Bickford v. Chatham (Township)

Bickford v. Chatham (Township)
Collection
Supreme Court Judgments
Date
1889-01-15
Report
(1889) 16 SCR 235
Judges
Ritchie, William Johnstone; Strong, Samuel Henry; Fournier, Télesphore; Henry, William Alexander; Taschereau, Henri-Elzéar; Gwynne, John Wellington
On appeal from
Ontario
Subjects
Transportation
Decision Content
Supreme Court of Canada
Bickford v. Chatham (Township), (1889) 16 S.C.R. 235
Date: 1889-01-15
Edward Oscar Bickford & The Erie & Huron Railway Company (Plaintiffs) Appellants;
and
The Corporation of the Town of Chatham (Defendants) Respondents.
1889: October 16; 1889: January 15.
Present: Sir W.J. Ritchie C.J. and Strong, Fournier, Henry, Taschereau and Gwynne JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.
Railway Co.—Aid to—By-law granting bonus—Conditions of prior agreement—Performance of conditions—Specific performance—Damages.
By an agreement between the E. & H. Railway Co. and the Town of C. the latter agreed to pass a by-law granting a bonus to the company in aid of the construction of a railway subject to the performance of certain specified conditions. The by-law subsequently approved by the ratepayers, and passed by the council of the town, did not contain all the conditions of the agreement. In an action against the town to compel the delivery of debentures for the amount of the bonus the defendants pleaded non-performance of the conditions of the agreement as justifying the withholding of the debentures and, byway of counter-claim, prayed specific performance of such conditions by the plaintiffs.
Held—1. Per Ritchie C.J,. Strong, Fournier and Henry JJ., Taschereau and Gwynne JJ. contra, that the title to the debentures did not depend upon prior performance of conditions in the agreement not included in the by-law, but upon performance of those in the by-law alone, and the latter having been complied with the debentures should issue.
2. Per Fournier J., that the debentures should, nevertheless, be withheld until the damages for non-performance of the conditions in the agreement were paid or secured.
3. Per Ritchie C.J., Strong and Henry JJ., Fournier J. contra, that specific performance was not an appropriate remedy in such a case and the defendants could only claim damages for non-performance. 4. Per Ritchie C.J., Strong and Fournier JJ., that the claim of defendants for damages could be disposed of in this action under the counterclaim and there should be a reference to assess the same.
5. Per Henry J., that the evidence did not justify a reference and the counterclaim should be dismissed with a reservation of defendant’s rights.
One of the conditions in the agreement to be performed by the railway company was “to construct at or near the corner of Colborne and William Streets (in Toronto) a freight and passenger station with all necessary accommodation, connected by switches, sidings or otherwise with said road” upon the council of the town passing a by-law granting a necessary right of way.
Held—1. That such condition was not complied with by the erection of a station building not used, nor intended to be used, and for which proper officers such as station master, ticket agent, etc., were not appointed. Strong J. dissenting.
2. Per Strong J., that the condition only called for the construction of a building with the required accommodation and connections, and did not amount to a covenant to run the trains to such station or make any other use of it.
3. The words “all necessary accommodation” in the condition required that grounds and yards sufficient for freight and passenger traffic in case the station were used should be provided.
The act incorporating the railway company contained provisions respecting bonuses granted to it by municipalities not found in the Municipal Act.
Held, that such special act was not restrictive of the municipal act, and it was only necessary that the provisions of the latter should be followed to pass a valid by-law granting such a bonus.
Held also, that all defects of form in the by-law were cured by 44 Vic. ch. 24, sec. 28, providing for registry of by-laws and requiring an application to quash to be made within three months after such registry.
APPEAL from a decision of the Court of Appeal for Ontario[1] affirming the judgment of the Common Pleas Division[2] in favor of the plaintiff.
The action in this case was brought to compel the delivery by the defendants of debentures to the amount of $30,000 to which the plaintiffs claimed to be entitled under a by-law of the defendant corporation therefor, passed in December, 1883. The conditions of the by-law as to what was necessary to be done by plaintiffs to entitle them to the debentures were as follows:—
“The construction and completion for running of the track and road of the Erie & Huron Railway Company from the town of Chatham to the Canada Southern Railway, on or before the 30th day of June, A.D. 1883, or such later date as the council of said town may by resolution from time to time fix; and the construction and completion, within two years from the date on which this by-law takes effect, of the whole track and road of said Erie & Huron Railway Company from the town of Dresden and the village of Wallaceburg to the Rondeau Harbor, laid with steel rails and with stations and freight houses and other necessary accommodation attached and connected therewith, and with a station and freight house and switches or sidings at the crossing of the track of the Canada Southern Railway Company, so that trains can run off the track of the Erie & Huron Railway Company upon, or parallel with and adjacent to, the track of the Canada Southern Railway Company, with a platform 600 feet long adjacent to and parallel with the said last-mentioned track, and 400 feet long and adjacent to and parallel with the track of the Erie & Huron Railway Company; the construction of a bridge over the Thames with an iron or wooden swing, and an adjoining bridge and way for foot passengers over said river not less than four feet in width; the complete construction of said road in other respects supplied with all necessary rolling stock and materials, so as to connect the said town with Rondeau, Blenheim, the Canada Southern Railway, Dresden and Wallaceburg, to the satisfaction of the Commissioner of Public Works for the time being for Ontario, or an engineer appointed by him; and said company thereafter bonâ fide running said road with all necessary accommodation for the public, and with connection at the track of the Canada Southern Railway Company for one week.”
This by-law was duly registered as provided by 44 Vic., ch. 24, sec 28.
Prior to the passing of the by-law an agreement was entered into between the defendants and the Erie & Huron Railway Company, by which the defendants agreed to pass such by-law on conditions similar to the above, and with the following additional clauses:
“And to construct at or near the corner of Colborne and William streets, in the said town, a freight and passenger station with all necessary accommodation, connected by switches, sidings or otherwise with said road of the company, upon the council of said town, within three months from the final passing of said by-law, passing another by-law empowering the said company to make its roads and lay its rails along a highway or highways in the said town to said corner, from where the said road would be if the construction thereof were completed in a direct line through the said town, or upon the said council procuring for and giving to said company a right of way along the northerly side of McGregor’s Creek (one half in the water) for the road of said company to or near said corner and to load from gravel piles, pits or beds purchased by said corporation adjacent to or adjoining the track of said company, and carry gravel over said road to any place required by the said town for the construction, maintenance, and repair of public roads in said town, and for other purposes of the town for a sum and at a rate for loading and carriage not to exceed 3 cents per cubic yard of gravel per mile, for all distances less than ten miles, and 2 cents per mile for all distances of ten miles and over, but under 25 miles, and one and-a-half cents per mile for all distances of and over 25 miles.”
The road was completed and in running order, and carrying freight and passengers, long before the time mentioned in the by-law, and was run continuously thereafter to and from the King street station for a week, and has been running ever since.
On 1st November, 1883, Robert McCallum, a civil engineer, appointed by the Commissioner of Public Works for the province of Ontario, gave a certificate in the following words:—“This is to certify that I have examined the Erie & Huron Railway from Rondeau Harbor to the town of Dresden, and from Dresden to Wallaceburg, and find that the said road is completed and at present supplied with all necessary rolling stock and materials so as to connect Rondeau Harbor with the Canada Southern Railway, Blenheim, Chatham, Dresden and Wallaceburg, and, in my opinion, is ready for the conveyance of freight and passengers.”
