Grand Trunk Railway Co. v. City of Toronto

Grand Trunk Railway Co. v. City of Toronto
Collection
Supreme Court Judgments
Date
1910-02-15
Report
(1910) 42 SCR 613
Judges
Girouard, Désiré; Davies, Louis Henry; Idington, John; Duff, Lyman Poore; Anglin, Francis Alexander
On appeal from
Canada
Subjects
Transportation
Decision Content
Supreme Court of Canada
Grand Trunk Railway Co. v. City of Toronto, (1910) 42 S.C.R. 613
Date: 1910-02-15
The Grand Trunk Railway Company of Canada and the Canadian Pacific Railway Company Appellants;
and
The City of Toronto Respondent.
(Toronto Viaduct Case.)
1909: November 29, 30; 1910: February 15.
Present: Girouard, Davies, Idington, Duff and Anglin JJ.
ON APPEAL FROM THE BOARD OF RAILWAY COMMISSIONERS FOR CANADA.
Railways—Jurisdiction of Board of Railway Commissioners—Deviation of tracks—Separation of grades—"Highway"—Dedication— User—Public way or means of communication—Access to harbour—Navigable waters—Construction of statute—"Special Act" -—R.S.C. 1906, c. 37, ss. 2(11) (28), 3, 237, 238, 241; 56 V. c. 4S(D.).
Prior to 1888, the Grand Trunk Railway Company operated a portion of its railway upon the "Esplanade," in the City of Toronto, and, in that year, the Canadian Pacific Railway Company obtained permission from the Dominion Government to fill in a part of Toronto Harbour lying south of the "Esplanade" and to lay and operate tracks thereon, which it did. Several city streets abutted on the north side of the "Esplanade," and the general public passed along the prolongations of these streets, with vehicles and on foot, for the purpose of access to the harbour. In 1892, an agreement was entered into between the city and the two railway companies respecting the removal of the sites of terminal stations, the erection of overhead traffic bridges and the closing or deviation of some of these streets. This agreement was ratified by statutes of the Dominion and provincial legislatures, the Dominion Act (56 Vict. ch. 48), providing that the works mentioned in the agreement should be works for the general advantage of Canada. To remove doubts respecting the right of the Canadian Pacific Railway Company to the use of portions of the bed of the harbour on which they had laid their tracks across the prolongations of the streets mentioned, a grant was made to that company by the Dominion Government of the "use for railway purposes" on and over the filled-in areas included within the lines formed by the production of the sides of the streets. At a later date the Dominion Government granted these areas to the city in trust to be used as public highways, subject to an agreement respecting the railways, known as the "Old Windmill Line Agreement," and excepting therefrom strips of land 66 feet in width between the southerly ends of the areas and the harbour, reserved as and for "an allowance for a public highway." In June, 1909, the Board of Railway Commissioners, on application by the city, made an order directing that the railway companies should elevate their tracks on and adjoining the "Esplanade" and construct a viaduct there. Held, Girouard and Duff, JJ. dissenting, that the Board had jurisdiction to make -such order; that the street prolongations mentioned were highways within the meaning of the "Railway Act"; that the Act of Parliament validating the agreement made in 1892 was not a "special Act" within the meaning of "The Railway Act" and did not alter the character of the agreement as a private contract affecting only the parties thereto, and that the Canadian Pacific Railway Company, having acquired only a limited right or easement in the filled-in land, had not such a title thereto as would deprive the public of the right to pass over the same as a means of communication between the streets and the harbour.
APPEAL from an order of the Board of Railway Commissioners for Canada by leave of the Board on a question of law and on a question of jurisdiction by leave of Mr. Justice Duff.
The material facts on which the order of the Board was based are sufficiently set out in the above head-note. The order, omitting the portion respecting damages and costs was as follows:—
"In the matter of the application of the City of Toronto, hereinafter called the "city," for an order directing the Grand Trunk Railway Company of Canada and the Canadian Pacific Railway Company, hereinafter called the "railway companies," to carry York Street and certain other streets in the said city under the tracks of the said railway companies.
