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1904

Act, they could only do so after taking the proceedings pointed out by the Railway Act. These are conditions Argument. precedent and have not been taken and the defendant Company should be enjoined: Parkdale v. West, 12 A.C. 602; North Shore v. Pion, 14 A.C. 612; Mason v. South Norfolk Ry. Co., 19 O.R. 132; Arthur v. G.T.R., 25 O.R. 38; 22 A.R. 89; Bigaoutte v. North Shore, 17 S.C.R. 363; Prothero v. Tottenham, [1891] 3 Ch. 278; Kingston & Pembroke Ry. Co. v. Murphy, 17 S.C.R. 582; Liverpool v. Chorley Waterworks Co., 2 D.M. & G. 852. There is no question of the balance of convenience where the destruction of the article is involved: Elwes v. Payne, 12 Ch. D. 468. As the defendant Company intended to go on and cut trees it was necessary to stop them as damage would be done before the hearing: McLaren v. Caldwell, 5 A.R. 367; Hathaway v. Doig, 6 A.R. 264; Dwyre v. Ottawa, 25 A.R. 121. Destruction of trees is an irreparable damage: McDougall v. Grignon, Que. R. 15 S.C. 538.

cil.

J. H. Munson, K.C., and D. H. Laird for defendants. The defendants' line was authorized by the Municipality. The cutting of the trees was authorized by the statute and necessary to enable this line to be built. The plan of the road and line were approved by the Municipal CounNo further consent was necessary. The franchise was given by the Legislature to "use and occupy" the highway for the purpose subject only to consent of the Municipality. The expropriation clauses of the Railway Act for taking of lands do not apply to the rights of the Company on highways. All that is required is the consent of the Municipality: Montreal v. Ottawa Ry., 33 S.C.R. 376; Howe v. Hamilton & N.W.R. Co., 3 A.R. 336. The Railway Act deals separately with lands and highways: Can. Atlantic v. Ottawa, 2 O.L.R. 336; Sidney v. Young, [1898] A.C. 457. This case is similar to City

1904 & South London Ry. Co. v. London County Council, Argument. [1891] 2 Q.B. 513. There is a repeal by necessity, by

the special Act, of clauses 688, 689 and 690 of The Muni-
cipal Act, a general Act as to ownership of trees by ad-
joining owners. The Municipal Council considered the
location of the line. The Court cannot question the dis-
cretion of the Council: Booth on Street Railways, sec. 55.
The trees belong to the public, although the adjoining
owners may have a qualified interest. The consent of the
Municipality can be given otherwise than by by-law.
Pembroke v. Can. Central Ry. Co., 3 O.R. 503. No com-
plaint is made of excessive cutting. Under sub-section
(k), sec. 12, Manitoba Railway Act, defendants have the
right to cut down trees within six rods. The right to cut
is distinct from the right to expropriate: Ontario and
Quebec Ry. Co. and Taylor, 6 O.R. 338. The building of
a street railway is not a new use of the street, but an im-
proved use of the streets: Winnipeg St. Ry. Co. v. Winni
peg Electric St. Ry. Co., 9 M.R. 219. The Company will
be greatly inconvenienced by an injunction. The claim
if legally established can be compensated for in the ordin-
ary way by damages: Union Bank v. Ingram, 20 Ch. D.
463. As to the balance of convenience, McLaren v. Cald;
well, 5 A.R. 363. By section 25 of the Railway Act a
warrant for possession may be granted on the Railway
giving security for compensation. If the claim of plain-
tiffs be established to prevent the Company from building
along this highway, unless consent of adjoining owner be
obtained, no steam railway could be built crossing any
highway in Manitoba under the Manitoba Railway Act
without obtaining the same consent for any tree or sapling.
Clause 31 of The Railway Act, giving steam railways
the right to cross highways, is no wider than the clause in
question.