The same engineer granted a more formal certificate, setting forth that on the 23rd day of December, 1884, he had made an examination and inspection of the Erie & Huron Railway from Rondeau Harbor to the town of Dresden and from Dresden to Wallaceburg, and had in connection with such examination perused the agreement entered into between the Erie & Huron Railway Company and the corporation of the town of Chatham, dated November, 1882; also, the by-law of the town of Chatham, passed in the month of December, 1882, granting a bonus of $30,000 to the railway company upon certain terms and conditions; that he found the said railway was completed and supplied with all necessary rolling stock and materials so as to connect, as arranged, with the Canada Southern Railway Company, Blenheim, Chatham, Dresden and Wallaceburg, and was, in his opinion, ready for the conveyance of freight and passengers., and that the railway company had substantially complied with the terms and conditions regarding the work to be performed required by the said agreement and by-law, except as to time, as to which he would give no certificate as he was not aware of the time limited. He also found and certified that the platforms provided for by the said agreement and by-law at the crossings of the Canada Southern Railway were theretofore completed in accordance with the requirements of the said agreement and by-law, but that afterwards a portion thereof was temporarily removed by the Canada Southern Railway for the purpose of enabling the said company to lay a pipe to a water tank, and such portion at the time of inspection had not been restored
No notice was given to the defendants of the appointment of McCallum as the engineer to make the inspection, nor of the time he would make his inspection; and such inspection was made without the presence of any one acting for or on behalf of the town.
After the passing of the bonus by-law the defendants passed another by-law on the 24th of March, 1883, authorizing the railway company to make its road and lay its rails for one single track, or train, along the southerly side of Colborne street, from the main line to William street in said town, and for two tracks, or a double track, between Adelaide and William streets, provided that the said road and tracks should be at least eight feet from the middle line of said street.
The agreement between the Erie & Huron Railway Company and the defendants, and the agreement between the plaintiff, Bickford, and the plaintiffs, the Erie and Huron Railway Company, were made valid and binding by 46 Vic., cap. 52. The defence set up by the defendants was, in substance, that the station was not placed at the corner of Colborne and William streets as provided in the agreement; that McCallum was not appointed, and did not make his examination, as the by-law provided; that the road was not completed within the time limited; that the said railway was not constructed and completed on or before the 30th day of September, 1883, with station and freight houses and other necessary accommodation, which they submitted included a freight and passenger station with all necessary accommodation for the defendants, with switches, siding, or otherwise connected with the said road at or near the corner of Colborne and William streets, according to the terms of the alleged by-law and agreements, or either of them; that a platform 600 feet long, adjacent to and parallel with the Canada Southern Railway, and 400 feet long adjacent to and parallel with the Erie and Huron Railway, at the junction of the said two railways was not constructed; that a bridge over the river Thames, with iron or wooden swing, and an adjoining bridge for foot passengers not less than four feet in width, approaches, and other necessaries connected with said bridge, so as to form a way over said river for the public, were not constructed; that a freight and passenger station, with all necessary accommodation, connected by switches, sidings, or otherwise, with said road, was not constructed at or near the corner of Colborne and William streets.
The defendants, by counter claim, set forth the several grounds of defence as causes of action against the plaintiff and prayed that the plaintiff be ordered to construct and maintain a foot-bridge across the Thames with approaches over the flats of the river and lands of the plaintiff on both sides of the river, and perform the other requirements of those agreements and remove one of the tracks laid on Colborne street ‘and to erect and establish all necessary workshops and repairing houses or sheds within the town and to remove the station on Colborne street off the line of the street, and to cease to use said street as a switch, or siding cars or trains thereon, and that it be referred to the master to ascertain the damages which the defendants have sustained, and that plaintiffs be ordered to pay the same.
The evidence disclosed that the road was completed and in running order and open for general traffic to the King street station within the time mentioned in the by-law, but there was conflicting evidence as to whether passenger trains had been run to the Colborne street station continuously for one week; that when the iron bridge across the Thames was first completed the footbridge across was not quite the required width, but that afterwards the footbridge was made of the requisite width, except that at one point one of the iron wire guy ropes passed through the footway so as to have the footway obstructed by this rope, but such obstruction did not impair or prevent the convenient use of the footway; that the platform at the southern railway junction was of the specified dimensions but not continuous and was amply sufficient for the requirements of the traffic on the road; that there was a double track on Colborne street and that owing to the state of the street by reason of the encroachment of McGregor’s Creek the rail was not kept eight feet from the centre of the street as required by the by-law allowing the laying of the track on Colborne street, and the station on Colborne street was not placed at the corner of Colborne and William streets but a block away from William street at or near the corner of Colborne and Adelaide streets.
There was conflicting evidence as to whether the station could be put nearer to William street so as to be convenient and useful to the public and the company, so there was not a strict compliance with the terms of the plaintiff’s agreement unless the distance between the station and William street was not so great as to prevent it coming within reasonable intendment of the meaning of the word “near.”
The cause was tried before the Chief Justice of the Common Pleas who held that the plaintiffs’ title to the debentures did not depend upon the performance of the requirements of the agreement not provided for in the by-law, and for any breach of the same the defendants’ remedy would be under the counter-claim for damages. His Lordship held the plaintiff bound to perform the following conditions of the by-law before he could succeed in this action:
“First. The construction and completion for running of the track and road from Chatham to the Canada Southern Railway on or before the 30th day of June, 1883.
‘‘Secondly. The completion of the whole track and road with stations and freight houses and other necessary accommodations attached and station, freight house and platform of the stipulated dimensions at the Canada Southern crossing.
“Thirdly. The bridge and foot way over the Thames, with the necessary approaches.
Fourthly. The completion of the road in other respects, supplied with all necessary rolling stock and materials so as to connect the town with the places named to the satisfaction of the Commissioner of Public Works, or an engineer appointed by him, and,
Lastly, upon the company bonâ fide thereafter running the said road with all necessary accommodation for the public and with connection at the track of the Canada Southern for one week.” And he held that these conditions were all substantially performed, and that the plaintiff was entitled to the debentures and to a writ of mandamus to compel their delivery.
Another ground of defence set up was that the by-law was ultra vires for not complying with the provisions of the plaintiffs’ charter, which, it was contended, overrides the Municipal Act in respect to aid to railways. His Lordship overruled this contention and held that the special act is not restrictive but only enabling and enlarging the power of municipalities under the Municipal Act, and the latter being complied with the by-law was intra vires of the corporation.
The defendants appealed from the judgment of the Chief Justice and the Court of Appeal varied that judgment by decreeing the defendants entitled to specific performance of the agreement as to the station on the corner of Colborne and William streets, with a reference to the master to ascertain the damages to be paid defendants for want’ of such station to date of judgment. The mandamus was stayed until the master should report. In other respects the judgment of the Common Pleas was sustained. Both parties appealed to the Supreme Court of Canada.
S.H. Blake Q.C. and W. Cassels Q.C. for the appellants.
All the judges in the courts below have found that the conditions in the by-law were complied with and those of the agreement were independent of each other. The plaintiffs have therefore performed all the conditions required to entitle them to the debentures. See Wilson v. Northampton & Banbury Junction Ry. Co.[3]; Jessep v. G.T. Ry. Co.[4]; Mead v. Ballan[5]; Lytton v. Great Northern Ry. Co.[6]; Desjardin Canal Co. v. Great Western Ry. Co.[7]; Powell Duffryn Steam Coal Co. v Taff Vale Ry. Co.[8]; Blackett v. Bates[9].
