Southern Canada Power Co. Ltd. v. The King

Southern Canada Power Co. Ltd. v. The King
Collection
Supreme Court Judgments
Date
1936-01-15
Report
[1936] SCR 4
Judges
Lamont, John Henderson; Cannon, Lawrence Arthur Dumoulin; Crocket, Oswald Smith; Davis, Henry Hague; Dysart
On appeal from
Canada
Subjects
State
Decision Content
Supreme Court of Canada
Southern Canada Power Co. Ltd. v. The King, [1936] S.C.R. 4
Date: 1936-01-15
The Southern Canada Power Company Ltd. (Defendant) Appellant;
and
His Majesty The King (Plaintiff) Respondent.
1935: April 24, 25, 26, 29, 30, 1936: January 15.
Present: Lamont, Cannon, Crocket and Davis JJ. and Dysart J. ad hoc.
ON APPEAL FROM THE EXCHEQUER COURT OF CANADA
Crown—Canadian National Railways—Railway embankment—Washed out by overflow of water and ice during spring—Construction of dam upstream—Interference of natural course of river—Derailment of train—Damages—Servitude—Riparian owner—Liability of owner of dam—Ruling as to various species of damages caused to the railway company—Water-Course Act, R.S.Q., 1925, c. 46, s. 12—Arts. 499, 500, 501, 503, 508 C.C.
The Crown, as owner of the Canadian National Railways Company, brought an action against the appellant company for the recovery of a sum of $81,523.20 for damages caused through the derailment of a train in consequence of a sudden washout of the railway embankment between the viaduct over the highway and the railway bridge crossing the St. Francis river, near Drummondville, P.Q. The Crown alleged that the loss and damage were the consequence of the construction, in 1928, of a large power house and dam, across the river about two and a half miles upstream from the embankment, which were owned, maintained and operated by the appellant company. The Exchequer Court of Canada maintained the respondent’s action for the full amount claimed, less a sum of $600.
Held that the appellant company was liable, as the existence of the appellant’s dam led directly to the washing out of the railway embankment, but that the amount of the damages awarded by the trial judge should be reduced to $31,418.03.
Held, per Cannon and Crocket JJ. and Dysart J. ad hoc, that, under the laws of Quebec, the appellant company could be held liable only for the damages caused by the injury to the enjoyment of the rights of the railway company as riparian owner; and thus it would not include the locomotive and rolling stock which happened to reach the site of the embankment after the washout. The statutory liability cannot be extended beyond what the law has fixed as the price of the servitude on riparian owners, i.e., the damage caused to the riparian owner, as such, of any property by the damming of the waters. Under the circumstances the failure of the railway employees to safeguard the train was a failure in an obvious duty and relieves the appellant from responsibility for all damages resulting directly or indirectly from the destruction of the dam. Consequently, the respondent was entitled to recover only the costs of repairs to tracks, $5,254.57, the costs of repairs to structure, $13,004.47, and the costs of diversion of train service and of special train service, $13,158.99, making a total sum of $31,418.03.
Per Lamont and Davis JJ.—In addition to the above-mentioned damages, a further sum of $30,235.78 should be awarded to the respondent for costs of repairs to the locomotive and the cars. The liability for damages resulting from the construction and maintenance of the works of the appellant was not confined to such damages as might reasonably have been anticipated by the appellant; when it is found that a man ought to have foreseen in a general way consequences of a certain kind it will not affect him to say that he could not foresee the precise course or the full extent of the consequence which in fact happened. If liability is once established by proof of the relation of cause and effect, then those damages that flow directly are recoverable. The appellant had lawful governmental authority to construct and maintain its works in and across the St. Francis river, but it took that authority subject to the obligation created by section 12 of the Water-Course Act, R.S.Q. 1925, c. 46, of becoming “liable for all damages resulting therefrom to any person, whether by excessive elevation of the flood-gates or otherwise.” While the appellant was put by the statute into the position of being able lawfully to construct, maintain and operate its works, it was under the condition subsequent that it should, notwithstanding that there was no injuria, pay, under a liability imposed by the statute, for the damnum which should from time to time prove to have been occasioned to any person therefrom; and the language of the statute embraces damages, whether they occur above or below the obstruction in the river, that result from any of such works.
Held that the respondent was not entitled to recover the sum of $19,592.35 for medical and hospital services to employees and passengers who were victims of the accident, for funeral and ambulance expenses, for indemnities to passengers and employees and for wages paid to disabled employees.
