1 18 EXCHEQUER COURT REPORTS. [VOL. 11. 1888 BENONI GUAY CLAIMANT ; Jane 30. AND HER MAJESTY THE QUEEN.... ...... ...RESPONDENT. Expropriation of land for Government railway—Damage occasioned by want of crossing. Where, upon the expropriation of land for the right of way of a Government railway through a claimant's property, a crossing over the railway is not provided by the Crown, damages will be allowed for the depreciation of his properly resulting from the absence of such crossing. THIS was a claim for damages arising out of the expropriation of a certain portion of land, belonging to the claimant Guay., situate in the Parish of St. Joseph, County of Lévis, P.Q , for the purposes of the St.Charles Branch of the Intercolonial Railway, and the consequent depreciation of adjoining lands of the claimant. The facts of the case are sufficiently stated in the judgment. • June 5th, 1888. Belleau, Q. C. for claimant ; Drouin, Q. C. and Angers for respondent. BURBIDC+E, J. now (June 30th, 1888) delivered judgment. Two properties in the possession of the claimant were crossed by the St. Charles Branch of the Interco-lonial Railway. One, that upon which his house and barn were situated, in two places ; the other, a wood-lot, only in one. The property first mentioned contained about thirty-nine arpents ; the latter about forty-five. The former was, for a consecutive number of years except one, valued for the purposes of assessment at $1,000 ; the latter at $300. Only one witness,
~ VOL. II.] EXCHEQUER COURT REPORTS. 19 David Charest, put a value on the first property as a 1888 whole, and he estimated its value at $4,000. I hesi- GIIY tate, however, to follow his opinion, as he, at the same TAE âu EEN. time, estimated the depreciation of the property by the Reasons construction of the railway at an amount exceeding the Judgm ent. sum which the claimant demands for land and dam- — ages together, by nearly one-half of that sum. For the two pieces of land taken from this property, amount- ing in all to 1.77 arpents, the claimant, in his statement of claim, demands a sum of $200, which I allow. I also allow him $ 120, "the amount claimed for 1.90 arpents of land expropriated on the other property. With reference to the depreciation of the property just mentioned, and apart from the evidence of Charest before referred to, oue witness for the claimant esti- mated it at $900 to $,1000 ; one for the Crown, at $200 ; two at $500, and one at $520. The chief inconvenience is the difficulty in using the sub-way, which is constructed on the side of the hill, but, as one of the witnesses suggested, the hill is not steeper than it was before, though there must be con- siderable inconvenience as the passage must be made directly, and in a narrow place. ' I do not attach any considerable importance to what is said by some of the witnesses as to the difficulty in getting water for the cattle. The depreciation of the wood-lot is caused by . the absence of a crossing (1). The reason why the claimant was not given any crossing is not disclosed by the evidence. I think he was entitled to one, and that it could have been constructed for a sum much less than the lowest estimate of the depreciation in value of this property for the want thereof given by the (1) REPORTER'S NOTE.—Under Crown to such effect, may order a 52 Vic. c. 38, s. 3, passed since the crossing to be constructed, and above judgment was delivered, the the sanie shall go in mitigation of court, upon an undertaking by the damages. z1
1 20 EXCHEQUER COURT REPORTS. [VOL. II. 1888 witnesses. With a crossing the depreciation would GuAy have been inconsiderable. This depreciation is estimated by the Crown's witnesses at sums varying from $200 THE QUEEN. to $300, and by two witnesses for the claimant at $500, Bensons including therein as well the value of the land taken. .7afl1.°1. I assess the compensation to be made in this case as follows :--- 1.77 arpents of land taken from property, 1st range .............$ 200.00 Depreciation of said property 500.00 1.90 arpents land taken from property in 3rd range $ 120.00 Depreciation of last mentioned property 250.00 $ 1,070.( 0 To this sum will be added interest from .Tune 8th, 1882, the date of the expropriation. There is no evidence of any tender, and the claimant is entitled to costs. The compensation is, however, assessed in respect of an estate free from any charge or incumbrance ; and the amount of such compensation is to be paid to the claimant upon his giving a good acquittance for all interests that may happen to exist in or to the said property. Leave is reserved for either party, or any person interested, in case a satisfactory apportionment of the compensation money cannot otherwise be arrived at, to apply to the court for a distribution of the same.* Solicitors for claimant : Belleau, Stafford 4- Belleau. Solicitors for respondent : Cass; rain, Angei s 4. Hamel. *On appeal to the Supreme Court of Canada by the claimant, the amount of compensation awarded by the Exchequer Court was in-creasedby the sum of $100., the majority of the court being of opinion that damages had not been allowed fur the depreciation resulting from the absence of a crossing.
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.