Christopher Robinson Q.C. and Wilson for the respondents cited Wallace v. Great Western Ry. Co.[10]; Hodges on Railways[11]; Wilson v. Furness Ry. Co,[12]; Rigby v. Great Western Ry. Co.[13]; Hood’s Case[14]; Firth v. Midland Ry. Co.[15]; Green v. West Cheshire Ry. Co.[16]; C.A. Ry. Co. v. County of Ottawa[17].
SIR W.J. RITCHIE C.J.—The statement of this case is to be found at length in the judgment of Chief Justice Cameron[18].
Neither party was satisfied with the decision of the learned Chief Justice and both parties appealed to the Court of Appeal for Ontario; that court decreed in substance as follows[19]:—
From this decree both parties also appealed; the plaintiff, however, limited his appeal to that portion of the judgment given upon the counter claim of the defendants construing the covenant in the agreement in reference to the construction of the station at or near the corner of Colborne and William streets and ordering specific performance of such agreement.
The by-law under which the debentures are claimed in this case is as follows[20]:—
The agreement dated the 3rd of Nov. 1882, between the Erie and Huron Railway Co. and the Town of Chatham recites that:—
And whereas the said Co. in order to complete its road and pro- vide it with rolling stock and all necessaries, requires a further bonus of $30,000 in debentures from the said town payable on obtaining the certificate of the Government’s Engineer of the completion of the said road, according to the terms of a by-law to be submitted to the electors of said town, and the running thereof for one week, and in order to induce the town to submit and pass the said by-law and give such aid, has offered to execute a binding agreement with the town containing the terms and obligations on the part of the Co. hereinafter set forth.
And whereas the town, upon the consideration of such binding agreement, has agreed to read, submit to the electors, and with their consent finally pass, such by-law to give further aid to said company as in the by-law set forth.
This very clearly shows that the by-law and agreement were to be considered as two separate and distinct instruments, and the certificate, on the obtaining of which the debentures were to be issued, was to be of the completion of the road according to the terms of the by-law to be submitted, and not according to the terms of the by-law and to the stipulations contained in the agreement but not inserted in the by-law and forming no part of it.
On the 1st of Nov., 1883, Mr. C.F. Fraser, Commissioner of Public Works for Ontario, appointed Robert McCallum, C.E., “as engineer under the by-law of the Town of Chatham taking effect on the 30th December, 1882, giving a bonus to the Erie and Huron Railway, for the purpose of certifying as by the said by-law is required.’’
I can discover nothing to impeach this engineer’s certificate. I do not think the engineer, McCallum, acted in any way as a judge or arbitrator between the town and the railway company or Bickford; all he had to do was personally to examine and inspect the road and to certify whether or not in the terms of the by-law (section 1) the road, &c., was constructed and supplied, &c., in accordance with the by-law to his satisfaction. I can see nothing in the nature of his office, or the performance of his duties, that required notice to either party, either of his appointment or of the time he would make his inspection. I do not think the by-law requires the engineer’s certificate to say anything outside the by-law which does not refer to nor incorporate with it any agreement; the certificate was to certify as to the completion according to the] by-law and not according to any agreement forming no portion of the by-law. The certificate of the engineer is substantially in accordance with the terms of the by-law and the evidence shows that all that the by-law requires had been performed.
If, then, all the conditions contained in the by-law have been complied with, and I think the learned Chief Justice was right in so holding, why should not the debentures issue? It was on these conditions being complied with that the municipality and ratepayers agreed that the debentures should issue; what right have we to go outside of the by-law and say they should not issue? If the town of Chatham or the taxpayers had wished to make the issue of the debentures on other conditions they should have had them inserted in the by-law.
There appears to have been a great diversity of opinion in the town as to the propriety of establishing the station at Colborne Street; might this not have been the reason why nothing was said about it in the by-law as, if mentioned, the passing of the by-law by the ratepayers might thereby have been jeopardized? Otherwise, why was this not inserted in the by-law if the town and the ratepayers intended that the construction of the station at or near the corner of Colborne and William streets was to be a condition precedent and on the fulfilment of which the debentures were to issue? So far, as a matter of fact, from this by-law being passed because of this particular stipulation I think the inference from the evidence is that this was rather kept in the background for fear, by reason of the conflict of opinion, the ratepayers might refuse to pass the by-law.
I think all the evidence as to what was said before the submission to the ratepayers, or during the canvass or discussion at any public meeting of ratepayers or others, in the absence of fraud which is not alleged or proved, was wholly irrelevant and, in my opinion, should not have been received as influencing, in any way, the construction that should be placed on either the agreement or by-law, or both.
The municipality not having chosen to insert in the by-law any provision or condition for the constructing and establishing of a station at Colborne street, and the ratepayers, on the 13th December, 1887, having, by their vote, consented to the issuing of the debentures without any such condition, I am of opinion that the provisions in the agreement, but not inserted in the by-law, must be treated and dealt with as separate and distinct from the by-law and as independent covenants, and, as I have said, the conditions of the by-law having been complied with the debentures should issue, and for any breach of the agreement outside of the by-law the municipality and ratepayers, not having made the issue of the debentures dependent on the fulfilment of the agreement, must seek indemnity for any breach of such agreement in damages and not seek to enforce the agreement by withholding the debentures.
I participate in the doubt expressed by Mr. Justice Osler as to the correctness of the finding, as a matter of fact, that at or near the corner of Colborne and William streets may mean at or near the corner of Colborne and Adelaide streets, in another block and with other streets intervening; the evidence satisfies me that there was no impossibility in erecting or working the station at or near the corner named, though no doubt, it may have been a very inconvenient spot for the working of the railway, but I am not disposed to differ from the learned Chief Justice and I entirely agree with him that this station was not essential to the completion of the road in accordance with the by‑law and therefore does not prevent the accruing of the plaintiff’s title to the debentures, because I agree with him that this does not depend upon the performance of stipulations in the agreement not provided for by the by-law; that for the breach of plaintiff’s agreement not covered by the conditions of the by-law the remedy of the defendants is under their counter‑claim for damages for such breach.
The conditions of the by-law, the fulfilment of which are conditions precedent to the right of the plaintiff to the debentures, are[21]:—
The Chief Justice then says:—
There was no dispute as to the completion of the road for running to the Canada Southern by the time stipulated. The evidence satisfies me the second condition was fulfilled, that is to say, the construction of the whole road, with stations, freight houses and other necessary accommodation attached, and platform accommodation stipulated for at the Canada Southern Junction, or crossing. I am also satisfied that the bridge across the Thames was a substantial compliance with the requirements of the by-law in respect thereto. The approaches were sufficient.
In this conclusion, after a very careful perusal of all the evidence in the case, I concur.
I think the construction of the clause of the agreement in relation to the Colborne and William streets station which is as follows[22]:—
involves all the necessary accommodation for the continuous and ordinary use by the public of the station when constructed. How can it be that there is all necessary accommodation at a station where there is no station master, ticket officer, baggage master or other servants connected therewith? How can it be said that, there is a freight and passenger station with all necessary accommodation connected by switches, sidings or otherwise with said road of the company to which no trains are to be run or if run then no accommodation for freight or passengers to enable the one or the other to be carried from or to the station? I cannot think that the mere erection of a building called a station, and the abandonment of its use as a station, is a performance of the agreement. It seems to me almost a mockery to say there is a station there with all necessary accommodation to which a train is never run and access to which is impossible by reason of the waiting room and ticket office being closed and no person to attend to passengers or to receive and forward freight. What accommodation is afforded by a room called a waiting room, ticket office and freight room, and a platform, if neither the one nor the other can be used by passengers or for freight? I think the connection by switches, sidings and otherwise with the main road of the company shows that the station to be erected was to be ordinarily worked and used as part and parcel of the road by the company, and I am the more impressed with the correctness of this by reading the by-law which grants to the company the right to make its road and lay its rails “along the southerly side of Colborne street from the main line to William street, &c.,” and which the company and Bickford adopted and acted on. It recites that,
Whereas the said company and Bickford have agreed to construct and establish a station and freight house and other necessary accommodation for said company and the public at the corner of Colborne and William streets upon the council of said corporation passing this by-law; and whereas the council of said corporation desires that such station and freight house and other accommodation should be erected and established.
