1904

The conductor in charge of a railway train is, for the Judgment time being, vested with important functions and assumes RICHARDS,J. great responsibility and is to all persons on that train,

or injured by it, the Railway Company's representative and trusted official in control. For the purposes of such an action as the present one, he seems to me as properly an official of the Company for examination as the President or General Manager would be in an action concerning debentures issued by the Company.

The order will be that the conductor Friday attend and submit to be examined at his own expense.

Costs of the application to be costs in the cause to the plaintiff in any event.

BANNATYNE V. THE SUBURBAN RAPID TRANSIT CO.
Before PERDUE, J.

Street railway-Trees on highway-Rights of owner of adjoining
land-Injunction-Municipal Act, R.S.M. 1902, c. 116, s. 688.
The right of property in shade trees on highways and to fence them
in conferred upon the owners of the lands adjacent to the high-
ways by section 688 of The Municipal Act, R.S.M. 1902, c. 116,
is not taken away by an Act incorporating a railway company
with power to construct a line of railway along the public highway"
with the consent of the municipality and according to plans to be
approved by the council of the municipality, even although such
consent has been given and such plans approved.

Douglas v. Fox, (1880) 31 U.C.C.P. 140, and Re Cuno, (1888) 43 Ch.
D. 12, followed.

The defendants' Act of incorporation provided that the several
clauses of the Manitoba Railway Act, R.S.M. 1902, c. 145, should
be incorporated with and deemed part of it. And the Railway
Act provides that the several clauses of The Manitoba Expropria-
tion Act, R.S.M. 1902, c. 61, with respect to the expropriation of
land and the compensation to be paid therefor shall be deemed
to be incorporated mutatis mutandis with the Railway Act.
Held, that the defendants had no right to cut down the trees on the
highway or to lower the grade in front of the plaintiffs' land,
although such action was necessary in carrying out the approved
plans without taking the proper steps, under the Railway Act
and the Expropriation Act, either to ascertain and pay the dam-
ages suffered by the plaintiffs to their land injuriously affected
by the intended construction, or to procure an order from a
Judge, under section 25 of the Railway Act, giving them the
right to take possession upon giving security for payment of the
compensation to be awarded; and that the interim injunction se-
cured by the plaintiffs should be continued until the trial unless
the defendants should furnish security that they would proceed
forthwith to settle the amount of such compensation.
Parkdale v. West, (1887) 12 A.C. 602; North Shore Ry. Co. v.
Pion, (1889) 14 A.C. 612, and Hendrie v. Toronto H. & B. Ry.,
(1896) 27 O.R. 46, followed.

ARGUED: 30th August, 1904.
DECIDED: 12th September, 1904.

1904

1901

MOTION to continue an injunction until the trial of the Statement. action.

'The statement of claim alleged that the plaintiffs were the owners of Lot 10, part of Parish Lots 122 St. Charles and 12 St. James; that as such owners they were the proprietors of all shade trees, shrubs and saplings that were growing upon the southerly side of the Portage Road, opposite to the said lands; that on or about 29th June and 13th August, 1904, the defendants cut down and destroyed a large number of the trees, shrubs and saplings on the southerly side of the Portage road opposite the plaintiffs' land, and that they intended, unless restrained, to cut down the remainder. The plaintiffs claimed an injunction and damages for the alleged wrongful acts.

J. E. O'Connor for plaintiffs. The trees in question were on the highway. By section 688 of The Municipal Act, shade trees are deemed to be the property of the owner of the land adjoining and he is allowed to fence in eight feet of the roadway. The provisions are identical with those of the Tree Planting Act of Ontario: Douglas v. Fox, 31 U.C.C.P. 140; Hodgins v. Toronto, 19 A.R. 537; Connor v. Middagh, 16 A.R. 356. Defendant Company can only occupy streets so far as they can do so without injuring the rights of third persons as distinguished from the public: Metropolitan Asylums v. Hill 6 A. C. 193; Foster v. Lansdowne, 12 M.R. 416; C.P.R. v. Parke, [1899] A.C. 435. By section 13 of the Company's Act, rails are to be laid flush with the highway, therefore they have no right to raise the grade. There is no power to cut trees growing on highway, the property of third persons, granted in terms by the Act, and whether by accident or design the Legislature has not dealt with such a condition and has not by s. 12 of 1-2 Edw. VII., c. 71, given defendants any such power: Clowes v. Staffordshire, L.R. 8 Ch. 125; Grand Junction Canal Co. v. Shu

