64 EXCHEQUER COURT REPORTS. [VOL. V. 1.896 THE QUEEN ON THE INFORMATION OF Jan. 20. THE ATTORNEY-GENERAL FOR THE PLAINTTFF; DOMINION OF CANADA AND JAMES A. CLAIRE DEFENDANT. Expropriation for railway purposes—Owner left possession of buildings on expropriated property—Ose and occupation—Profits—Interest—Corn-pen sation. Where the Crown had expropriated certain real property for the purposes of a railway, but had for a number of years left the owner in the use and occupation of several buildings thereon, two of which, an hotel and a store, were burned uninsured before action brought, compensation was allowed him for the value, at the time of the expropriation, of all the buildings, together with interest on the value of the hotel and store from the time they were so destroyed. THIS was an information for the expropriation of certain property at Port Moody, B.C., required for the purposes of the Canadian Pacific Railway. The facts of the case are stated in the reasons for judgment. The case was heard at Vancouver, B.C., before the Judge of the Exchequer Court on the 16th and 17th days of September, 1895. B. H. T. Drake for plaintiff; W. M. Gray for defendant. THE JUDGE OF THE EXCHEQUER COURT now (Jan-uary 20th, 1896) delivered judgment. The information is filed under The Expropriation Act in respect of certain lands at Port Moody, on Burrard's Inlet, in British Columbia, taken for the Canadian Pacific Railway. The title and interest of the defendant are admitted, and the only question in dispute is the
VOL V.] EXCHEQUER COURT REPORTS. 65 amount of compensation. The 'Crown offers the sum 1896 -of $149:0'( for the land taken and for damages. The offer is based apparently upon an estimated value per Quvx -acre of about eleven dollars ; and no account has been CLARKE. taken of the prospective capabilities of the property . Rea., from its situation and character, or of the fact that the.raa :ent. whole water front of the property has been expro priated, or of other damages arising from the severance and the construction of the railway. These clearly are elements to be taken' into account, so that apart altogether from the defendant's claim to be compen- sated for the value of a number of buildings that were on the property, when in 1885 the Crown's title was. perfected, the offer is, I think; altogether insufficient. The d&fendant 'estimates the 'compensation to which • he is entitled at $20,718:74. (Of this ,sure X4,000.00 is for a hotel and a store ; 'and $2,1E00.00 for seven small houses. The evidence ,as to the value of these 'build- ings is all :one way ; the only question is as to the de- fendant's right to recover. The property had pre- viously to. the taking of any part of it been laid out town lots, aired the plan of the subdivision duly regis- tered. I r the fifteen lots, taken in whole or in part, in question in this case the defendant 'claims $2,1.04..24 for 10.9.9 acres -exclusive of such lots but including the whole water front, $9,574:50.; and for .damages from severance, etc:, $3;000, making to .all . die sum tof $20,778.74 mentioned. The 10.:99 acres referred to in- clude portions ,of severalstreets 'shown on the plain or su'bdi'vision .of the property:; and for +such. portions :cf such streets *)hé defendant is nit (entitled to cd' pen'sa- tion.:('1) The 'jute rference, 'bowie ver, with such istreets is a matter to be considered in assessing :damages for tire injurious affection of his property. Then with regard to the value that he puts upon the property, it is to be (1) Paint v. The Queen, 2 Ex. C. R. 154 ; 18 Can. S. ÇC. R 718. 5
66 EXCHEQUER COURT REPORTS. [VOL. V. 1896 observed that Port Moody was never a town except T on paper, and that such values are based upon sales 'QUEEN made at a time when it was thought, and because it V. CLARKE. was thought, that it was to be the western terminus Reasons of the Canadian Pacific Railway. Apart from the view Judgment. or belief that the terminus was to be there the property never had any such value. Now, if the railway had stopped at Port Moody instead of being carried on to Vancouver, the advantages accruing to the defendant's property there would have had to be taken into account in assessing compensation for land taken and for damages (1) ; and the value of such advantages deducted from the compensation to which the defendant would otherwise be entitled. Such an advantage being an element to be taken into account in the reduction of damages in the case mentioned ought not, it is clear, to be included as an element in estimating the value of .property under the circumstances of this case.. The :speculative values that town lots at Port Moody had, while it was thought it was to be the terminus of the railway, disappeared as soon as it was known that the railway was to be continued to Vancouver. In 1878 ,or 1879 there were some sales at fifty dollars a lot ; but I have no doubt that in that value to a greater or less degree the element of the prospective terminus entered. Part of that sum, probably, and certainly • everything beyond it, represented the value of lots in a, town that was to be .the terminus of the railway. In 1877, Mr. Cambie, the resident engineer in charge 'of the work, entered on the lauds in question in this case, and set up a stake, and instructed the engineers under him to survey a line from that point easterly to Yale. On the 6th of September, 1882, a plan was filed (1) The Government Railways and Paint v. The Queen, 2 Ex. Act, 1881, s. 16 ; R. S. C. c. 40, C. R. 149, and Can. 18, S. C. R. 15 ; 50-51 Viet. c. 16, s. 31 ; 718.
VOL. V.] EXCHEQUER COURT REPORTS. 67 in the proper registry office, on which was shown in a 1896 general way the portion of the defendant's land that T g the Crown proposed to take for the railway. But the QUEE v. N .proceedings did not comply with the statute then in -CLARKE. force (The Government Railways Act, 1881, section ten) Seasons inasmuch as no description of the lands was deposited.rud f ent. in the registry ; and with the exception possibly of the actual right of way, there was no such taking possession of the lands expropriated as would give the Crown title • u nder the eighteenth section .of the Act—assuming that section to be applicable to the case. In July, 1885, the Crown made good its title by filing in the registry office a plan and description in accordance with the statute. This question of when the Crown acquired title has no material bearing on the matter of compensation, except with reference to the buildings I have mentioned, which were put up between the years 1882 and 1885. As to the general question of values, apart from such as resulted from the belief that Port Moody was to be the terminus, there was no. advance between the years 1882 and 1885. But if the Crown acquired title in 1882 this part of the defendant's claim fails. If, on the contrary, the Crown did not acquire title to the portion of the land on which the buildings were put up, until July, 1885, and I think it did not, then he should succeed. There is another incident in connectiôn with these buildings which has not only a bearing on the question of title so far as that might be thought to depend on possession, but also upon the question of interest. The defendant was left in possession of the buildings after July, 1885. The hotel and store were burned, uninsured, in July, 1888 ; but until that time he was in receipt of the rents from both buildings, and, at the time S of the trial he was still in possession of the other buildings. I think the defendant is entitled to the value of these buildings, and that 5,
68 EXCHEQUER COURT REPORTS. [VOL. V. 1895 he should have interest on the value of the hotel and Ts store since July, 1888. As to the other buildings, no QU . EEN interest should be allowed, without taking the rents v CLARKE. into account, and the evidence is not clear and satis-ue i. factory enough to permit of that being done. The Jud ent. simplest way will be to allow the rents to go against the interest. For the land taken (not including the buildings) and for all damages, I allow the defendant $2,500 ; for the hotel and store, $4,000 ; and for the seven other buildings, $2,100. To the sum of S2,500 will be added interest for ten years and a half, and to the sum of $4,000, seven and one half years' interest. The defendant will have his costs. Judgment accordingly. Solicitor for the plaintiff : H. B. W. Aikman. Solicitors for the defendant : Drake, Jackson 4- Helmcken.•
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.