Now, what can be the fair meaning of constructing and establishing a station and freight house with necessary accommodation, not for the company alone but for the said company and the public, if it is not to fix, permanently and unalterably, for the ten years the train was to run, a station and freight house with all necessary accommodation for the use, not only of the company but of the public? And who can say that the erection of a building, not to be used as a station and freight house but locked up, with no necessary accommodation for the public to enable the station to be used as such, is satisfied by a station building where no tickets can be obtained and from which no trains are to come and go? I think it is not. I think the true construction of the contract was to construct and establish a station with all such accommodation for the public as is ordinarily to be found at a station from which trains regularly run, and at which passengers are taken up and freight received and delivered. I think the observations of Chief Justice Hagarty with reference to the provision in the agreement to run the road continuously for at least ten years, and with reference to the clause as to Colborne street station, are conclusive that the whole sense of the words used points to a continuous use, and I agree with him that it would be a monstrous injustice to hold that a company may accept the full consideration as to stations, &c., and refuse to place them in a position to be used.
Assuming that the station was properly located I am of opinion that the station and station accommodations are not sufficient to answer the requirements of the plaintiff’s covenant, being deficient in proper accommodation for loading and unloading freight and the absence of all accommodation for the public. The majority of the Court of Appeal have considered that the defendants are entitled to specific performance of the agreement in the pleadings mentioned as to the station on Colborne street in the town of Chatham, as claimed by the defendants in their counter-claim. Now, what have they claimed?
(c) That they may be ordered to construct and maintain a freight and passenger station with switches, sidings and all other necessary accommodation for the defendants upon lands of or to be purchased by the plaintiffs at or near the corner of Colborne and William streets, and to provide and keep a station master, ticket and baggage officer, and other necessary and ordinary servants of the said company thereat, and to stop all ordinary trains thereat, and not to run such trains past said town without going to and staying at said station for the purpose of taking up and setting down passengers or freight, or both, and that they use and establish such station as the principal and main station for Chatham.
This, I think, cannot be so adjudged. This is not the performance of a definite work to be performed once for all. It is clear that the court may exercise a discretion in granting or withholding a decree for specific perfermance, and I think it is equally clear that such a decree will not be made when the terms of the agreement are vague and its effect is to throw on the court the duty of superintending the performance of a series of continuous acts involving the exercise of skill, personal labor and judgment.
I think the case of Wilson v. Northampton & Banbury Junction Railway Co.[23] very distinguishable from the present. There the station mentioned in the schedule, so far as it related to the station to be erected, was in the following words—“a station to be made on lots Nos. 24, 25 and 26, parish of Wappingham, or some part or parts thereof.”
Very different, indeed, from the station which the plaintiff undertook to construct in this case. If then, the construction of a freight and passenger station involves the necessity of maintaining it and providing the necessary officers and means of keeping it in a state of accomplishing the purposes \of a freight and passenger station, as the Court of Appeal think and as I think it does, then it necessarily involves the keeping of the station open at suitable times for passengers and freight and the carrying on of the business of a freight and passenger station, requiring the performance of personal acts and duties involving the continuous exercise of skill and judgment as well as good faith and diligence in determining the nature and extent of the facilities required at a suitable station. If so would not this constitute the performance to be decreed and if decreed impose on the court the duty of seeing that the performance was within the intent of the contract, and the non-performance of which could only be punished by repeated attachments?[24].
The result of decreeing specific performance in such a case as this would compel the court to superintend the execution of this particular stipulation for, at any rate, the ten years that the agreement provides that trains shall run, which, in my opinion, is contrary to the authorities which, I think, conclusively show that the court will not superintend the performance of such continuous acts.
Nothing can very well be more vague and uncertain than this agreement. Upon what land is this station to be constructed? The defendants claim it is to be on lands of, or to be purchased by, the plaintiff at or near the corner of Colborne and William streets. How is the court to determine the exact site and upon what lands of the plaintiffs or, if they have no suitable lands, what lands are they to be required to purchase? Then, as there is no certainty as to where the station is to be placed there is no certainty as to the character of the station, no plans, no specifications, no provision as to dimensions, material or workmanship by which the officer of the court, with the agreement, claim and decree in his hands, could determine whether the agreement had been specifically performed or not.
The English and American authorities seem very clear that courts of equity will not enforce the performance of continuous duties, involving personal labor and care of a particular kind which the court cannot superintend. Of the numerous cases to be found in the books I shall notice a very few which seem to me to bear directly on this case.
Marble Company v. Ripley[25]:
Mr. Justice Strong:
Another serious objection to a decree for a specific performance is found in the peculiar character of the contract itself and in the duties which it requires of the owners of the quarries. These duties are continuous. They involve skill, personal labor, and cultivated judgment. It is, in effect, a personal contract to deliver marble of certain kinds, and in blocks of such a kind that the court is incapable of determining whether they accord with the contract or not. The agreement being for a perpetual supply of marble, no decree the court can make will end the controversy. If performance be decreed the case must remain in court forever, and the court to the end of time may be called upon to determine, not only whether the prescribed quantity of marble has been delivered, but whether every block was from the right place, whether it was sound, whether it was of suitable size, or shape, or proportion. Many of the difficulties in the way of decreeing specific performance of a contract, requiring, as this does, continuous personal action, and running through an indefinite period of time, are well stated in The Port Clinton Railroad Co. v. The Cleveland and Toledo Railroad Co.[26]; Fry on Specific Performance[27]
Port Clinton Ry Co. v. Cleveland & Tol Ry. Co.[28]: Molson J.:
It is different from the case where the act to be done would produce some tangible result, which could be inspected and compared with the requisitions of the contract. When no such result follows the personal act, but the act involves the continuous exercise of skill, judgment or discretion, the manner and mode of which are, from its very nature, undetermined, the difficulty of a specific performance seems almost insuperable.
Even in cases where there would be a visible and tangible product from the personal act, if the contract does not define and determine the character of that product, the court will not supply that which has been left by the parties as a matter of individual judgment, taste or discretion. Thus, in a class of cases in which there has been a diversity of opinion as to the propriety of a specific performance, the building a house on particular land, the covenant to build must have a definite certainty as to size, materials &c. Story Eq. Jur.[29]
Blanchard v. Detroit and Lake Mich. Ry. Co.[30]:
Graves C.J.:
If, however, it appears, either that the things to be performed are in their nature incapable of execution by the court, or that needful specifications are omitted, or that material matters are left by the parties so obscure or undefined, or so in want of details, or that the subjects of the agreement are so conflicting or incongruous, that the court cannot say whether or not the minds of the parties met upon all the essential particulars, or if they did, then cannot say exactly upon what substantial terms they agreed, or trace out any practical line where their minds met, the case is not one for specific performance.