Judgment of the Exchequer Court of Canada ([1934] Ex.C.R. 142) varied.
APPEAL from the judgment of the Exchequer Court of Canada[1], maintaining the respondent’s action.
The material facts of the case and the questions at issue are stated in the above head-note and in the judgments now reported.
J. L. Ralston K.C., Alphonse Décary K.C. and Joseph Marier K.C. for the appellant.
L. E. Beaulieu K.C. and J. P. Pratt K.C. for the respondent.
The judgment of Lamont and Davis JJ. was delivered by
Davis J.—On Easter Sunday, April 8, 1928, at about four o’clock in the afternoon, a passenger train of the Canadian National Railways bound for the city of Montreal from the city of Quebec was derailed near the town of Drummondville in the province of Quebec in consequence of the sudden washout of the railway embankment on the east side of the St. Francis river. The locomotive and the baggage car were thrown into the bed of the river and the second-class passenger coach fell upon the baggage car though its rear truck remained on the rails. The railway embankment was a little over 90 feet in length and about 20 feet in height. Railway men speak of this embankment as part of the bridge, but it was in fact a gravel embankment in use to carry the railway tracks to the level of the bridge proper that crossed the river. This embankment was suddenly washed out shortly before the arrival of the train at that point by a tremendous overflow of water and ice which had come down the St. Francis river. The tracks that had lain upon the embankment were left hanging over the gap caused by the washout of the embankment and the trainmen being unaware of this condition until a moment or so before reaching the place of the embankment, the calamity occurred. A woman residing in the vicinity who had been watching the movement of the water and ice in the river heard the whistle of the locomotive and realizing the danger ran along the tracks towards the approaching train and signalled the engineer to stop. The engineer immediately applied the emergency brakes and reduced the speed of his train as best he could but the distance was too short within which to bring his train to a stop and the locomotive and cars plunged into the bed of the river. The engineer was so seriously burnt in the cab of his engine that he died within the week as a direct result of the accident; two men in the baggage car were drowned; several passengers were more or less seriously injured; and the cars and the trackage were badly damaged.
The construction of the embankment dated back to 1887. It had been built in that year by the Drummond County Railway Company and when in 1899 the Government of Canada bought the railway and undertaking of the Drummond County Railway Company, the embankment became and remained the property of His Majesty and had been in continuous use since 1887 in connection with the railway line across the St. Francis river bridge. The embankment had been inspected regularly by the railway men and had been kept in what appears to have been a reasonably good state of repair. The railway at this point is part of what is known as the Canadian National Railway System owned by the Dominion Government and the loss and damage were attributed by those in charge of the operation of the railway to the existence of a large power house and dam constructed in 1925 across the St. Francis river about two and a half miles upstream from the embankment and owned, maintained and operated by the appellant, The Southern Canada Power Company, Limited.
His Majesty on information of the Attorney-General of Canada commenced proceedings in the Exchequer Court of Canada against the appellant to recover the loss and damages sustained by the railway. The total claim amounted to $81,523.20. His Majesty recovered judgment in the Exchequer Court of Canada for the full of the amount of the claims less only the sum of $600 being the amount of a gratuity made to the woman who had signalled the train to stop. The different items of damage in the claim may be conveniently divided for consideration into three general classes. Firstly, there is the damage involved in the destruction of the embankment and the damage to the tracks amounting in all to $18,259.04. Secondly, the cost of repairs to the locomotive and the cars and the cost of auxiliary and wrecking train service, and of the diversion of the train service. These items total $43,671.81. Thirdly, there is a class of items made up of disbursements for medical and hospital services, funeral and ambulance expenses, indemnities to passengers and employees, wages paid to the disabled conductor of the train and the $600 gratuity above referred to. These items in this class total $19,592.35. The appellant appeals to this Court from the judgment rendered against it in the Exchequer Court of Canada.
The quantum of damages in respect of each of the items in the claim is admitted but liability is denied in respect of the entire claim.
