VOL. XIII.] EXCHEQUER COURT REPORTS. • 521 THE KING on the in formation of the Attorney- General of Canada 1912 - PLAINTIFF; Feb. 14. AND THE MONCTON LAND COMPANY, LIMITED, AND NAPOLEON J. GOVANG AND PACIFIC D. BREAD DEFENDANTS. Expropriation of land—Compensation—`;Prospective Capabilities"—Market Value. In assessing compensation for lands taken for the purposes of a public work, primi facie the market price governs, but the "prospective capabilities" of the property must be taken into account. Usually such capabilities form an element in fixing the market price. Brown v. The King (12 Ex. C. R. 463) followed. I NFORMATION filed by the Attorney-General for Canada for the expropriation of certain lands in the City of Moncton for the purposes of the Inter-colonial Railway. October 24th, 25th, 26th and 27th, 1911. The case came on for trial at St. John, N.B. H. A: Powell, K.C. and J. Friel for the Crown; W, Nesbitt, K.C., M. G. Teed, K.C. and G. L. Harris for the defendant company. C. W. Robinson for the defendant Breau. Counsel for the defendants relied on Lucas v. Chesterfield Gas and Water Board (1) ; Brown v. Mayor of Montreal (2) ; Davies v. James Bay Ry. Co. (3) ; Cowper Essex v. Local Board (4) ; Mayer on Compen- (1) (1909) 1 K.B. 16.' (3) 20 O.L.R. 534. (2) L.R. 2 A.C. 168. (4) L.R. 14 A.C. 153.
522 EXCHEQUER COURT REPORTS. [VOL. XIII. 1912 sation (1); Hudson on Compensation(2); Cripps on THE KING Compensation (3); Brown and Allen on Compensation THE (4). MONCTON LAND Co. Reasons for CASSELS, J. now (February 14th, 1912) delivered Judgment. judgment. This is an information filed on behalf of the Crown to have the value of certain lands expropriated for the use of the Intercolonial Railway ascertained. The lands expropriated comprise 11% acres situate in the City of Moncton. The trial lasted four days, and a great deal of evidence was adduced. Since the trial I have carefully analyzed the evidence. I do not propose to quote therefrom, as to do so would necessitate repeating a considerable part of it. It is agreed that the date at which the expropriation took place and for ascertaining the compensation is the 23rd October, 1909. There is not room for much dispute as to the method of arriving at the compensation. The company, whose lands are expropriated, are entitled to be fully compensated for the loss they have sustained by reason of the exercise of the right of eminent domain. I have had occasion to express my views in Brown v. The King (5) ; and other cases. Dodge v. The King (6) ; is a guide. "Prospective capabilities" have to be taken into account. Primâ facie the market price governs. Usually the prospective capabilities forman element in fixing the market price. In the present case the lands are situate in the city of Moncton. They were, before the expropriation, divided by plan into building lots, and I propose in dealing with (1) 1903 ed. p. 140. (4) (1903) 2nd ed. p. 97. (2) Pp. 287, 308. (5) 12 Ex. C. R. 463. (3) 4th ed. p. 98. (6) 38 S. C. R. 149.
VOL. XIII.] EXCIIEQUER COURT REPORTS. 523 the question of compensation to deal with them as such, 112 although I do not think it of much consequence whether THE KING they were so laid out on a plan ©r not. The real Ta E point is what method of realizing would yield the LAND CO best return. I know of a recent sale of land within Reasons for three miles of a large city used as a farm which realized Judgment. $3500 an acre. The purchaser acquired the lands to be retailed on the market for building lots. There is no magic in a plan. In the case before me the lands in question were treated as building lots by the government valuators. The area taken by the railway comprised 11 1 4 acres. It was assumed at the time _ that this was equiva'.ent to sixty-one and one-half lots. It is hardly questioned that after the expropriation the best method of laying out the remaining lands north and south of the expropriated . area is by laying out the two streets Essex and York running west to east as shewn on the plan. 'This method of utilizing . the 'ands minimizes as far as possible the damage caused by the severance of the lands, and is, I think, in ease of the Crown. There are said to be, as I have, stated, sixty-one and a half lots expropriated. To the north there remain 289 lots; to the south 180 lots. Allowing for the cross streets Essex and York streets would each require 2.3 acres, or 4.0 acres for both. Mr. Jones states, and it does not seem to be disputed, that allowing for streets of the width in question, each acre divides into Gi a lots. These 4 • G acres would yield 30.82 lots which have to be put into roadways. It was suggested at the trial by counsel that as Imperial Avenue which the Company intended to lay out would have been lost for building lots, therefore only one 'of the new streets should be allowed for, the other being in lieu of Impe
524 EXCHEQUER COURT REPORTS [VOL. XIII. 1912 rial Avenue, and this seems to have been the view of THE KING . all concerned. It no doubt would be correct on that v MoNcroN understanding. On analyzing the evidence I find LAND CO. however that Mr. Taylor in arriving at the 61M lots Reasons for Judgment. expropriated called the 11% acres, has deducted the area comprised in the proposed Imperial Avenue, otherwise instead of there being 61M lots there would be about 77 lots. I therefore propose to allow for the lots lost by the laying out of both York and Essex Streets one of the streets as mentioned having been deducted in reducing the 11M acres to 61M lots. The result is that the lands expropriated and the lands necessitated for streets amount to 61M plus 30.82 lots, or about 92 lots. The lands north of the expropriated land comprise 289 lots, from which must be deducted 15.41 lots taken for Essex Street, leaving 274.41 lots. The lands south of the expropriated Iand comprise 180 lots, and deducting 15.41 lots for York Street, leaves • 165.41 lots. It is difficult to arrive at an exact sum as the fair value of the damage. There is no doubt the damage to the property both north and south of the lands expropriated caused by the severance and the closing of the streets is considerable. The damage to those lots south of the expropriated land is not so great as to those on the north, nor is the damage to the lots either north or south equal to the damage to those nearer to the railway which necessarily suffer more than those more remote. The land company claims $100,000; the Crown offers $15,889. The fact of the discovery of natural gas, and the works of the Transcontinental Railway, necessarily have to be considered. Moreover, it is apparent that some lots are more valuable than others.
VOL. XIII.] EXCHEQUER COURT REPORTS. .I think I will be doing justice to all parties if T fix the value of the lots at $175 on the average. Taking 92 lots expropriated at $175 would equal.... .. $ 16,100 Thè injury to the lots north of the' expropriated land, 274, averaging them, I would place at $20 a lot.. The injury to those south (180 lots) averaging them, I would place at $15 a lot If to this amount the sum of $3,000 be added. for . compulsory expropriation and cost of grading one of the two cross streets and incidentals the total would amount to $27,280, and this amount I allow company. Interest should be allowed on the $16,100 and the company are entitled .to their costs of action. I had written mÿ opinion several weeks ago, 'but have delayed delivering it until the undertaking offered by the Crown was settled upon and filed. This undertaking was filed today and should be embodied in the formal judgment. I think if the defendant Breau be allowed $150 for the. land taken from him • and the damage, he will be fully compensated, and I allow him his costs which • I fix at '$50. • Judgment accordingly. Solicitor for the plaintiff : J. Friel. Solicitors for the defendant Company: M. G. Teed. Solicitor for defendant Breau: C. W. Robinson. - - 525 1 , 9 y 12 . THE KING V . MONCTON LAND Co. Reasons for Judgment 5,480 2,700 $ 24,280 - to the
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.