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cipality might, upon a month's notice to the plaintiffs, cause the trees to be removed, compensation to be made Judgment. in the manner provided in the section. The Council did PERDUE, J. not, however, take this step and it appears to me that in any event it could only act under this section where the removal of the trees was required in connection with some improvement to the highway, as a matter of utility to the general public in their use of the highway for purposes of ordinary travel. The Council could not invoke these powers to aid a railway company in placing its line of road upon one of the public highways. In any event the Council has not taken any action under this section.

Defendants' counsel cited Montreal & Ottawa Ry. Co.' v. City of Ottawa, 4 O.L.R. 56, affirmed in 33 S.C.R. 376, in support of the contention that the compensation clauses in the Railway Act cannot be invoked in the plaintiffs' favour. That case, however, simply decided that a Municipality has no right to claim compensation for the user of a public highway by a railway company crossing the same where the railway was duly authorized to make such crossing. It does not deal with the rights of individuals.

The Company having neglected to take the steps for compensating the plaintiffs which it was bound to take, as a condition precedent to cutting the trees and occupying the eight foot strip of the highway in front of the plaintiffs' land, it has been guilty of trespasses which it threatens to continue and repeat. To refuse the injunction would permit the destruction of the remaining trees and the occupation by the Company of the eight foot strip, while the Company refuses to set in motion the procedure contained in the statute for compensating the plaintiffs and obtaining lawful possession.

I must therefore continue the injunction until the trial of the action. But, while doing so, I feel that I must regard the provisions of section 25 of the Manitoba Railway

1904 Act. That section provides that a judge may, upon it Judgment. being shown by affidavit to his satisfaction that the immePERDUE, J. diate possession of lands is necessary to carry on the rail

way, grant a warrant to put the company in possession, the company to furnish security for the payment of the compensation to be awarded. It would be against the public interest to tie up the construction of this railway upon the ground simply that the Company had neglected to take steps to compensate the plaintiffs, if the rights of the latter can be fully protected. As the plan of the line has been submitted to the Municipality and approved by it, it might now be difficult to make an alteration in the location of the line so as to spare the remaining trees.

I therefore direct that the injunction shall be dissolved upon the defendant Company furnishing security to my satisfaction that it will forthwith proceed under the Act to settle the amount of the compensation to be awarded to the plaintiffs for the injuries complained of, and for any other injuries to the plaintiffs' lands which will be occasioned by the construction and operation of the proposed line of railway.

As the defendant Company has neglected to take the proceedings for settling the amount of the compensation, the statute cannot be pleaded in justification of the acts complained of, and the defendants are therefore trespassers. The judge at the trial may therefore have to deal with the question of damages, if any, already accrued, unless otherwise settled or arranged. See Mason v. The South Nor folk Ry. Co., 19 O.R. 132.

Costs reserved until hearing.

HUMPHREYS V. CLEAVE.

Before RICHARDS and PERDUE, JJ.

Mechanic's Lien-Mechanics' and Wage Earners' Lien Act, R.S.M.
1902, c. 110, ss. 37, 39-Costs of sale and reference to Master-
Limitation of 25 per cent., to what costs applicable.

The expression "costs of the action awarded in any action under
this Act by the Judge or local Judge trying the action" in section
37 of The Mechanics' and Wage Earners' Lien Act, R.S.M. 1902,
c. 110, refers to the costs up to and including the trial, and means
the costs which are allowed by the Judge at the hearing and enter-
ed in the judgment, and the provisions of that section, limiting
the costs to be allowed in such action exclusive of disbursements
to twenty-five per cent. of the amount of the judgment, do not
apply to the subsequent costs of sale and proceedings before the
master, which may be dealt with by the Judge as in other cases.
Gearing v. Robinson, (1900) 19 P.R. 192, followed.
The judgment pronounced empowered the master to tax and add
to the plaintiffs' claim the costs of the subsequent proceedings,.
and the master under it allowed the ordinary costs of a sale con-
ducted in his office, and there was no appeal from the judgment.
Held, on an appeal from the taxation, that the Court could not in-
terfere with the provisions of the judgment.
Section 31 of the Act provides an alternative mode of proceeding to
enforce a lien in which the Judge disposes of everything necessary
to realize the claims without a reference to the master, and section
39 provides that, when the least expensive course is not taken by
the plaintiff, the costs allowed shall not exceed what would have
been incurred if the least expensive course had been taken.
Held, per Richards, J., that it could not be assumed that proceedings
under section 31 would have been any less expensive than those
which had been taken.