A preliminary objection was raised by the appellant at the trial and renewed before us that the Crown had no right to take these proceedings in the Exchequer Court of Canada, the contention being that the right of action was by statute vested in the Canadian National Railways Company and that that company could only sue in the ordinary courts and not in the Exchequer Court of Canada. The learned trial judge carefully reviewed the statutory law upon the subject and concluded, I think rightly, that the Crown was the owner of the railway and had never given up its right to sue for any claim it had in connection with the operation of the railway. The particular section of the railway in which the accident occurred has an interesting history as part of the old Intercolonial Railway, it having become the duty of the Government of Canada by virtue of sec. 145 of the British North America Act to provide for the commencement within six months after the Union of a railway connecting the river St. Lawrence with the city of Halifax in Nova Scotia, and for the construction of such railway without intermission and its completion with all practicable speed. It was in the fulfillment of that duty imposed upon the Government of Canada by the Act of Confederation that the undertaking of the Drumond County Railway Company was acquired in 1899, and thereafter formed part of the Intercolonial Railway. It became and has continued to be the property of His Majesty in right of the Dominion of Canada. The ownership has never been conveyed to the Canadian National Railways Company, but to that company the management and operation of the railway have been entrusted by statute. While a right of action was given to the railway company by sec. 33 of the Canadian National Railway Act, R.S.C. 1927, ch. 172, and this action might have been taken in the name of the Canadian National Railways Company, His Majesty in right of the Dominion of Canada did not relinquish his right as owner to sue. That being so, there is no ground for the further objection that the action should not have been brought in the Exchequer Court of Canada. The learned trial judge has carefully and correctly reviewed and stated the pertinent statutory provisions and the authorities, and it is unnecessary to repeat them.
The real question is that of liability, and apart from considering the items in the three classes of claims in the light of the law applicable to each of these classifications taken separately, the general question of liability is very largely one of fact. The learned trial judge has very carefully reviewed the evidence in great detail and at considerable length and counsel before us readily conceded that the recital of facts was substantially accurate in all respects. It is unnecessary therefore to repeat them here except in so far as may be necessary to indicate in a general way the problem that confronts us in the consideration of this appeal.
Nothing further need be said for the moment as to the construction and state of repair of the railway embankment but some general remarks at the outset as to the construction and maintenance of the dam and power house of the appellant may be appropriate. There were in fact two dams of the appellant. One, with which we are only incidentally concerned, was situate about 1,100 feet upstream from the railway bridge. Its history goes back to 1896, when the town of Drummondville built a wooden dam at substantially the same point. In 1918 the appellant acquired the power plant of the town of Drummondville, including this old wooden dam, and erected a new dam a few inches higher than the old one and at a location approximately 50 feet below the old dam which was demolished. This dam of course constituted an obstruction in the river and no doubt had some effect upon the ordinary flow of the river in its natural state but standing alone would not, I think, have been charged with the cause of the accident. In 1925 the appellant built a large power plant and dam across the St. Francis river about two and a half miles upstream from the railway bridge at what was known as Hemmings falls. The appellant is a company incorporated under the Dominion Companies Act in 1913 with its chief place of business in the province of Quebec. Carrying on its operations in that province it became subject to the laws of that province and particularly to the Water-Course Act, R.S.Q. 1925, ch. 46, to which I shall later refer. The St. Francis river being a navigable river, it was necessary under federal legislation that the plans of the works to be undertaken in the river by the appellant should be submitted to and approved by the Minister of Public Works of Canada. While there is neither proof nor admission that such approval was obtained, it has been assumed throughout that there was such authority and no point has been made of any lack of governmental authority in connection with the construction and maintenance of the power house and the dams. The question of liability for damages that might result from the construction or maintenance of the works need not be discussed until we have a clear understanding of the facts. It is sufficient for the moment to state that under sec. 12 of the Water-Course Act,
the owner or lessee of any such work shall be liable for all damages resulting therefrom to any person, whether by excessive elevation of the flood-gates or otherwise.
The real question, apart from any consideration of the statute, is a question of fact as to whether or not the damages claimed in the action resulted from the presence in the river of the works of the appellant.
Reverting then to the large dam at Hemmings falls, the construction of that dam raised the level of the water upstream 9·2 feet and created a basin about five and a half miles in length where previously there had been one not exceeding three and a half miles. The natural width of the river within the five and a half miles of basin was inevitably widened and at some point very considerably. At one point the width became almost doubled and reached a distance of over half a mile. The dam itself was some fifty-four feet in height of solid concrete wall. This dam with the large power house stretches across the entire width of the river. There are, of course, sluice-gates and a spillway and on top of the spillway are placed removable flash boards seven feet high to further raise the level of the water when necessary. Farther upstream from Hemmings falls, a distance of about five and a half miles, was what was known as the Dauphinais rapids. The water level from the foot of the Dauphinais rapids downstream for a distance of about three and a half miles, before the construction by the appellant of the dam at Hemmings falls, gradually fell about one foot. Then from that point to a point approximately five hundred feet below the point where the dam now stands there was a drop in the level of nearly forty-five feet which was what was called the Hemmings falls. As a consequence of the erection of the dam the Hemmings falls rapids were entirely wiped out and about two-thirds of the Dauphinais rapids were wiped out, and the level of the river between the head of Hemmings falls rapids and the foot of the Dauphinais rapids was raised 9·2 feet.