"Upon hearing the evidence, and counsel for the city, the railway companies, the Toronto Board of Trade and a number of land-owners in the said city—
"It is ordered and directed:—
"1. That the railway companies, within two years from the date of this order, construct a four-track viaduct from a point west of John Street to a point at or near Berkeley Street, with three tracks on either side of such viaduct east of Church Street, at the present grade of the Esplanade, with all necessary crossovers and as shewn on a plan filed by the Grand Trunk Railway Company on April 27th, 1909, except where changes as hereinafter set forth are necessary, and except that Bay and Yonge Streets shall each have a total width of eighty feet between abutments under the viaduct, and that from the point of junction of the Canadian Pacific Railway Company and the Grand Trunk elevated tracks at or near Berkeley Street to Scott Street, the centre line of the viaduct shall be located on the southerly boundary of the Esplanade, except at the curve in the tracks in the vicinity of West Market Street.
"2. That the Canadian Pacific Railway Company elevate two tracks from the point at or near Berkeley Street where the said tracks will connect with the tracks on the viaduct referred to in paragraph 1, to Queen Street, providing a clear headway of fourteen feet over the following streets, Parliament, Trinity and Cherry, and a clear headway of ten feet over Vine and Front Streets; and that the railway companies construct a bridge to carry the highway at Eastern Avenue over the railway tracks with a clear headway of twenty-two feet six inches over the base of the rail; the openings at Front and Vine Streets to be each thirty feet between abutments and at Parliament, Trinity and Cherry Streets to be each a width of sixty-six feet between abutments.
"3. That the Grand Trunk Railway Company, within two years from the date of this order, elevate two tracks from the point at or near Berkeley Street where the said tracks will connect with the tracks on the said viaduct, to Logan Avenue, providing a clear headway of fourteen feet over the following streets, Parliament, Cherry, Eastern Avenue and Queen Street, and ten feet over Trinity Street.
"4. That the railway companies, within two years from the date of this order, construct bridges to carry the highways at John Street and Spadina Avenue over the tracks on the said viaduct or the extension of the said tracks westerly, with a clear headway over the base of the rail of twenty-two feet six inches.
"5. That the Canadian Pacific Railway Company be permitted to construct and maintain two tracks at grade, one on either side of its elevated tracks, that on the north side commencing at or near Queen Street and crossing the intervening streets between Queen and Parliament Streets, and that on the south side commencing at or near the Don Esplanade, crossing intervening streets and passing under the Grand Trunk Railway Company's elevated tracks referred to in paragraph 3, between Parliament and Berkeley Streets, with a clear headway of seventeen feet and an opening of the width of seventeen feet, measured at right angles to the track.
"6. That the Grand Trunk Railway Company be permitted to construct and maintain a track, at grade, at or near Berkeley Street, under the tracks of the Canadian Pacific Railway Company, referred to in paragraph 2, with a clear headway over the base of the rail of seventeen feet. The width of the opening under the said tracks to be seventeen feet, measured at right angles to the track.
"7. That concurrently with the completion of the works ordered in paragraphs 1, 2 and 3, and as soon as the railway companies can operate their trains thereon, the railway companies shall alter and arrange their yards and sidings so that no tracks on ground level shall cross Bay Street, Yonge Street or Church Street, in the said city.
"8. That after the completion of the work ordered in paragraphs 1, 2 and 3, and as soon as the railway companies can run their trains thereon, no locomotive or car be moved on tracks at ground level between Church Street and Parliament Street during the months of May, June, July, August and September, except between the hours of 10 p.m. and 6 a.m.; Provided, however, that cars containing fruit or other perishable merchandise may be moved across streets within the said limits at any time when a flagman on foot precedes the train (engine, car or cars) to warn persons on such streets that a train is approaching.
