worth $12,000 to $15,000. He thinks the railway an advantage, provided a siding is put in. Edouard Demers, the agent for the Crown, says he made a tender of 6 cents per foot to claimant for the land expropriated, amounting to $1,863.66 for property taken in that locality for the railway. W. B. Mackenzie proves the tender of $1,836.12. Charles Guillaume Charland, and Guillaume Char-land were called, but their evidence has no bearing on the case. François Robitaille was also examined as to condition of the hills, and says they are good. The bolliette one was improved lately by Government. Arthur Samson and Godfroi Bégin give similar evidence, but add that the railway might be considered a slight inconvenience.
VOL. I.] EXCHEQUER COURT REPORTS. In rebuttal, witnesses Germain Richard and Napo- léon Marquis were examined as to swampy nature of the ground east of the tannery. William Lambert says since the hill has been repaired by the Government it is much better, but he is still of opinion that claimant suffers inconvenience — from the crossing of the railway. Joseph Jolicoeur corroborates what the last witness says, and says a sum of $200 a year would compensate claimant, but on cross-examination his estimate vanishes. John Hugh Powell says that with the hills as at present, the claimant is damaged some $300 or $400 a year. Upon this evidence, I have come to the conclusion that claimant is entitled, on lot A, to 7,701 feet at 50 cents Reservoir destroyed In the 50 cents I include damages to 3,970 feet of land rendered almost worthless, also damages from the crossing of the railway track and risks of fire. As to lot B, I allow 4,436 feet at 25 cents....$1,109.00 Shed destroyed And on lot C, I allow 19,639 feet expropri- ated at 20 cents Damages to 26,549 feet at 5 cents 1,32745 This includes damages to tannery. The total therefore is $10,814.75. As to any advantage arising to the property from the railway, all the witnesses who express the opinion that the railway is an advantage do so upon the condition that the rail- 297 1887 CHAR N D THE QUEEN. Reason fir Judgm ent. $3,850.50 500.00 $4,350.50 .. 100.00 $1,209.00 $3,927.80 $5,255.25
298 EXCHEQUER COURT REPORTS. {VOL. I. 1887 way authorities will give a siding to claimant on his CHARLAND property. Now he is not entitled to it, the railway THE EEN. has never offered it, and he will probably never get it. QB It must be remembered that he had the benefit of Reasons JnQpfor the railway before this expropriation, . although the station was then one mile further away than the new one. As to the valuation rolls and the law points raised in this case, I refer to what I said in the Paradis case (1). The appeal will therefore be allowed with costs. The award will be increased to $10,824.75 with interest from date of expropriation . (15th August, 1883), and the claimant will have the costs of arbitration. Appeal allowed with costs.* Solicitors for claimant : Belleau, Stafford 4. Belleau. Solicitors for respondent : O'Connor 4- Hogg. 1889 *On appeal to the Supreme Court on one side and the other differ --w of Canada by the Crown, the judg- very widely, and consistently with April 30. ment of the Exchequer Court was the evidence before the court, the Patterson, ) efilrmed• amount awarded might have been 011 PRESENT : Strong, Fournier,Tas- very much less or very much more. Appeal. chereau, Gwynne and Patterson, The grounds on which the witness- JJ. es based their judgment also dif- The following judgment was de- fered. I do not think there has livered by PATTERSON, J. been shewn any matter of principle This appeal, like the appeal of in which the judgment is fairly Guay (2), is entirely upon the evi- open to blame, or any oversight of dente. We are concerned with the material consideration. In my judgment of the Exchequer Court, opinion, we should dismiss the ap-which increased the award of the peal. Arbitrators from $4,155.61 to STRONG and FOURNIER, JJ. con- $10,824.75. curred in the above judgment. It cannot be said that the judg- The following dissentient opin- ment is not fully supported by the ion was delivered by GWYNNE, J.— evidence. I have been unable to see in the The estimates of the witnesses evidence, in this case, sufficient to (1) Reported ante p. 191. (2) 17 Can. S. C. R., p. 30. •