The basis of the claim against the appellant is that the tremendous rush of water and ice that so suddenly washed out the railway embankment on the day in question was the direct result of the interference of the appellant with the natural condition of the St. Francis river by the obstructions caused by the erection and maintenance by the appellant of its two dams, the one built in 1918 about 1,100 feet upstream from the railway bridge, and, principally, the other dam, constructed in 1925 at Hemmings falls. Did the damage result from these works of the appellant? That is the real problem in this case. And it is almost entirely, if not entirely, a question of fact. The substantial defences to the action were: (1) That the events which took place on the occasion of the ice break of 1928 were brought about by causes of nature that were entirely abnormal and to which the existence of the dam had no reference. Great formations of ice, unusually heavy rainfall, sudden rise of temperature, were said to have united in creating such a combination of abnormal natural conditions as to cause the accident without reference to the existence of the dams. (2) That if the dam had in fact any influence upon the situation, it acted as a regulator and moderator controlling to some extent the spring floods and distributing their effect so as to reduce what would otherwise have been a worse condition. (3) That the railway had itself been negligent in continuing to use the old gravel embankment, having regard to the history of the conditions on the river which had occurred periodically during some years past, and which called for precautionary measures on the part of the railway company in the construction of a substantial structure to carry the tracks between the viaduct over an adjacent highway and the bridge in question. (4) That having regard to the known condition of the river during two or three days before the accident, the railway company should have taken heed of the probability of the embankment being washed out and have watched the place of the embankment to guard against any train passing over until satisfied that it was safe to do so. I purposely refrain for the moment from discussing other questions of defence that go to liability, if any, in respect of the different classes of claims treated separately. The basic problem is the general question whether or not the washout of the railway embankment resulted directly from the existence of the works of the appellant in the river. And that is a question of fact.
The learned trial judge put his conclusion in these words:
After weighing carefully all the evidence, oral and literal, I can reach no other conclusion than that the dam of the defendant company at Hemmings falls was responsible for the washout of the railway embankment at Drummondville on Sunday, April 8, 1928.
The trial of the action took fourteen days. There are 959 pages of evidence besides 133 exhibits, including maps, plans, profiles, charts, photographs, records, water levels, records of flow, meteorological reports, vouchers, etc. More than one hundred witnesses gave evidence at the trial and over sixty per centum of the oral testimony was given in French. The learned trial judge, with his mastery of both the English and the French languages, was specially qualified to fully appreciate the oral testimony and has with great care minutely reviewed all the evidence in a judgment extending to fifty-eight pages. He heard and saw the expert witnesses and all the lay witnesses, the latter being mostly residents in the vicinity who described what they saw and told what they knew not only of the immediate events of the accident but of the happenings upon the river over the past many years. On a question of fact as to whether the damage to the railway embankment was caused by the existence of the works of the appellant, the trial judge was in a particularly advantageous position to properly weigh the mass of contradictory testimony and it would need something very clear and definite in the evidence to satisfy any court of appeal that findings of fact of a trial judge in such a case should be reversed. Counsel for the appellant very ably presented to us their analysis of the evidence in support of their contention that the trial judge had upon the evidence reached a wrong conclusion. During a lengthy argument they raised in our minds at times certain doubts but the very nature of the problem is such that one cannot look for certainty and must be content upon the balance of probabilities as to whether or not there was any direct relation between the existence of the dam and the damage to the embankment. A careful study of the evidence in the light of the arguments presented to us by counsel for the appellant has failed to satisfy me that the trial judge was wrong in the conclusion that he reached on the general question of liability.