As the court does not make contracts for parties so it never undertakes to supply material ingredients which they omit to mention, and which cannot be legitimately considered as having been within their mutual contemplation. And where the party to perform is left by the agreement with an absolute discretion respecting material and substantial details, and these are therefore indeterminate and unincorporated until by his election they are developed, identified, and fixed as constituents of the transaction, the court cannot substitute its own discretion, and so by its own act perfect and round out the contract. If the court were to do this it would be to assume a right not belonging to it, but one which the parties reserved to themselves. P. 54. It is, first, that defendants shall make and maintain on the premises a depot or station house, suitable for the convenience of the public.
Second, that during all future time, when trains run on the road, at least one train each way shall every day stop thereat, and third, that for all future time freight and passengers shall be regularly received and discharged at such depot.
P. 58. Without going further in this view of the case, it is only needful to say that it seems obvious that the very nature of the provision sought to be enforced is such as to render the remedy impracticable. But if this objection were not insuperable there would be still another in the want of details and lack of particularity and specification. The specific location is not given for the building, nor is there anything certain as to the plan, size, shape, materials or arrangement of the building. All this appears to have been left by the assent of the parties, substantially to the judgment, and discretion of the grantees. The only specification, the only limit upon such judgment and discretion, the parties saw fit to make, was that it should be suitable for the convenience of the public. For many purposes this might be considered definite enough. It would be in a charter in which the end to be obtained would be presented as the object of the legislature, whilst everything in regard to details and means would be rightly and purposely left to the company. But for a building contract or an agreement to be executed by the court, it is not so. If the court were to attempt to decree, what direction could it give as per contract in regard to the plan, size, shape, materials, arrangement and cost? If what would now satisfy the interest of the public were known it might guide as to the present size and arrangement; but it could go no further. What is needful now may be otherwise in time, and future changes in the state of the country or in business may wholly disappoint all present calculations. The public interest may require many alterations. But the reference to the public convenience gives no clue whatever as to the materials, or in regard to other essential matters.
Powell Duffryn Steam Coal Co. v. Taff Vale Railway Co.[31]
Mr. Greene Q.O. and Mr. Marten Q.C. for the appellants:
We have a statutory right to use the railway under the Railway Clauses Consolidation Act, 1845, s.92, and we seek to have that right protected. In Bell v. Midland Railway Company[32] the court interfered to protect statutory rights under the act, and in Green v. West Cheshire Railway Company[33] it interfered, by way of specific performance, to make a railway company construct and maintain a siding.
The Lord Justice James:
I doubt whether this court can give effect to the rights Conferred by sect. 92. As far as my experience goes, the court has never ordered anything which involves doing something from day to day for an indefinite period.
The Lord Justice Mellish:
I feel the same doubt, and am disposed to think that a court of common law would feel the same difficulty as to a mandamus, A court can only order the doing something which has to be done once for all, so that the court can see to its being done. The Railway Clauses Act was passed at a time when the working of railways was not well understood. The legislature seems to have considered that there was no more difficulty about running over a railway than along a turnpike road. It is found now that the use of points and signals is required: but how can the court see to the defendants working them day after day for a series of years?
Gervais v. Edwards[34].
The Lord Chancellor:
If the jurisdiction of this court permitted it, I should willingly grant a specific performance of this agreement, because the merits are altogether on the side of the plaintiff; but I do not see how it is possible specifically to execute this contract. The court acts only, when it can perform the very thing, in the terms specifically agreed upon, but when we come to the execution of a contract, depending upon many particulars, and upon uncertain events, the court must see whether it can be specifically executed; nothing can be left to depend upon chance; the court must itself execute the whole contract.
Waterman on the Specific Performance of Contracts[35]. Contracts incapable of being enforced.
Equity will not inforce the performance of continuous duties involving personal labor and care of a particular kind which the court cannot superintend as the working of points and signals on the line of as railroad requiring constant supervision; Powell Duffryn Steam Coal Co. v. Taff Vale Ry. Co.[36], or a contract to build and equip a railroad, Danforth v. Philadelphia, etc., Ry. Co.[37], or to work all the trains on a railroad, and keep the engines and rolling stock in repair; Johnson v. Shrewsbury and B.R.R.[38], or to use the railroad of another company with engines and trains, which the court cannot regulate and control; Powell Duffryn Steam Coal Co. v. Taff Vale Ry. Co.[39] or an agreement by a railroad company to maintain and keep in repair cattle-guards upon the land of the plaintiff; Columbus, &c., Ry. Co. v. Watson[40], or a covenant in the lease of a coal mine to work the mine efficiently; Wheatley v. Westminster Coal Co.[41], Lord Abinger v. Askton[42], or an agreement by a street railroad company to run cars along a particular street daily, “at such regular intervals as may be right and proper,” whether the obligation of the company rests in contract, or is derived from the provisions of its charter. McCanny v. South, &c., Ry. Co.[43]
P. 70 S. granted to a railroad company a right of way through his premises on condition that the company would place beside its road on said premises a platform convenient for loading and unloading cars, take therefrom all produce shipped by S., and bring and place thereon all freight shipped by or for him to that point from any other station on the road provided the company had three days’ notice. Held that S. could not compel specific performance. Atlanta, &c., Ry. Co. v. Speer[44].
P. 70 n. In this case the court said:
We are not asked to compel the plaintiffs in error to transport a particular kind of freight now being on the platform awaiting transportation—we are asked that they shall, in all future time, transport all freight and deliver it as required by defendant in error in the terms of the contract. It is evident that any such decree must be as general and as indefinite in its terms as the contract itself. It cannot specify as to the kind of produce, the quality, the time of performance; nor can the court make a decree, which will be satisfied by any specific act of peformance. After decree made the case must be kept open, and if the defendant in that decree be contumacious, there must be action of the court to enforce it 20, perhaps 50 times a year for all time. Besides in regard to each alleged violation of the contract, the other party is entitled to a hearing, He may insist that the freight in question at one time is not of the description contemplated in the contract; at another that it is not the property of the party complaining; at still another, that notice had not been given in the terms of the contract. We are satisfied that this is not a contract of which performance can be compelled by one sweeping decree embracing all time and all instances demanding performance. The party has an adequate remedy at law, and doubtless would be redressed there. The following clause in a deed to a railroad company is incapable of being specifically enforced; this conveyance is made upon the express condition that said railroad company shall build, erect and maintain a depot or station house on the land herein described, suitable for the convenience of the public, and that at least one train each way shall stop at such depot or station each day when trains run on said road, and that freight and passengers shall be regularly taken at such depot. Blanchard v. Detroit etc., R.R. Co.[45] Graves C.J.: Can the court see that in all coming time these requirements are carried out? Can it know or keep informed whether trains are running, and what accommodations are suitable to the public interest? Can it see whether the proper stoppages are made each day? Can it take notice or legitimately and truly ascertain from day to day what amounts to regularity in the receipt and discharge of passengers and freight? Can it have the means of deciding at all times whether the due regularity is observed? Can it superintend and supervise the business, and cause the requirements in question to be carried out? If it can, and if it may do this in regard to one station on the road, it may, with equal propriety, upon a like showing, do the same in regard to all stations on the road, and not only so, but in regard to all stations on all the present and future roads in the state. That any such jurisdiction is impracticable appears plain, and the fault lies in the circumstance that the objects of the parties as they were written down by them, are, by their very nature, insusceptible of execution by the court. In a suit for specific performance by a landowner against a railroad company it appeared that the company, in consideration for the right of way for their track over the plaintiffs’ land, agreed to fence the same, to deliver to the plaintiff certain bonds, and to release him from a subscription to the stock of the company. It was held that the facts alleged entitled the plaintiff to a judgment for damages, but not to specific performance. Cincinnati and Chicago Railroad Company v. Washburn[46]. A court of Equity as a temporary measure during the pendency of a litigation, may undertake by means of a receiver to operate a railroad. Coe v. Columbus, &c., R.R. Co.