VOL. III.] EXCHEQUER COURT REPORTS. 79 JOHN A. BROWN AND HIRAM BEL- 1892 KNAP s SUPPLIANTS ÿ Sep. 1. AND HER MAJESTY THE QUEEN.... RESPONDENT. Construction of a Government fish-way in a private mill-dam—Damage to mill owner—Public work-50-51 Vic. c. 16, s. 16 (c). The suppliants complained that the Crown, by its servants, so negligently and unskilfully constructed a fish-way in a mill-dam used to secure a head of water for running certain mills owned by them, that such mills and premises were injuriously affected and greatly depreciated in value. Held,—That the fish-way was not a public work within the meaning of 50-51 Vic. c. 16, B. 16 (c), and that the Crown was not liable. PETITION of right for damages arising from the construction of a Government fish-way in a private mill-dam.. The facts of the case appear in the judgment. May 31st, 1892. Ritchie, (W.B.A.) for respondent : There was no cause of action in 1885, and suppliants cannot recover under the law as it stands to-day. The fish-way is not a public work within the meaning of 50-51 Vic. c. 16, s. 16 (c). The Dominion Government, it is true, bears a proportion of the expenditure on the fish-way, but that does not make it a public work. Public works are such things as are defined by statute, and must be works owned and operated by the Government. Thesè elements are not present in the case of this fish-way. Ritchie, (JJ.) for suppliants : The fish-way has all the elements of a public work. The very constitution of . the Department of Marine and Fisheries gives it authority and control over fish-ways. The legislative authority for their, construction is founded * on their
80 EXCHEQUER COURT REPORTS. [VOL. III. 1892 being for the benefit of the public and for the public BROWN use. There is clear jurisdiction in the court to THE entertain this action. There is only a dictum of the QUEEN. Supreme Court of Canada that The Exchequer Court H01160111 Act is not retroactive in giving a remedy in cases like for Judgment. this. [Martin v. The Queen (1).] There was a liability enforceable under 33 Vic. c. 23, before the Board of Official Arbitrators. BURBIDGE, J. now (September 1st, 1892) delivered judgment. The suppliants complain that the Crown, by its servants, so negligently and unskilfully constructed a fish-way in a mill-dam used to secure a head of water for running certain mills owned by them, that such mills and premises were injuriously affected and greatly depreciated in value. Immediately upon the case being opened it was objected that the court had no jurisdiction,—on the ground, among others, that neither the dam nor the fish-way was a public work of Canada (50-51 Vic. c. 16, s. 16 (c) ; and I thought that the objection should . prevail. As there were, however, a number of witnesses in attendance from long distances the parties agreed that the question should be reserved and the hearing of the case continued. For the negligence of its officer in the construction, or in directing the construction, of a fish-way in the dam, it was admitted that the Crown was not liable unless such liability was founded on a statute ; and that the suppliants could not succeed unless the fish-way in question was held to be a public work within the meaning of 50-51 Vic. c. 16, s. 16 (c). On that point I adhere to the view that I expressed at the trial. The case is, I think, very clear. The fish-way (1) 20 Can. S. C. R. 240.
VOL. IIT.] EXCHEQUER COURT REPORTS. 8T was not a public work within the meaning of the 1892 statute. Whatever right of action the suppliants Bwxo K might have had against the persons of whose negli- gence they complain, they have none against the QUERN. Crown, because there is no Act of Parliament creating xi„isons any liability to answer for such negligence. dud ment. A number of other objections were raised and dis- cussed ; but as the one I have mentioned disposes of the case it is unnecessary to refer to them. Judgment for the respondent with costs. Solicitor for suppliants : J. A. Chisholm. Solicitor for respondent : H. E. Gillis. 6
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.