gar, L.R. 6 Ch. 483. The burden of shewing that a right 1904 has been taken away by Act of Parliament beyond all Argument. question is upon the defendant Company, because if a public company, or any individual, obtain an Act of Parliament which they say enabled them to take away the common law rights of any person they are bound to shew that it does it with sufficient clearness: Webb v. Manchester & Leeds Ry. Co., 4 Myl. & Cr. 116, at p. 120; approved in Simpson v. South Staffordshire Ry. Co., 34 L.J. Chy. at p. 387; Clowes v. Staffordshire Waterworks Co., L.R. 8 Ch. 139; Harding v. Cardiff, 29 Gr. 308; Galloway v. Mayor, &c., of London, L.R. 1 H.L. 34. Such power will not be implied; the Legislature is not presumed to confiscate property: London v. Evans, [1893] 1 Ch. 16, 28; Wells v. London, 5 Ch. D. 130; East London v. Whitchurch, L.R. 7 H.L. 81, 89; Walsh v. Secretary for India, 10 H.L. Cas. 367. Defendants can occupy the highway without destroying the plaintiffs' property by a reasonable exercise of their powers, and are therefore bound to use them so as to avoid damage to property of third persons: Coats v. Clarence Ry. Co., 1 Russ. & My. 181, followed in Roberts v. Charing Cross Ry. Co., [1903] W.N. 13; Hardcastle, 298; Atcheson v. P. la P., 9 M.R., 193; Geddis v. Bann Reservoir, 3 A.C. 430, 455; Gas Light & Coke Co. v. St. Mary Abbotts, 15 Q.B.D. 1. Words should not be added to or subtracted from a statute without almost a necessity: Cowper Essex v. Local Board for Acton, 14 A.C. 169. There is no power given to expropriate the trees, therefore the Legislature designedly omitted to do so: Union Bank v. Ingram, 20 Ch. D. 465; Atty. Gen. v. Sillem, 10 H.L. Cas. 704. To confer or take away legal rights, whether public or private, express words are absolutely indispensable; Reg. v. Harrold, L.R. 7 Q.B. 362; Beresford-Hope v. Sandhurst, 23 Q.B.D. 79; De Sousa v. Cobden, [1891] 1 Q.B. 687. A statute must

1904 not be construed to take away rights existing before the Argument. statute was passed, unless the plain words of the statute

indicate that that was the intention of the Legislature; Re Cuno, 43 Ch. D. 17. Rights, public or private, are not to be lightly taken away or even hampered by mere implication from the language used in a statute unless the Legislature clearly and distinctly authorizes the doing of something which is physically inconsistent with the continuance of an existing right: Mayor of Yarmouth, v. Simmonds, 10 Ch. D. 527; London v. Evans, [1893] 1 Ch. 16; Randolph v. Milman, 1868, L.R. 4 C.P. 107. To take away a right, it must be shown the Legislature has authorized the thing to be done at all events and irrespective of its possible interference with existing rights: Western Counties Ry. v. Windson Ry. Co., 7 A.C. 189; Forbes v. Ecclesiastical Commrs., L.R., 15 Eq. 53; Moubray v. Drew, [1893] A.C. at p. 300. In any event the council could not give the Railway Company power to cut trees that they did not themselves possess, except, if at all, by giving owners one month's notice and paying compensation. This has not been given and the special Act does not dispense with it. The special Act is not inconsistent on this point with the general Act: Uckfield v. Crowborough, [1899] 2 Q.B. 664. The building of the Railway not an improvement of the highway within the meaning of the Municipal Act: Hodgins v. Toronto, 16 A.R. 356. The intention was to go to the Municipality for leave to go on the road, but not to destroy the property of private persons. A right is not to be taken away by a special Act by implication: Hardcastle, 489; Parker v. G.W.R., 7 Scott, N.R. 870; Scottish v. Campbell, 14 A.C. 142; Lamb v. North London Ry. Co, L.R. 4 Ch. 522. 528; Webb v. Manchester & Leeds Ry. Co., 4 Myl. & Cr. 116. Even if the Company had power to expropriate these trees, reading this into the clauses of the Railway