[47] But it will only do this when the demand for the exercise of such a jurisdiction is imperative, and the court can make an order of limited duration, and give precise directions as to the manner in which the order shall be carried out Port Clinton R.R. Co. v. Cleveland & Toledo R.R. Co.[48]; see Richmond v. Dubuque & Sioux City R.R. Co.[49] A demurrer was sustained to a bill filed for the specific performance of an award which required that the defendant should execute to the plaintiff a lease of the right to such part of a railway made by the plaintiff as was on the defendant’s land, and that the defendant should be entitled to run carriages on the whole line on certain terms, and might require the plaintiff to supply engine power, while the latter should have an engine on the road; and that the plaintiff, during the whole time, should keep the entire railroad in good repair. The court remarked that it “had no means of enforcing the performance of daily duties during the term of the lease; that it could do nothing more than punish the party by imprisonment or fine in case of failure to perform them and might be called on for a number of years to issue repeated attachments for default.” Blackett v. Bates,[50]. Specific performance was refused of a contract concerning the use and enjoyment of a quarry providing for “the delivery of certain kinds of marble in good sound blocks of a suitable size, shape, and proportion, and to quarry to order, as might be wanted to keep the mill fully supplied at all times, the amount to be not less than 75,000 feet per annum, and for so long a time as the said Ripley, his heirs, executors, administrators and assigns, might want.” The court said: “The agreement being for a perpetual supply of marble, no decree the court can make will end the controversy. If performance be decreed, the case must remain in court forever, and the court, to the end of time, may be called on to determine, not only whether the prescribed quantity of marble has been delivered, but whether every block was from the right place, whether it was sound, whether it was of suitable size, or shape, or proportion. Meanwhile, the parties may be constantly changing. It is manifest that the court cannot superintend the execution of such a decree. It is quite impracticable. And it is certain that equity will not interfere to enforce part of a contract, unless that part is clearly severable from the remainder.” Marble Co, v. Ripley[51]. In a suit to compel the defendant to convey to the plaintiff certain land, it appeared that the defendant and another person owned the land, and that, being desirous of having it partitioned, the defendant employed the plaintiff to do the business, agreeing that for plaintiffs’ services, he would convey to him 320 acres of defendant’s share of the land. A bond was given to secure the performance of this agreement, giving to the plaintiff the right of selection, and making it incumbent on the defendant to convey as soon as the selection was made. A partition having been partly effected, further proceedings therein were postponed until the boundaries of the land could be fixed by proper authorities. This was not done until three years afterwards, when the plaintiff proposed to complete the partition; whereupon he made a selection, and demanded a conveyance. It was held that, as the plaintiff could not be compelled to complete the service he had agreed to perform, nor the defendant to accept them, the contract was not one which could be specifically enforced. Cooper v. Pena[52]. Although usually a contract, relating to personal services, will not be specifically enforced, but the party aggrieved will be left to his remedy at law, yet there is an exception to the rule, when by the contract, something is to be done, on a party’s own land, of such a nature that the opposite party will be deprived of the benefit of labor and materials bestowed thereon, unless the contract is carried out, and the owner of the land is attempting thus to deprive him. Within this principle, a contract between a waver power company and a city, that the former should construct extensive certain water works, of a capacity to supply the city daily with a specified quantity of water, the works having been constructed, was enforced against the city. Columbia Water Power Co v. Columbia[53].
P. 72. But if the work agreed to be done is definite, and there is no remedy at law, specific performance will be decreed; as the construction by a railroad company of an archway under their road pursuant to their contract. Storer v. Great Western Ry. Co.[54] So specific performance was decreed of a contract between the owner of land and a railroad company that, in consideration of the previous withdrawal by the land owner of a petition to parliament against the company’s bill, the company would construct and forever maintain at their expense a siding of a specified length along the line upon the premises of the land owner and set apart by him for that purpose. Green v. West Cheshire Ry. Co.[55] As to the order that the mandamus should not be enforced until after the report of the master, and the damages, if any, paid or security given, but for the limit by the plaintiffs of their appeal, as at present advised. I am at a loss to discover upon what principle we can withhold the delivery of the debentures and make such delivery dependent upon the payment or security of the damages assessed. If the agreement formed a portion of the by-law, or was to be read as a part of it, and so the erection of the station with all necessary accommodation in the way of buildings, appliances, officers and attendants maintained and used in the regular and continuous running of the road, was a condition precedent, as it was not complied with the plaintiffs claim to the debenture should be dismissed. If it is not to be treated as a condition precedent to the giving of the debentures, I am unable to see what right we have, or upon what principle we can allow the defendants to retain the debentures as decreed. If the defendants were not satisfied with the security of the agreement they, it appears to me, should have stipulated for some better security; not having done so I do not see how the dedentures can be withheld without making an entirely new and different agreement from that entered into by the parties and to which the plaintiffs have never assented and for which the defendants, so far as I can see, in the proceedings have never asked.
But, as the plaintiffs have limited their appeal to the construction of the agreement and the order for specific performance I must assume that the retaining of the debentures until the payment, or security was given for the payment, of the damages was considered by the plaintiffs, under the circumstances, a fair and reasonable provision.
I agree with Chief Justice Cameron that section 559 sub-section 4 of the Municipal Act, R.S.O., cap. 174, the act in force when the by-law was passed, justifies the passing of the by-law; and I also agree that 44 Vic. cap. 24, sec. 28, validates the by-law now in question as passed.
I think there is nothing in the objection that the validating act does not apply when no debentures have been actually issued. By reason of the terms in the validating act “every such by-law so registered and the debentures issued thereunder shall be absolutely valid and binding.”
If the by-law is valid by reason of this section 28 of 44 Vic. cap. 24, as I think it was, then the by-law is good and must be acted on, and if the conditions of the by-law have been complied with the debentures must be issued in accordance therewith, the issue of the debentures depending on the validity of the by-law under which they are to be issued.
The Court of Appeal has not passed on the question of the workshops but has, as the learned Chief Justice in the court below did, reserved the right to the defendants to take such action as they may be advised as to them at some future time.
I agree with the Court of Appeal that as to the wrongful continuance of the track upon the street a claim for damages does not seem to be an appropriate remedy.
I do not think the defendants’ counter-claim should be dismissed but that they should have damages assessed in this suit for the damages they can show have been sustained by reason of the breach of the contract as to the station. I think there should be a reference on the counter-claim to ascertain the amount of the defendants’ damages.
I think the decree in this case should be amended by striking out of the 3rd paragraph the words “that the defendants are entitled to a specific performance of the agreement in the pleadings mentioned as to a station on Colborne street, in the said town of Chatham, as claimed by the defendants in their counter-claim” and “up to the date of this judgment,” and by striking out the last clause.