"9. That the city shall, within one year from the date of this order lay out, complete and dedicate a new street south of the viaduct, from the easterly limit of Church Street produced to the westerly limit of Berkeley Street produced, which shall have a width of at least forty-seven and one-half feet, and acquire the lands necessary therefor, and pass all necessary by-laws for that purpose; and shall grade the said street; the share of the cost of such work as between the railway companies to be reserved for further consideration, along with the questions covered by paragraph 14 hereof.
"10. That the said street shall be paved by the city, pursuant to its powers under the Municipal Act, the Canadian Pacific Railway Company to pay one-half the cost of paving."
Armour K.C. and MacMurchy K.C. for the Canadian Pacific Railway Co.
Blackstock K.C. for the Grand Trunk Railway Co.
Dewart K.C. and Chisholm K.C. for the City of Toronto.
Girouard J. (dissenting).—We have been treated to an interesting though rather long history of certain lands and water lots in front of the city of Toronto, for many years known as the Esplanade, going as far back as old Muddy York in 1818. As I understand the case, I do not think it is at all necessary, for the purposes of this appeal, to go so far back. It cannot be denied that from 1855 and after, the Grand Trunk Railway Company had been authorized to use, and did in fact use, certain parts of the Esplanade for the purposes of their railway, and that likewise in 1888 the Canadian Pacific Railway Co., in right of the Quebec and Ontario Railway Co., held water-lots to the south of the Esplanade which they filled in, and where they put their tracks, yards and sheds and have used them ever since, subject to certain subsequent alterations. The location and operation of these railways were made not only with the consent of the corporation of the City of Toronto, but also with the express approbation of the competent legislatures. If the present Railway Commission had not been created with most extensive, and even legislative powers, I would feel inclined to apply the rule held by the Privy Council in the case of the Attorney-General for British Columbia v. Canadian Pacific Railway Co.[1], but I believe that now that decision cannot have any application.
Here the applicant is not the Attorney-General claiming a jus publicum over certain railways, but the Railway Commission first ex proprio motu, and later on, on the special application of the City of Toronto, has taken cognizance of the situation and has ordered certain works to be done for the "protection, safety and convenience of the public," crossing over certain railways. Extraordinary powers, far exceeding any existing in the Railway Acts of any other country, are given to the Railway Board, and it might be possible that the Board had jurisdiction to issue the order given to build a viaduct and other works specified in the Order No. 7,200, dated 9th June, 1909, unless prohibited by some statute from so doing.
The reasons advanced by the Commissioners for giving this order may be unreasonable, and the work to be done even absurd; this court has nothing to do with any such possibilities, and unless it can be shewn that the Board has no jurisdiction or acted contrary to the Railway Act, this court cannot interfere, for the Board can do almost anything in relation to railways, except when prohibited by Parliament. As we held in a recent case, In re Canadian Northern Railway Co.[2], the Board cannot change the "Railway Act" of the Parliament of Canada; and I have arrived at the conclusion that, in this instance, they have violated that Act, because the subject matter of the order given by them has already been provided for by the parties and the legislatures interested, not exactly in the same manner and by the same kind of works, that is a viaduct, but by other works which had been found satisfactory to all intents and purposes and must stand until otherwise ordered by Parliament.