VOL. I.] EXCIIEQUER COURT REPORTS. 299 justify me in saying that I am sat- much more than double the value 1889 isfied that the Official Arbitrators of the claimant's whole property have not, by their judgment, there situate, with all buildings CHARLAND awarded to the claimant sufficient thereon, as the same was assessed T HE Q v U ' EEN. compensation for the land taken for municipal purposes. The Arbi- , from him for the railway which has trators awarded the claimant Gwynne, .1. been constructed through his prop- $4,155.61 in full. Upon appeal A peal. erty, and for the damage done to the Court of Exchequer, that thereby to the land not taken. I court increased such sum to $10,- do not know anything more diffi- 824.75 ; and from this latter judg- cult than for judges sitting on ap- ment this appeal is taken. peal to pronounce damages award- Before the construction of the ed in- a case of this kind, by corn- railway, the claimant's property petent persons who have had an from which the "ths of an acre opportunity of inspecting the was taken, was assessed at $13,500, premises and extending the weight and, after the construction of to be attached to the evidence of the railway, at $15,000. This in-the several witnesses examined be- crease in the assessed value, imme-fore them viv i voce, to be insuff e- diately upon the construction of lent. My experience leads my the railway, would seem to afford mind to the conviction that arbi- some evidence that the railway trators in these cases of expropria- had not depreciated the market tion, always lean, as I think is na- value of the property. The wit-tural that they should, in favor of nesses, however, which were pro-rather than against the owner of duced by the claimant, supported the property taken ; and I think the claimant's demand ; as is also that their decision upon a question customary in these cases, by plac-of the amount of compensation ing upon the land taken and upon payable to such owner, is entitled the depreciation alleged to be to as much weight as would that caused to the land not taken, not of a jury be on a similar question; only an exorbitant value, but one and I confess that I feel myself which, from the variation in the no more justified in increasing the estimates of the several witnesses, damages awarded in the former appears to be wholly speculative case than I would in the latter. and not founded upon any sub- The quantity of land taken in stantial basis. This evidence, I the present case from the claimant confess, appears to me to be much was in the whole about lths of an less reliable than that arrived at English acre, out of a property con- by the yearly assessments made taining about 8 acres,used as a ship- for municipal purposes. The lat-building yard,on the shore near ter may, it is true, not be always Lévis, in the Province of Quebec. up to the full value of the prop-The claimant, as is usual in cases erty, but the experience, I think, of expropriation of land for of most persons, if put upon their public purposes, demanded the oath, would be that the assessed exorbitant sum of $37,273.00, as value is more frequently too high the amount to be paid to him for than too low, and that the muni-the 1ths of an acre taken and the cipal authorities never do assess damage ddne thereby to the land property so low as at half its par not taken, such amount being value, much less at or or I of
300 EXCHEQUER COURT REPORTS. [VOL. I. 1889 what the claimant's witnesses de- they had the advantage of doing dare to be the value of his prop- upon inspection of the premises ; CHARLAND erty at its fair market value. It and, for my part, I can only repeat TxE Q v a ' nEN is said, on the other hand, that the that I can see nothing which satis- • evidence on the part of the Gov- fies my mind that the judgment Gwynn, a. ernment is wholly unreliable and they have pronounced is erron- Ap o p n e al. depreciatory of the claimant's pro- eons. I am of opinion that our perty. That may be so, whether it judgment in the present case should be so or not I cannot say; but how- be similar to that pronounced by ever this may be, I do not think us in Paradis v. The Queen (1), belt can be said to err on the side of tween which and the present case depreciation as much as the evi- I can see no substantial difference. deuce of the claimant's witnesses The appeal, in my opinion, does on the side of exorbitant ex- should be allowed with costs, and cess. The Arbitrators, however, judgment given for the amount as were, I think, the proper persons awarded claimant by the Official to estimate this evidence, which Arbitrators. (1) Reported ante p. 191.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.