STRONG J.—All the learned judges who have pronounced upon this case in the courts below, as well the four judges in the Court of Appeal as the late Chief Justice of the Common Pleas, before whom the action was tried, have determined that the objections to the validity of the by-law were not sustainable. With them and for the reasons given in the judgments of the Chief Justice of the Common Pleas and of Mr. Justice Burton, which I fully adopt and therefore need not repeat, I am of opinion that the special act of incorporation of the company does not take the case out of the operation of the general municipal law, but that the powers conferred on municipalities by the latter act are applicable. This being so the 28th section of the Ontario Act, 44 Vic., ch. 24, is relied upon as covering any objections which might be made to the by-law upon the ground of non-compliance with the requirements of the municipal act as regards recitals or otherwise. The statute in question, 44 Vic. ch. 24, is an act for the amendment of the general municipal law, and sec. 28 is as follows:—
Every by-law passed by any municipality for contracting any debt, by the issue of debentures for a longer term than one year, and for levying rates for the payment of such debts, on the ratable property of the municipality, or any part thereof, shall be registered by the clerk of such municipality, it a county, in the registry office for the county in which the county town is situate, or in case of callo municipalities in the registry office of the registration division in which the local municipality is situate, within the two weeks after the final passing thereof by such municipality; and every such by‑law so registered and the debentures issued thereunder shall be ab- solutely valid and binding upon such municipality according to the terms thereof, and shall not be quashed or set aside on any ground whatever, unless an application or suit to quash or set aside the same be made to some court of competent jurisdiction within three months from the registry thereof.
The Chief Justice of Ontario says in his judgment:
It is conceded that this by-law was registered as directed and no application was made within the three months.
And in the argument at this bar the due registration of the by-law and the omission of any application to set it aside within the prescribed time were conceded as admitted facts by the learned counsel for the respondents. It must therefore now be held that the by-law is valid and binding on the municipality.
The next question to be considered is as to the performance by the railway company of the terms of the by-law which were conditions precedent to the issue of the debentures. In this respect, also, I agree in opinion with the learned judges of the courts below, all of whom considered that the provisions of the contract between the town and the railway company dated the 3rd November, 1882, set out in full in the statement of defence, are not to be imported into or construed as part of the by-law. In the words of the Chief Justice of Ontario I read the covenants in this agreement as independent and not as dependent covenants. Although the agreement was intra vires both of the town and the railway company and therefore binding on the latter we are not to consider the stipulations contained in it as avoiding altering or qualifying the express conditions of the by-law, an instrument of later date. An insuperable objection, in my opinion, to a contrary construction is that the assenting and agreeing parties to the two instruments are different. The by-law is assented to by the body of ratepayers, the agreement, so far as the town is concerned, emanates from the council alone. If the by-law had been passed first, no one could contend that any alterations in its terms could have been effected by a contract entered into with the town through the mayor and council. Then the fact that the agreement preceded the by-law so far from being a reason for any difference in this respect makes the objection to such a variation still stronger. Authority to issue debentures could only have been conferred by a by-law assented to by the ratepayers who were never called upon to vote upon a by-law incorporating the terms of the agreement. The railway company to entitle itself to the debentures is therefore bound to show performance of the terms and conditions imposed by the ratepayers, but of no others. The by-law and the agreement being then between different parties, the contract is therefore necessarily entirely collateral to and independent of the by‑law. As regards the contract of the 4th Dec, 1882, between the railway company and the other plaintiff. Bickford, for making the railway,—I know of no principle upon which that can be said to have any influence upon the construction of the by-law. It was between different parties entirely and the railway company never undertook to come under the same obligations to the town as Bickford by this contract had assumed towards them. To read the provisions of this last contract as if incorporated in the by-law would be, in my opinion, to make a contract for the parties which they never entered into, besides being open to all the objections already taken with reference to the agreement of the railway company with the town that it would be an innovation upon the terms of the by-law which the ratepayers never assented to and were never as much as called upon to consider. I quite agree, therefore, that the courts below were right in the view which they took of the principal action,— the proceeding instituted by the railway company, and Mr. Bickford claiming under it by assignment, to enforce the delivery of the debentures—viz., that the right of the plaintiffs in this respect depended exclusively on their ability to show that they had performed the conditions precedent set forth in the body of the by-law itself and that they were not bound to go further and show a performance also of the stipulations of the agreement.
Then to consider the plaintiff’s right to recover, in this aspect, we find that so much of the by‑law as specifies the work to be performed by the railway company as preliminary to the issuing of the debentures is contained in the first clause which is as follows:—
That upon construction and completion for running of the track and road of the Erie and Huron Railway Company from the town of Chatham to the Canada Southern Railway, on or before the 30th day of June, A.D. 1883, or such later date as the Council of said town may by resolution from time to time fix; and upon construction and completion, within two years from the date on which this by-law takes effect, of the whole track and road of said Erie and Huron Railway Company from the town of Dresden and village of Wallaceburg, to the Rondeau Harbor, laid with steel rails and with stations and freight houses and other necessary accommodation attached and connected therewith, and with a station and freight house and switches or sidings at the crossing of the track of the Canada Southern Railway Company, so that trains can run off the track of the Erie and Huron Railway Company upon, or parallel with and adjacent to, the track of the Canada Southern Railway Company, with a platform 600 feet long adjacent to and parallel with the said last mentioned track, and 400 feet long and adjacent to, and parallel with the track of the Erie and Huron Railway Company; and upon the construction of a bridge over the Thames with an iron or wooden swing, and an adjoining bridge and way for foot passengers over said river not less than four feet in width; and upon the complete construction of said road in other respects, supplied with all necessary rolling stock and materials, so as to connect with the said town, with Rondeau, Blenheim, the Canada Southern Railway, Dresden, and Wallaceburg, to the satis- faction of the Commissioner of Public Works for the time being for Ontario, or an engineer appointed by him; and upon said company thereafter bond fide running said road with all necessary accommodation for the public, and with connection at the track of the Canada Southern Railway Company for one week; the mayor or other head and clerk for the time being, &c., shall forthwith, &c., sign and issue the debentures, &c.
The Chief Justice before whom the case was tried found that the requirements as to time had been complied with, that is to say that the railway had been completed to the Canada Southern Railway before the 30th June, 1883, and that the whole line of railway had been completed within the prescribed period of two years, and further that the company had complied with the last condition that it should bonâ fide run the road with all necessary accommodation for the public and with connection at the track of the Canada Southern Railway C6mpany for one week. As regards the sufficiency of the work, the provisions that the line should be laid with steel rails, and furnished with stations and freight houses and other necessary accommodation attached and connected therewith, and with a station and freight house and switches or sidings at the crossing of the track of the Canada Southern Railway Company so that trains can run off the track of the Erie and Huron Railway Company, upon or parallel with and adjacent to the track of the Canada Southern Railway Company, and the provision as to the platform at this junction with the Canada Southern Railway, and the complete construction of the road in other respects, supplied with all necessary rolling stock and materials all of which was (as in concurrence with both courts below, I construe the by-law) to be done to the satisfaction of the Commissioner of Public Works for the time being for Ontario or an engineer appointed by him, it is sufficient to say that it is all covered by the certificate or report of Mr. McCallum the engineer appointed for the purpose by the Commissioner of Public Works. That certificate is as follows:—
This is to certify that on the 23rd day of December, 1884, I made an examination and inspection of the Erie and Huron Railway from Rondeau Harbour to the town of Dresden, and from Dresden to Wallaceburg, and I have in connection with such examination perused the agreement entered into between the Erie and Huron Railway Company and the corporation of the town of Chatham, dated November, 1882, also the by-law of the town of Chatham passed in the month of December, 1882, granting a bonus of $30,000 to the said railway company upon certain terms and conditions.
I find the said railway is completed and at present supplied with all necessary rolling stock and materials, so as to connect as arranged with the Canada Southern Railway Company Blenheim, Chatham, Dresden and Wallaceburgh, and is, in my opinion, ready for the conveyance of freight and passengers.
I also find that the railway company have substantially complied with the terms and conditions regarding work to be performed, required by the said agreement and by-law, except as to the time, as to which I give no certificate as I am not aware of the time limited.