There is no doubt that the two railway companies all along, from the very first day they obtained possession of their lands in front of the City of Toronto for the purposes of their railways, knew that the cross streets abutting on the Esplanade might one day be prolonged to the water's edge, so as to afford public access to the front lots and to the bay or lake, in a convenient and safe manner, due regard being given to the growth of a progressive commercial city. All the plans and documents produced shew the possible prolongation of these cross streets. The two railway companies soon realized the situation and finally came to an arrangement with the City of Toronto to secure this end. On the 26th July, 1892, they came to an agreement called the Esplanade or Tripartite Agreement, which was confirmed by the Ontario Legislature, 55 Vict. ch. 90, and also by the Parliament of Canada, 56 Vict. ch. 48. Expensive works were executed, for instance overhead traffic bridges with approaches for vehicles and foot passengers, the closing of certain streets, the deviation of others, the acquisition, abandonment and exchange of lands, the raising and removal of tracks, including the erection of a vast Union Station, etc. The construction of these heavy works involved the expenditure of large sums of money amounting to several millions, the Union Station alone having cost the railways $1,370,000, and was approved of by the Parliament of Canada by Vict. ch. 48. It must be observed with reference to the opinion of the learned chairman of the Board that this agreement entirely excluded forever the proposition of a viaduct. I find in his opinion a fair recapitulation of these works, comprehensive enough to give some idea of their magnitude. He says:—
On July 26th, 1892, the city, the Grand Trunk Railway Company and the Canadian Pacific Railway Company, the latter representing also the Toronto, Grey and Bruce Railway Company, the Ontario and Quebec Railway Company and all its other leased lines, entered into what is called the "Esplanade Tri-partite Agreement" in which appear most elaborate provisions relating to the rights of the railway companies upon the Esplanade and for the construction of the Union Station. I deal with only a few of its provisions: Par. 4 provided for the erection of private overhead bridges, (5) The city agreed to prevent the public crossing the tracks on the Esplanade between Yonge and York Streets, except at Bay Street, and the Grand Trunk Railway Co. waived its contention that it was not liable to contribute to the cost of making or protecting level crossings at Church, Yonge and Bay Streets. (7) Provided for the construction of the York Street bridge and declared it to be a public highway. (9) Provided for deviating York Street, closing a portion of it and the Esplanade. (10) The Grand Trunk agreed to construct the John Street bridge. (11) Provision was made for closing Esplanade from York Street to Brock Street and portions of Simcoe, Peter, and John Streets. (15) The railway companies agreed to pay $15,000.00 to the city for conveyance of the portions of streets agreed to be closed. (17) The city consented to the Grand Trunk Railway Co. obtaining a patent from the Crown of the prolongation of Peter Street and the companies consented to the city obtaining a patent of the prolongation of Simcoe and York Streets, all to the Old Windmill Line.
It is alleged that the Dominion statute, 56 Vict. ch. 48, merely recognized the capacity of the parties to enter into such an agreement. The Dominion statute could not give capacity to the City of Toronto. This was done by the Ontario statute. The Dominion statute was necessary to make the scheme agreed to permanent and final until otherwise provided for by Parliament.
Section 1 enacts that
all works done or to be done in order to give effect to the agreement hereinafter mentioned, as well as those affected by it, are hereby declared to be works for the general advantage of Canada.
They cannot, therefore, be considered as private works of railway companies. They are to all intents and purposes federal works remaining under the exclusive jurisdiction of the Dominion Parliament, under section 92, par. 10, of the British North America Act.
Some authorities have been quoted by the Railway Board to the effect that although an agreement between the parties be ratified by an Act of the Legislature, it still remains a private contract. See City of Kingston v. Kingston, Portsmouth and Cataraqui Electric Railway Co.[3], at page 468. But this Ontario case is not a parallel one, for it was a mere ratification of an agreement without any such clause as is found in section 1 of 56 Vict. ch. 48, and therefore has no application.
Some reference has also been made by counsel to a decision of the Ontario High Court, confirmed by the Court of Appeal, with respect to the Yonge Street bridge. This decision may affect some other branches of the case, which I do not intend to deal with, but has no bearing upon the point under consideration. It is not even mentioned in their judgments[4]. It is only fair to add that the Railway Board does not refer to this decision.
The Railway Commission now proposes to destroy all those works and provide a new scheme still more elaborated and "enormously expensive," observes the chairman, even before ascertaining the financial aspect of the enterprise, for the purpose of giving protection, safety and convenience to the public; involving also the erection of a new Union Station. Can they do so, or is it necessary to apply to the Parliament of Canada? That is the whole question. Section 3 of the Railway Act says in express terms that:
Where the provisions of this Act or of any special Act passed by the Parliament of Canada, relate to the same subject matter, the provisions of the special Act shall, in so far as is necessary to give effect to such special Act, be taken to override the provisions of this Act.