No useful purpose is to be served by reviewing again the evidence in the case. The main defence of the appellant was that the accident was simply the result of a combination of natural forces and should be attributed to the act of God. In the carefully prepared factum presented to this Court by counsel for the appellant it is stated that they believe they are
in a position to successfully demonstrate that the evidence, although contradictory on many points, confirms
their contention. Where the question is one of fact and the evidence is admittedly “contradictory on many points,” the findings of fact by the trial judge cannot lightly be disturbed. Counsel for the appellant in discussing the evidence complain that in their view the learned trial judge rejected as a whole the evidence adduced by the experts and improperly declined to accept the evidence of the appellant’s expert witnesses; improperly, they say, because in their opinion the expert evidence on behalf of the appellant was consistent and the expert evidence on behalf of the respondent disclosed contradictory theories. There were three expert witnesses called by the respondent and four by the appellant. The evidence of all these witnesses was largely theoretical and we could quite appreciate the trial judge, if he had done so, disregarding such evidence and seeking a solution of the problem before him in the evidence of about one hundred lay witnesses who told from their own actual experiences and observations over a period of many years of the action of the St. Francis river at the time of spring floods and of the carrying off of the ice jams at the end of the winter seasons. But in point of fact the trial judge did not disregard the evidence of the expert witnesses. He has in his judgment carefully reviewed the evidence of these witnesses, taking first the expert evidence on one side and then the expert evidence on the other side. Having done that, he says that he found himself in a certain state of perplexity not only because the evidence of all the witnesses consisted largely in statements of theory but because these witnesses differed fundamentally among themselves. It was then that the trial judge turned to the evidence of the lay witnesses for an appreciation of the real facts in the case. Counsel for the appellant contend that a case of this nature should be determined largely upon evidence of witnesses who speak from certain precise data and known principles of science and that it is upon such evidence and not upon evidence of laymen who have not at their command such data or scientific knowledge that such a question as is involved in this action should be determined. In my view the trial judge approached the evidence, and I think rightly, in this manner: Having carefully reviewed and considered the evidence of all the expert witnesses and finding marked differences of opinion among them, he turned to the great mass of lay evidence and then accepted the theory of those experts that was consistent with the evidence of those lay witnesses whose evidence he accepted because of their practical experience and credibility. It is plain that the trial judge was much impressed with the evidence of one Mercure. Mercure lived for nearly fifty years in Drummondville alongside the river between the locations of the Drummondville dam and of the Hemmings falls dam. He had driven lumber down the river every spring for about forty years. He had a wide experience on the St. Francis river, at least in the section of it with which we are concerned. He had known the river in its different conditions, first in a state of nature, then with the dam that the town of Drummondville erected in 1896, later with the dam the appellant built in 1918 replacing the wooden dam that the town had built in 1896, and finally with the large dam and power house built across the river at Hemmings falls by the appellant in 1925. The result of his evidence was that before the dam at Hemmings falls was built there had never been floods as considerable as the one of 1928 and that there had never been ice jams of the size of those which had formed since the construction of that dam. He stated that prior to the erection of the dam and power house in 1925 there were rapids with a drop of over thirty feet and that ice very seldom formed in those rapids and that, when it did, it was not solid. He said that the long and wide basin of deep and still water created by the dam upstream a distance of about five and a half miles was an ideal “vessel,” to use his expression, for the formation of ice and the accumulation of frazil. Mercure had been accustomed, prior to the construction of the dam, to place logs during the winter months on the slope of the river bank to be taken away in the spring, and he said that if he had done the same in 1928 the logs would have been covered with at least twenty feet of ice. I quote the words of the trial judge:
Mercure is not expounding theories, but relating facts whereof he has been witness. He has rafted logs on the St. Francis river since 1885; he knows all the holes and nooks in the river; he has seen the river in its natural state and also since it has been dammed at Drummondville and later at Hemmings falls; he witnessed all the ice break-ups and spring floods for over forty-five years and always took a keen interest in them, as every spring he was waiting for the river to get clear to start floating his logs. I believe his testimony is of great value to the Court * * * he impressed me as being frank and honest and I have no reason not to believe his testimony. Besides, Mercure is corroborated by a number of witnesses, particularly with respect to the greater seriousness of the floods and jams since the construction of the Hemmings falls dam and the fact that, prior to such construction, the ice below the Dauphinais rapids always left in the spring before the ice from upstream arrived.