Per Perdue, J., that the question as to the least expensive course
should have been dealt with, if at all, by the Judge who tried the
action, and the taxing officer had no power, without a special direc-
tion in the judgment, to determine which would have been the
least expensive course,

ARGUED: 7th May, 1904.
DECIDED: 12th July, 1904.

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THIS action was taken to realize under a mechanic's Statement lien. The proceedings were the ordinary procedure of the Court as provided by section 27 of the Mechanics' and Wage Earners' Lien Act, R.S.M. 1902, c. 110, and the plaintiffs were awarded costs. The defendant did not pay the judgment and the plaintiffs were obliged, in order to realize, to take the usual proceedings for sale under the reference to the master provided for in the judgment.

On the taxation of costs the question arose whether the provision of section 37, that the costs awarded shall not exceed in the aggregate 25 per cent. of the amount of the judgment besides actual disbursements, applied to the costs of a reference and sale as well as to those up to judg ment, or only to the costs up to judgment.

Dubuc, C.J., held on an appeal from the taxation that the 25 per cent. limit only referred to costs up to the entry of judgment, and that costs of the reference should be taxed and allowed as in ordinary actions.

The matter came up by way of appeal from that decision.

A. B. Hudson for appellant. The contention of appellant is that sec. 37 of The Mechanics' and Wage Earners' Lien Act, R.S.M. 1902, c. 110, extends to all costs. Here the total costs were only $12 less than the aggregate amount of liens allowed. "Costs of the action" include costs subsequent to decree: Quarrell v. Beckford, 1 Mad. 285; Krehl v. Park, 23 W. R. 475; Patton v. West of England Iron Co., [1894] 2 Q.B. 159; Seton on Decrees, vol. 1, 1. 257; Gearing v. Robinson, 19 P.R. 192, held that costs of appeal were not part of the costs of the action, but an appeal is something not contemplated by a judgment and it is clear that a Judge at the trial could not award costs of an appeal.-The judgment pronounced at the trial awarded all the costs whether before or after the trial of the action: Atty. Gen. v. Sillem, 10 H.L. Cas. 704.

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A. E. Hoskin for plaintiffs, respondents. There is a distinction between the costs of the action and the subse- Argument. quent costs of the sale. The judgment provides for the costs being taxed and inserted in the schedule to the judg ment, which could only be the costs down to and including the trial; and then it goes on to provide that, on default in payment of the amount of the judgment, the master should tax the subsequent costs in the matter and this has not been appealed from. The cases referred to by the appellant are not in point, as there the actions were referred to the referee for trial. So the reference was not one in the ordinary sense of the term: Gearing v. Robinson, 19 P.R. 192, is in favour of the plaintiffs. The statute has only reference to the costs down to the trial, and it was never intended that an unsuccessful party should be in a position to put the other side to large expense after the trial without being answerable for the costs, which in most cases would be the result if the appellant's contention is correct. Section 31 of the statute apparently contemplates the whole matter being disposed of at the trial and embodied by the Judge in his judgment-see form of judgment in the statute and does not contemplate or provide for the case of a reference. This shows that the costs which are dealt with by section 37 are the costs of these proceedings under the statute, and that the Legislature was not dealing with, and did not intend to deal with, the case of a reference; and, where a reference is directed, the costs of such reference are outside of the provisions of the statute.

RICHARDS, J.-It is difficult to find any guide to the solution of the question in this case. Section 38 of the Act limits the costs that may be awarded against the plaintiff to 25 per cent. of the amount claimed. As there would be no reference in a case where the defendant succeeded and became entitled to costs as against the plain

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