Then section 2, par. 28, says:
"Special Act" means any Act under which the company has authority to construct or operate a railway, or which is enacted with special reference to such railway.
The Railway Board considers "that the fair meaning of the words with special reference to such railway is with respect to the construction or operation of the railway"; but this is not what the statute says. The interpretation given by the Board has reference only to one part of sub-section 28, and says nothing of the enactment "with special reference to such railway." I cannot understand, moreover, how there can be any doubt that 56 Vict. ch. 48 is an Act having special reference to the railways on the Esplanade. But even if we were to take the interpretation given by the Board, it seems to me that all the works executed under the Tripartite Agreement are works dealing with the construction and operation of the railway. I finally submit that the Railway Board has no jurisdiction over the subject matter, which has been fully dealt with and settled by that Special Act of the Parliament of Canada, and that the Dominion Parliament can alone deal with it again. The Railway Board seem to be conscious of the difficulty they are labouring under, for the chairman remarks in his opinion that "both the agreement and the clauses of the General Act deal with public protection, safety and convenience," and therefore with the same subject matter.
It is finally contended that on the 19th of May, 1909, and before the order in council in question in this case was settled, the above legislation was swept away by section 8 of 8 & 9 Edw. VII. ch. 32. The decision upon the point in dispute was pronounced long before it was passed, although the formal order was not settled until after. I cannot see how this amendment to the Railway Act can have that effect. I do not see how it can have any application, as that amendment is not a mere matter of procedure, but a matter of jurisdiction affecting vested rights. It would be iniquitous to apply such a statute to a case like the present one without an express enactment to that effect. Williams v. Irvine[5]. See also decisions quoted in Am. & Eng, Encycl. of Law, vo. "Statutes," page 693, notes (2 ed.).
I would, therefore, allow the appeal of the Canadian Pacific Railway Company and the Grand Trunk Railway Company of Canada, with costs against the City of Toronto.
Davies, J.—This is an appeal upon questions of jurisdiction and law from an order of the Board of Railway Commissioners directing the elevation of certain railway tracks of the Grand Trunk Railway and the Canadian Pacific Railway, in the City of Toronto.
The proceedings began by an application on the part of the two railway companies for the Board's approval of plans for a new Union Station at Toronto, which involved necessarily what the elevation of the station should be as well as those of the railway tracks that entered it.
The Board during the hearing of the application and thinking the occasion opportune to consider the elevation of these tracks for the protection, safety and convenience of the public directed the city to make the necessary application and the city did so.
The jurisdiction of the Board to make the order it did is challenged upon two grounds; one that there was no highway within the meaning of the 238th section of the Railway Act, upon or along or across which the Canadian Pacific Railway was constructed which was admittedly necessary to give jurisdiction; the other that the matter in dispute and disposed of by the order related to the same subject matter as that dealt with by a special Act of Parliament, and by section 3 of the Railway Act, R.S.C. 1906, in such case
the provisions of the special Act shall in so far as it is necessary to give effect to such special Act, be taken to override the provisions of this Act.
As stated by the Chief Commissioner in his opinion when granting the order in question:
The one broad question for determination is whether this separation of grade shall be accomplished by the city streets being carried over the lines of railway tracks or whether the latter should be carried over the streets. The special Act invoked as ousting the jurisdiction of the Board was one passed in 1893, declaring (1) all works to be done or in pursuance of the agreement therein mentioned to be works for the general advantage of Canada; (2) an agreement dated 26th May, 1892, made between the Grand Trunk Railway Company, the Canadian Pacific Railway Company and the City of Toronto "to be in force and binding upon the parties thereto"; and (3) that each of the parties might do what was necessary to carry out its undertaking under that agreement.