The trial judge then directs attention in his judgment to particular portions of the evidence of thirteen witnesses in corroboration generally of Mercure’s evidence, and concluded that he saw no reason to believe that the ice and water running down normally in the river in a state of nature, though somewhat more abundant than in previous years as a result of persistently mild weather, would have been sufficient to damage the railway embankment. That conclusion was reached after a careful review of all the evidence of both the expert and the lay witnesses, and is a conclusion that agrees entirely with the evidence of the expert witness, McLaghlan. McLaghlan is an hydraulic engineer who has been employed by the Department of Railways and Canals since 1907. He made a special study of the St. Francis river during the two months prior to the trial of the action. Asked directly,
What is the cause of this washout suffered by the railway at Drummondville on the 8th April, 1928?
he answered:
The accident to the Canadian National Railway was brought about by the state of the Hemmings falls dam without question. The building of that dam caused the jam to occur at a point it would not occur in nature. That jam was of such a nature that the people operating that plant could not control it, and it broke and went away at a time which shows itself the nature of the force on it.
And again he says:
That jam was caused by the dam, and the impounding of the water was caused by the jam, all attributable to the building of the Hemmings falls dam. Why? Because that Hemmings falls dam transferred a jam from below the rapids where it impounded practically nothing to a point upstream where it impounded an enormous quantity of water.
* * *
That excess flow was caused by the jam, suddenly breaking; the jam itself was caused by the building of the Hemmings falls dam where it is * * * The whole accident is traceable directly to interfering with nature by building the Hemmings falls dam at a point which was not suitable to stowing the ice that comes out of that river in the break-up period.
Upon the evidence the learned trial judge said he could reach no other conclusion than that the dam at Hemmings falls was responsible for the washout of the railway embankment at Drummondville. But counsel for the appellant argue that it was not fair for the trial judge to accept the evidence of Mercure in that he had a personal interest in the claim the Mercure Company had against the appellant for damages resulting from the floods of 1927 and 1928 and had assisted financially or otherwise in support of two other claims against the appellant, and was therefore vitally interested in this litigation. That was undoubtedly something that had to be seriously considered by the learned trial judge in weighing the evidence of Mercure. It was a powerful basis of attack by the appellant upon the whole evidence of Mercure but the trial judge saw and heard the witness and was told the facts upon which the alleged bias of the witness was asserted and notwithstanding this the trial judge said:
I do not think that this can in the least affect the credibility of the witness; he impressed me as being frank and honest and I have no reason not to believe his testimony.
It seems to me quite impossible for us upon an appeal, accepting as we should the learned trial judge’s view of the credibility of witnesses and his findings of fact on evidence that was admittedly contradictory both on theories and on facts, to set aside the finding made by the trial judge upon the main issue unless it is abundantly plain that he was obviously wrong in his conclusion. Not only do I think that there is nothing substantial to satisfy us that the trial judge was wrong but I think his conclusion was right.
Much stress was laid by counsel for the appellant upon their contention that having regard to the combination of abnormal natural forces it was really a case of vis major or damnum fatale. Great quantities of ice formed during the severe winter; heavy rainfall and high temperature followed in the spring; all of which were said to have constituted a combination of natural forces so unprecedented and beyond the control of the appellant as to relieve it of any liability. But all the evidence on this view of the action was carefully considered by the trial judge. This question involved a consideration of the evidence of other somewhat similar floods and ice jams in the St. Francis river at the same location in other years, particularly in 1887, 1913, 1915 and 1921, and a great deal of evidence was directed to these events, before the construction of the Hemmings falls dam, and to the severe flood and break-up in 1927 after the construction of the dam. Evidence was also given about the flood of 1932 (the accident in question in this case was in 1928). The trial judge was satisfied on the evidence that the three worst floods in the section of the river with which we are concerned were those of 1927, 1928 and 1932, and that the floods in 1887, 1915 and 1921 were lesser floods, and he found it difficult to think that this was a mere coincidence. I again quote the exact words of the trial judge:
I am convinced that these dams, particularly and to a much greater extent the dam at Hemmings falls, had the effect of facilitating and increasing the formation of sheet ice and the accumulation of broken ice and frazil underneath or behind it. The five and a half mile basin above Hemmings falls dam impounded enormous quantities of water, ice and frazil. Such a state of affairs is unquestionably conducive to the formation of ice jams of large proportion. Jams may have formed at the foot of Hemmings falls rapids prior to the construction of the dam, but in no wise comparable to those which formed upstream after the dam was erected. And I am satisfied that a jam formed at the foot of the Hemmings falls rapids, under natural conditions, would have gone down during the break-up period in an open river, before any ice jams at Labonté’s, at Dauphinais’, at Ulverton rapids, at Richmond or at any other place upstream would have reached the Hemmings falls rapids, as it has been asserted by several witnesses, all of them well acquainted with the behaviour of the river prior to the construction of the dam.