I further find that the platforms provided for by the said agreement and by-law at the crossing of the Canada Southern Railway, were heretofore completed in accordance with the requirements of the said agreement and by-law, but that afterwards a portion thereof was temporarily removed by the Canada Southern Railway for the purpose of enabling the said company to lay a pipe to a water tank and such portion has not yet been restored.
(Signed)OBT. McCALLUM, C.E.,
Engineer appointed by the Hon. theCommissionerof Public Works for Ontario.
It seems to have been assumed that the bridge for foot passengers adjoining the railway bridge was not within the reference to the engineer. In my opinion it was entirely within his competence just as much as the railway bridge itself, and the other works specified by the by‑law, for I read the words “to the satisfaction of the Commissioner of Public Works or an engineer appointed by him,” as applying (as accord- ing to the grammatical construction it undoubtedly, does) to all that had gone before, and if this is correct it is covered by the certificate which extends to all the work to be performed required by the by-law, but it seems not to have been so considered by the courts below. They, probably for the reason that this foot-bridge was entirely distinct from the railway works and was an independent matter stipulated for by the town for the convenience of the inhabitants, and that the engineer’s concern in inspecting the road for the purpose of ascertaining the company’s right to receive the provincial bonuses would only be with the railway itself and its appurtenant works, considered the foot bridge an extrinsic matter not coming within the engineer’s competence, and therefore dealt with the question of its sufficient completion as one open upon the evidence. The Chief Justice of the Common Pleas had, however, no difficulty in finding that the terms of the by-law and agreement as regards this foot bridge had been sufficiently complied with; indeed he expresses himself in somewhat strong language as to the objections raised by the defendants on this head, for he speaks of them as follows;—
I am also satisfied that the bridge across the Thames was a substantial compliance with the requirements of the by-law in respect thereto. The approaches were sufficient. The contention of the defendants that the foot bridge should have been continued to Gaol street is not, I think, well founded. Water street if the nearest street to the river and the stairway from the bridge to that street was a sufficient approach, though Water street or a portion of it is sometimes under water, in time of freshet it is a travelled and used highway, and is the street by which the bridge would be ordinarily reached. The contention of the defendants based upon objections to this bridge and the platform at the Southern railway crossing does not appear to me to speak favorably of the business intelligence or honesty of purpose of those who put it forward. It would seem to be an attempt on purely technical grounds to defeat the plaintiff’s claim and to deprive them of the aid which the defendants agreed to give them, although by the recital in the agreement it is expressly stated that without such aid the road could not be completed.
In the Court of Appeal the Chief Justice, referring to this point, says:
I think he (the Chief Justice of the Common Pleas) has taken the right view as to the bridge and the four foot way and the company was not bound to connect the bridge on each side with the high ground at some distance from the river.
And the other members of the Court of Appeal seem to acquiesce in this for they say nothing as to it. Even if I had differed very seriously from their findings considered as inferences drawn from the evidence I should not have deemed it proper to interfere with them, for sitting here in a court exercising appellate jurisdiction in the second degree, the authority of the Privy Council in the case of Allen v. The Quebec Warehouse Co.[56] would have seemed to me to preclude the propriety of any such interference on a question of fact on which two courts below had been thus unanimous, in a finding not shown to have been grossly erroneous. But I need not rest the decision on that ground, for the reason assigned by the learned Chief Justice in the passage I have quoted from his judgment entirely commends itself to my judgment, as it will I think to that of every person who considers the evidence. To say that the railway company were bound to carry out the approaches to the bridge to the elevated ground beyond the street traversing the flats immediately adjoining the river would have been to require them to do more than they had covenanted to do, and more than the by-law imposed upon them, for the by-law and agreement only call “for a bridge over the Thames,” and this they have constructed. What the town now insists upon is a bridge not merely over or across the river, but over and across the adjoining flats also. Such an enlargement of the obligation of the railway company by mere implication is wholly inadmissible, and therefore I agree with the courts below on this ground also.
The sufficiency and propriety of the engineer’s certificate has been impugned by the defendants upon the ground of want of impartiality. It is alleged that he did not give the defendants notice of his inspection, and that when he went along the line for the purpose of the examination he was accompanied by the company’s engineer. In the first place, this objection is founded on a misconception of the engineer’s duties; he was not an arbitrator or a referee to report either after hearing parties or witnesses, but simply an expert to make an ocular inspection and report on what he saw and not on what he heard; it was his duty to inspect and examine with his own eyes the whole of the line, no matter who accompanied him, and it is to be presumed he performed this duty properly; moreover, he swears he did so.
It is sufficient then to say of this point that it entirely fails on the evidence and that such was the judgment of both the judge at the trial and the Court of Appeal. The Chief Justice of the latter court speaking of the certificate of the engineer and the defendant’s impeachment of his conduct says,
On the best consideration I can give to the point, I think the certificate of the engineer of the substantial completion of the works set out in the by-law sufficiently showed a performance by the company to satisfy its requirements coupled with the actual running of the road for the week. This latter requirement the learned Chief Justice finds to have been complied with, I do not think the defendants have succeeded in impeaching the certificate of the engineer and that the defence, as to that ground, fails.
Therefore all the conditions of the by-law having been expressly found by both courts to have been complied with and the opinion being general in con-. formity with the view of the Chief Justice of Appeal who says: “The covenants in the agreements appear to me to be independent and not dependent covenants,” I should have thought it ought to have followed, that the judgment of the Common Pleas Division should have been affirmed without qualification or alteration so far as it related to the original action, that is to say, that the first paragraph of that judgment declaring the plaintiff’s absolute right to the immediate delivery of the debentures and ordering accordingly, and also the second paragraph awarding a writ of mandamus (by which, I, of course understand a mandamus by way of private remedy and not the prerogative writ to be intended) should have stood affirmed and the plaintiffs should have been left free to enforce the judgment to that extent, whatever may have been the opinion of the court as to the propriety of the disposition which the judgment made of the counter-claim. This, however, was not the opinion of the Court of Appeal, for, instead of permitting the original judgment to remain intact, as far as it directed an immediate and absolute delivery of the debentures, it varied the judgment as regards the counter-claim, which by the original judgment had been dismissed, by declaring and ordering that the defendants were entitled to relief by way both of damages and specific performance as regards so much of it as related to the Colborne and William street station, but dismissing it as to the other matters of counter-claim, and the court then proceeded to direct that the order for the mandamus should not be enforced until after the report of the master on a reference as to damages should have been made, and any damages found to be due should be paid, unless the plaintiffs should in the meantime give security to pay the damages or allow them to be deducted out of the debentures. The first observation which it occurs to me to make upon this head, is that this variation of the judgment by withholding the debentures until payment of the unliquidated damages, which it was referred to the master to assess, was hardly consistent with the strongly and clearly expressed opinion of the Chief Justice in the passage already quoted from his judgment, that the covenants in the agreement and the provisions in the by-law were entirely independent. If they were so independent, surely to withhold the debentures in this way was to take from the plaintiffs the benefit of such an independence, and to give relief on the footing of dependent covenants, in other words, modifying by the judgment what according to the unanimous judgment of the court was the clear construction and meaning of the contract contained in the two instruments, the by-law and agreement. It was clearly not a case for set oft. There could be nothing of that kind between the two rights of the plaintiffs to the debentures and of the defendant to recover some unliquidated damages in respect of a breach of covenant contained in the agreement of the 3rd November, 1882. I know of no principle either legal or equitable upon which this charging of the prospective damages upon the debentures (for that