The Act did not profess to embody the agreement or to make it part of the statute. Its first provision was necessary as the Union Station provided for was for the use and benefit of two Dominion railways, and as there might be doubts whether the railways or the city had the power to bind themselves in the several respects they did the agreement was declared to be binding upon the parties to it each of whom was authorized to carry out its undertaking as specified in the agreement.
Substantially the agreement provided for the erection of a new Union Station in the City of Toronto for the necessary opening, deviation and closing of certain specified streets, consequent upon its erection, for the construction of York Street bridge, and for the prevention of the public crossing over the tracks of the railways on the Esplanade between Yonge and York Streets. Incidentally no doubt these provisions had in view and did not ignore the public safety, but their object and purpose was to enable the Union Station to be erected and provide for access to it by the railway tracks and the public.
By no reasonable construction of language can this Act be called a special Act dealing with the "safety, protection and convenience of the public" as those words are used in the amended section 238 of the Railway Act.
The agreement sanctioned by Parliament was a private agreement made between the railways and the city in which no doubt some public interests were considered, but which mainly concerned the interests of the respective parties. Like many other agreements it may have to be interfered with or perhaps overridden either in whole or in part by the Board while exercising their important functions and duties, and as in the case before us where they find it necessary to order anything to be done for the public safety or protection to the prejudice or damage of a corporation or company they take care to consider that fact in awarding the proportion of cost which such interested party must bear in the works ordered.
I have not any doubt that this Act is not such a one as could oust the jurisdiction of the Commissioners under section 238 of the Railway Act.
The main contention, however, of the Canadian Pacific Railway Co. was that there was no "highway" upon, along or across which its line of track was constructed which alone could give the Board jurisdiction.
On this question we had prolonged arguments in which the historical aspects of the case as well as the legal ones were thoroughly examined.
I do not think it necessary to go back further than the date when and the authority under which the "Don Branch" was constructed.
That branch railway adjoins on the south the Esplanade along the southern portion of which the tracks of the Grand Trunk Railway are laid. By common consent that Esplanade is a highway and all the streets leading to it from the city are highways, and at the time the Don branch was authorized to be constructed the waters of the harbour washed against the southern side of the Esplanade.
No one disputes the right of the public to reach thé waters of the lake or harbour along these streets and across this Esplanade, and no question of jurisdiction could be raised by the Grand Trunk Railway Co. if the proposed work related to its road alone.
The judgment of the Judicial Committee in the case of Attorney-General of British Columbia v. Canadian Pacific Railway Co.[6], was invoked in support of the proposition that the construction of the Don branch of the Ontario and Quebec Railway, by the Canadian Pacific Railway Co. as the lessee of that railway effectually and legally obstructed and put an end to any rights of passage previously and at the time existing across the lands or waters on and over which such branch was built.
For my part I am quite unable to see how the decision in that case applies to the one we have now before us. In the British Columbia case above cited the Judicial Committee held that the special Act authorizing the construction of the Canadian Pacific Railway authorized the taking by the railway company of all Crown lands provincial as well as Dominion necessary for the undertaking; that a proper construction of sections 91 and 92 of the British North America Act authorized the Dominion Parliament to dispose of provincial Crown lands for the purposes of this Interprovincial railway; that the Dominion Government had issued a Crown grant to the Canadian Pacific Railway Co. under section 18(a) of their incorporating Act including all the foreshore in question at the street ends; that apart from this the foreshore in question being found as a fact to be a part of the harbour of Vancouver was clearly subject to Dominion legislation; that section 18 of the Canadian Pacific Railway Act gave the necessary authority to the company to take the foreshore there in dispute for the purposes of the railway; that the company had properly exercised the powers so given to them and appropriated the foreshore; and that such appropriation of necessity included the right to obstruct any rights of passage previously existing across that foreshore.