That there was a combination in the spring of 1928 of natural forces of an unusual nature is apparent from the evidence but that does not, as a matter of law, entitle the situation to be treated at damnum fatale or vis major. In the House of Lords in Greenock Corporation v. Caledonian Railway[2], referred to by the learned trial judge in his judgment, it is laid down to be the duty of any one who interferes with the course of a stream to see that the works which he substitutes for the channel provided by nature are adequate to carry off the water brought down even by extraordinary rainfall, and if damage results from the deficiency of the substitute which he has provided for the natural channel he will be liable. In that case a municipal authority, in laying out a park, constructed a concrete paddling pond for children in the bed of a stream and altered the course of the stream and obstructed the natural flow of water therefrom. Owing to a rainfall of extraordinary violence the stream overflowed at the pond, and, as the result of the operations of the authority, a great volume of water, which would have been carried off by the stream in its natural course without mischief, poured down a public street into the town and damaged the property of two railway companies. It was held that the extraordinary rainfall was not a damnum fatale which absolved the authority from responsibility, and that they were liable in damages to the railway companies. Lord Dunedin there quotes with approval the language of Lord Westbury, L.C., in Tennent v. Earl of Glasgow[3],
If anything be done by an individual which interferes with natural occurrences, such as, for example, in Lord Orkney’s case[4], throwing a dam across the course of a stream, it is undoubtedly the duty of that individual so to construct the work as to provide in an efficient manner, not only against usual occurrences and ordinary state of things, but also to provide against things which are unusual and extraordinary. The Greenock case[5] was a Scottish case but we find Lord Haldane in the House of Lords in the English case of Attorney-General and others v. Cory Brothers and Company Limited[6] referring to the Greenock case5 in these words:
The rainfall proved to have occurred at the period of the slide was no doubt unusually heavy, but it was of no unique character, nor of such as ought not to have been foreseen as possible. It could not be contended that it amounted to an “act of God,” to what is called in the jurisprudence of Scotland, a damnum fatale. Indeed, were your Lordships inclined to take a different view, you would be precluded from doing so by the judgment of this House in the recent case of Greenock Corporation v. Caledonian Railway Co.5.
The Greenock case5 was subsequently referred to in the Privy Council in a Quebec case, Montreal City v. Watt and Scott Limited[7], in the judgment delivered by Lord Dunedin.
The evidence in this case, tested by the standard laid down in the Greenock v. Caledonian Railway case5, was held by the learned trial judge not to constitute a damnum fatale or vis major and so relieve the appellant from liability. In that view of the evidence I entirely agree.
Then it was argued by counsel for the appellant that, in any event, the washout of the railway embankment was really due to the fault of the railway company itself in continuing to use the old gravel embankment instead of replacing it with a substantial modern structure, and it was suggested that if the alleged negligence of the railway company did not constitute a complete defence to the action, it at least constituted contributory negligence and would involve an apportionment between the parties of the amount of damages sustained. It is plain that the law of Quebec, unlike the law of England, as was admitted in Canadian Pacific Railway Co. v. Fréchette[8], and referred to by Lord Dunedin in the concluding paragraph of his judgment in the Privy Council in the City of Montreal case7, enjoins apportionment of the damage where there has been a negligence of the plaintiff contributing to the accident and their Lordships in the Privy Council in the City of Montreal7 case agreed that the doctrine is applicable to modify a liability established by article 1054 of the Civil Code. But this action is not founded, except incidentally as to the use of some dynamite and the operation of the gates in the spillway, upon the ground of negligence; it is in substance a case of nuisance. I cannot think that if what I have upon my property has adequately served my purpose for fifty years or more there is any duty in law upon me to protect it against what may be the result of the establishment and maintenance of a nuisance created by my neighbour upon his land. As between the owner of a dam and other persons, it may not be a question of negligence in construction or operation of the dam but the fact of the interference with the natural level and flow of the river caused by the obstruction in the river, that may give rise to a liability to the other persons to whom a duty lies not to interfere with the natural level and flow of the river, notwithstanding that there be no negligence in the actual construction or operation of the dam. Of course if statutory power is given to construct the works without reserving any remedy to private persons adversely affected, that is a differen