O'Connor in reply. There is nothing in the contracts

1904

or by-laws, or in the Acts validating the contracts and bylaws, authorizing the placing of the Railway on this par- Argument. ticular line as shown by the plan and profile. The Acts validate the contract and the by-laws but not the line as shewn by the plan.. The resolution of the Council ap proves the line as shewn by the plan, &c., and that is not validated by any prior or subsequent Act of the Legisla ture. There is no right to confiscate the property of third persons. The Legislature could not intend to give power to destroy the property of third persons. The line could have been swung around the trees. The Company's rights must be in plain terms, not by implication: Stretton v. G.W.R., L.R. 5 Ch. 751; Martin v. Price, [1894] 1 Ch. 276; Shelfer v. City of London, [1895] 1 Ch. 297. The Court is more strict with a company than with an individual: Joyce, 308, 392; Sutton v. Norwich, 27 L.J. Ch. 739. The clause in the Railway Act as to cutting trees applies to private property and the mode of compensation is provided, s-s. (k). The clause does not give power to cut trees on a highway. Only the Municipality and its officers can compel the removal of the trees. Municipality is not a party to the action and may never give the notice. The Company are wrongdoers and can be sued. Getting the consent of the Municipality does not mean power to expropriate the rights of third persons as distinguished from the rights of the general public in the highway: O'Connor v. Nova Scotia Telephone Co., 22 S.C.R. 295; Daily v. State of Ohio, 24 L.R.A. 725, at p. 728; Lawrence Ry. Co. v. Williams, 25 Ohio St., 765. Consent must not interfere with the rights of others. There is a substantial question to be tried: G.T.R. v. Pontypool, 3 O.W.R. 54.

The

PERDUE, J.-A number of affidavits and depositions. were produced, but there was little, if any, dispute as to the material facts. The defendant Company was in

1904

corporated by an Act passed by the Manitoba Legislature, Judgment. being 1 & 2 Edward VII, c. 71. The Company is authorPERDUE, J. ized by this Act to construct, equip and operate an electric

railway from the Western boundary of the City of Winnipeg westwards on both sides of the Assiniboine River, to a point near the Village of Headingly. By a subsequent Act, passed this year, being 3 & 4 Edw. VII, c. 86, the Company is given power to extend its line further westward and to construct a line to Stonewall. By the first Act, section 12, the Company is empowered to use and cccupy any and such parts of any of the highways in the Rural Municipality of Assiniboia as may be required for the purpose of its railway track, poles, wires, &c., the laying of rails and the running of cars, provided that the permission of the Municipality is first obtained, and the Municipality was authorized to grant such permission. By section 9 it was declared that the several clauses of the Manitoba Railway Act, R.S.M. 1902, c. 145, were incorporated with and deemed part of the Company's Act of incorporation.

Prior to the passing of the Act, the Municipality of Assiniboia had passed a by-law, No. 222, giving to the incorporators of the Company permission to construct the line in question along the Portage Road subject to certain conditions, and this by-law was ratified and confirmed by a provision of the Act (sec. 12). After the incorporation. of the Company an agreement was entered into between it and the Municipality, dated 14h June, 1902, whereby the Company was authorized to proceed with the construction upon the terms mentioned in the by-law. Two subsequent agreements were entered into, both of which are set out in the schedules to the later Act, and both of which were confirmed by the Act.

It is unnecessary to refer to the provisions of the above contracts further than to say that they give to the Com

1904

pany the necessary permission to construct over and along the Portage Road a railway track with the necessary side Judgment. tracks, switches, poles, wires and all appliances for the PERDUE, J. running of cars, a plan of the road bed to be first submitted to the Council of the Municipality and approved by it. A plan of the road bed including the portion opposite the plaintiffs' land was submitted to the Council and was approved by a resolution of the Council on 5th July, 1904.

The Company therefore appears to have secured the necessary power and authority from the Legislature to construct its line of railway over and along the highway at the point in question, and the necessary permission from the Council of the Municipality as required by the Act.

By the plan as approved, the centre line of the Company's railway was to be twenty feet from the Southerly boundary of the Portage Road where it passed along the front of the plaintiffs' land.

On the 29th June, 1904, the Company's contractor commenced to cut trees growing on the Portage Road opposite to the plaintiffs' land. On the following day, Mr. W. M. Bannatyne, one of the plaintiffs, notified the Company to desist from so doing and gave notice that he intended to fence in such of the trees on the highway as are standing within eight feet of the boundary of his property. Notwithstanding this notice, the Company by its contractor and his men re-commenced cutting the trees. action was then brought, and an interim injunction obtained against the Company and the contractor, the defendant Sinclair. It is admitted that no proceedings were taken by the Company under the compensation clauses contained in the Manitoba Expropriation Act.

This

The plaintiffs claim ownership of the trees in question under section 688 of the Municipal Act, R.S.M. 1902, c. 116, and also claim the right, under that section, to fence

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