In the case before us there is no exercise of any power or right arising under the Canadian Pacific Railway Act, nor is there any analogous or similar Dominion legislation to that authorizing the construction of this "Don branch." No grant has been made to the Ontario and Quebec Railway Co. or to the Canadian Pacific Railway Co., its lessee, of any part of the lands ; the sole right or authority which the company has or had to construct its line in the place it has constructed it along and adjoining the south side of the Esplanade and in front of the streets leading from the city to the harbour is to be found in (1) the order in council of the 25th January, 1887; (2) 51 Vict. ch. 53, confirming the said order in council; (3) the order in council 23rd March, 1893, for a grant to the Canadian Pacific Railway Company of an easement "for railway purposes over the extensions of the streets from Berkeley to Bay streets"; and (4) the grant to the company following and in pursuance of that order in council.
The question is: Did these orders in council, this statute and this grant give or convey to the Ontario and Quebec Railway Co. or to its lessee, the Canadian Pacific Railway Co., anything more than a bare easement or right to construct its branch line on the location specified and defined in the orders in council and the grant and subject to the limitations expressed in those documents and without prejudice to the public rights of communication with the waters of the harbour?
The contention of the appellants is that they got a title to the exclusive occupation of the spaces which formed the prolongations of the several streets and had a good title thereto in fee simple or if not that at least an exclusive license of occupation under which they had spent large sums of money and which could neither be derogated from nor revoked by the Crown.
I am quite unable to accept this contention. The first order in council of January, 1887, did nothing more and professed to do nothing more than sanction the building of a branch line of the Ontario and Quebec Railway, called the "Don branch," under six miles in length, pursuant to the provisions of the 18th subsection of sec. 7 of the Consolidated Railway Act, 1879; and approve of the maps and plans submitted shewing the location of the line, and fixing the time for construction as the 30th November, 1887.
In May following, 1888, the statute 51 Vict. ch. 53, was passed which amongst other enactments declared that the Ontario and Quebec Railway Company
might at any time within three years from the passing of the Act construct and complete the branch of its line referred to in the said order in council of 25th January, 1887.
This Act gave no new nor further power or authority for the construction of the branch than that given by the order in council. It merely extended the time within which the work had to be completed.
Sub-section 7 of the General Railway Act of 1879, under which the governor in council alone had power to sanction the building of the branch line, prescribes the conditions which must exist before the sanction sought for is given, and amongst them is the deposit in the County Registry office of the maps and plans indicating the location of the line, which plans the governor in council must approve of before the company could exercise its powers of expropriation.
Turning to plan No. 7, which was filed in the Registry office and submitted to and approved of by the governor in council in 'the above order which plan is signed by the president of the Canadian Pacific Railway Co., by the Deputy-Minister of Railways and Canals and certified by the Registrar as having been deposited in the Registry Office it appears that the several streets from Berkeley Street to York Street, twelve or thirteen in number, are clearly and distinctly shewn as prolongations of the streets opening on and upon Esplanade Street out into the harbour as far as the Windmill Line.
The proposed line, sanction for the building of which was thus sought, necessarily crossed each of these streets or prolongations of streets which at that time of course were south of the Esplanade covered with water. All that appeared in the map or plan therefore which the governor in council was asked to approve was certain streets, sanction for the crossing of which was sought and obtained.
It would be a singular construction to place upon such a sanction that it operated to shut up and close the street, and enabled the railway company after expropriating the lands of the private owners and building its roadbed, absolutely to shut out the public from access to the harbour from the city and vice versà.
In my judgment this order in council and statutory extension of time with the implied confirmation contended for gave the company no power whatever to enter and construct their railway on these Crown lands which formed part of the harbour and were designated as streets on the plan.
It merely gave the sanction required by the then general Railway Act to the construction of the branch and so enabled the company to take steps to purchase or expropriate the lands necessary for the purpose or so far as they were Crown lands to obtain a right to cross them on such terms as the Crown chose to impose, or a deed or conveyance of the lands if the Crown chose to give it.
Without however taking any such steps as far as these intervening spaces called streets on the plan were concerned, and without any other authority than the order in council and the statute referred to, the company entered and built their road and operated it till 1893, when the discovery of their utter want of title was made.
Now what are the facts proved with respect to these intervening spaces in the harbour called streets as they abutted on the Esplanade at the time before and when the Don branch was built. Evidence was given and not contradicted that so far as eight or nine of them were concerned the city had constructed, wooden slips, as they were called, at their junction with the Esplanade, which slips had been used by the public for years with horses and carts or wagons as ways or communications with the harbour for the purpose of getting lake water and selling the same to the citizens of Toronto. The watermen drove their horses and carts across the Esplanade and down these slips, procured the water they required and crossed back again. The public in other ways used these slips or wooden ways built upon stone and secured by piles driven in the bed of the lake for the ordinary purposes of leaving the city to go upon the lake or getting to the city from the lake.
There is not a scintilla of evidence that such right of way or passage was ever called in question by anyone.
The introduction into the city of water by means of pipes of course put an end to the necessity for continuing this manner of using these ways to obtain water, so that when the Canadian Pacific Railway Co. built in 1888 the Don branch abutting upon the Esplanade and running across these prolongations of streets while the foundations and remains of the slips were there and were covered up by the railway filling the special user of them as a means of procuring water had ceased.
So far as the crossing at the foot of Yonge Street is concerned the question whether it had been prolonged beyond the Esplanade and constituted a public way or crossing was tried some years ago before the High Court of Ontario at great length with the result that the Court found in favour of the public right and the finding of Mr. Justice Anglin, the trial judge, supported by elaborate and convincing reasoning was on appeal confirmed by the unanimous judgment of the Court of Appeal.
The leading opinion of that court delivered by Chief Justice Moss leaves no doubt upon my mind that the evidence in that case fully justified the findings. There is no doubt that no such ample evidence was or could be procured with respect to the user of the ways or communications from the other streets to the harbour. Such a public and continuous user as was shewn always to have existed at Yonge Street after the Esplanade was constructed, did not, of course, exist at the ends of the other streets, but as I have stated evidence of some user though perhaps slight was given.
Pausing for a moment at this point in the chronological statement of the facts let us see what was the legal situation in the year 1888 when the Don branch was built.
The public right of access to and from the streets to and from the waters of the harbour had not been denied or prevented.
The Canadian Pacific Railway Co. simply filled up the harbour, level with the Esplanade, opposite to the ends of the streets and filled in with planks between the rails of their railway, thus giving the public the same right of access as they previously had and practically and de facto if not de jure extending the highways or streets and Esplanade to the extent of the width of their embankment on the prolongation.
That condition continued until the year 1893 without any attempt being made to exclude the public from the user of the Don branch as a street or highway in so far as it was prolonged into the harbour opposite to the streets leading to and on the Esplanade from the city.
Discovery had then been made that the branch had been constructed across the Crown property in these prolongations of streets without authority. Application was made, by the Canadian Pacific Railway officials, to obtain that authority and the order in council of March, 1893, was, on report from the Minister of Railways, granted.
This order in council sets out the existence of the application by the Canadian Pacific Railway Co. to have been for a
grant of the right to construct, maintain and use for railway purposes two or more railway tracks and appurtenances and the roadbeds therefor on and over eleven parcels of land, etc.
Then follow the descriptions of these parcels severally as the prolongations of the respective streets leading to and across the Esplanade.
The order in council recites the representations of the company on which they sought to have the order granted to have been that these lands were "held by the Government in the interests of Canada” and
under the impression that the order in council of 25th January, 1887, and the Don Act, 51 Vict. ch. 53, gave the company the right to do so, it some time ago constructed tracks over the said lands and had been using them for railway purposes but, having been advised that this right was not complete unless the approval given by the order in council be followed by a formal grant, it now prayed that its right to use the said tracks be confirmed by such a grant.
The order in council further recited that
the company further points out that the giving of this easement will not interfere with the Crown granting to the City of Toronto or to any other party a full title to the said parcels of land subject only to the use for railway purposes above mentioned.
The order in council therefore recommended
that there be granted to the Canadian Pacific Railway Co., its succes