200 EXCHEQUER COURT REPORTS. LVW . IX. BETWEEN 190I THE KING ON THE INFORMATION May I3. OF THE ATTORNEY—GENERAL FOR PLAINTIFF ; THE DOMINION OF CANADA. AND KILO-OUR SHIVES AND JOHN H. MOORES DEFENDANTS. Expropriation—Public work—Damages—Reference back to Referees under Rule 19. Upon an appeal from the report of special referees, on the ground that the amount of damages reported by them was excessive, and it appearing to the court that the matter was one in which it was expedient that there should be a reference back to the referees under the 19th rule of court of the 12th December, 1889, an order was made therefor, in which the following directions were given to the referees : 1, To find what in September, 1902, was the value of the wharf, land and premises taken by the Crown as mentioned in the information. In finding that value the referees were directed to exclude from their consideration the value of the same to the Crown, in the way of saving expense in the construction of the public work, or otherwise, and to determine its value at that time to the owner, or any other person, for any purpose to which in the ordinary course of events it could be put. In finding that value the referees were also directed to take into account, the condition, situation, and prospects of the property taken ; but that such value should be one that the property had at the time it was taken, and not one that the referees might think that it might have at some future time by reason of its condition, situation or prospects. 2. With regard to the remainder of the property, of which that taken formed part, the referees were directed to find the amount of damages, if any, that had been occasioned to the portion not expropriated by the taking of the part mentioned, and the construction of the public work. The referees were further directed that if the . construction of the public work benefited and increased the value of then portion of the property not expropriated, that was to be taken into account and set off against the damages occasioned by the severance.
VOL. IX.] EXCHEQUER COURT REPORTS. 201 THESE were two motions, made under the provisions of the nineteenth rule of court of 12th December, THE v K . ING 1899, one by way of appeal from the report of special SnnrEs. referees appointed herein, the other to confirm such Statement of Facts. report. — • May 26th, 1903. Upon motion of counsel for suppliants, counsel for respondent consenting, an order. was made referring this case to Messieurs George McLeod, William H. Thorne and George McKean, all of St. .John, N.B., for the purpose of enquiry and report as special referees under the rules of this court. January 6th, 1904. The special referees now made their report, finding that " the defendant Skives is entitled to be allowed thirty-five thousand dollars as conpensation in full by reason of the expropriation by the Crown of his wharf, wharf property and land, and for all damages occasioned to other lauds and to his access as riparian proprietor to the river, or in any other way occasioned by the taking of said .wharf, lands and property." February 27th, 1904. The motions came on for hearing at Ottawa. H. F. McClatchey, for the motion by way of appeal from the referees' report, argued that the valuation placed upon the property by the referees was excessive, and not warranted by the evidence. It is the market value of the property at the time it was taken, not its 'value at a forced sale, but at a fair public sale, that should govern the case. (Cites 10 Am. 8r En g. Ency. of Law (1) ; Stebbing v. Metropolitan Board of Works ; (2) Paint v. The Queen '(3). The evidence shows that (1) 2nd ed. pp. 1151 et seq. (3) 2 Ex. h. R. 149. (2) L. R. 6 Q. B. 37. •
202 EXCHEQUER COURT REPORTS. [VOL. IX 1904 although the town of Campbellton is a growing one, THE KING the revenue of this property is not increasing but V. SHIYES. remains stationary. The prospective capabilities of Argument the property were not evident at the time of the ex-of Counsel. propriation so far as milling purposes are concerned ; and the wharf could not be used by steamers but only by sailing vessels. The suppliant Shives could not lay a large vessel at this wharf without trespassing upon the government property. Yet ,,he referees considered the use of the wharf for ships as a feature in their valuation. The whole carrying trade is now going to be done by steamers, sailing vessels are going out of use. The property is not enhanced in value by reason of any prospective use of the wharf for sailing vessels. The suppliants have no title to the wharf. It is on government property. They have not had undisputed possession of it for sixty years. (Cites Humphreys v..' Helmes (1) ; Eagles v. Merritt (2) ; Brown y. Reed (3). W. Pugsley, K. C., contra, contended that there had been user by the suppliant Shives and his predecessors of the Crown property for wharf purposes for over sixty years. At any rate the title in the soil would not be in the Crown in right of the Dominion, but in right of the Province of New Brunswick ; the locus in qe,o was not a public harbour within the meaning of The British North America Act. Moreover, the Ferguson estate was paid a rental for this wharf by the Interco-lonial Railway. The referees find that it has been in the rninterrupted possession of the suppliant and his. predecessors for over sixty years. The suppliant would be intitled to " side-wharfage " from the Government, although he would have to pay for it. The Government would have to depend upon (1) 5 Allen N.B. 59. (3) 2 Pugs. 206. (2) 2 Allen N. B. 550.
VOL. IX.] EXCHEQUER COURT REPORTS. 203 Mr. Shives for the same privilege ; and, besides, in 1904 order to get access to the Government property you THE XthG have to go over that of Mr. Shives. Sx v i s. Mr. Pugsley also moved for judgment on. the refe- Reasons for Judgment. rees report. THE JUDGE OF. THE EXCHEQUER COURT now (May 13th 1904) delivered judgment. This matter now comes before the court on motion on behalf of the defendants for judgment upon the report of the special referees appointed herein, • and by way of appeal on behalf of the plaintiff against that report. By their report the special referees have expressed their opinion that the defendants are entitled to be allowed thirty-five thousand dollars, as compensation in full by reason of the expropriation by the Crown of a certain Wharf, wharf property and land, belonging to the defendant Kilgour Shives, and subject to a mortgage in favour of the other defendant John H. Moores, and for all damages occasioned to other lands of the defendant Shives, and to his access as riparian pro-priet t or r to the River R es tigouéhe, or in any other Wap occasioned by the taking of said Wharf, lands and pro= petty. By the nineteenth rifle 6f court, of the 12th of De-cember, 1899, it is provided that on an appeal from the report of referees the coùrt may confirm, vary or reverse the findings of the report and direct judgment to be ehterëd accordingly, or refer the matter back to the referees for further consideration and report. In this case it seems to me expedient to adopt thé coursé last f ientiOire'd. The proceedings in this case and the report Will theeéfôfe b'é referr'ed: baok to thé .ëp`écial referees for further éoit ideratien and report, that' the value of the p'ropert jr taken and the daimâges mentioned >riay b'é
204 EXCHEQUER COURT REPORTS. [VOL. IX. 1904 separately assessed, and that answers may be given to TICE KING the following questions : SHIITES. 1. What in September, 1902, was the value of the Realm for wharf, land and premises taken by the Crown as men-Judgment. tioned in the information herein ? 2. In finding that value the special referees will exclude from their consideration the value of the same to the Crown, in the way of saving expense in the construction of the public work or otherwise, and determine its value at that time to the owner, or any other person, for any purpose to which in the ordinary course of events it could be put. 3. In finding that value the special referees should take into account the condition, situation and prospects of the property taken, but such value should be one that the property had at the time it was taken and not one that the special referees may think that it might have at some future time, by reason of its condition, situation or prospects. 4. Then with regard to the remainder of the property, of which that taken formed part, what is the amount of damages, if any, that has been occasioned to the portion not expropriated by the taking of the part mentioned, and the construction of the public work ? 5. If the construction of the public work benefits and increases the value of the portion of the property not expropriated, that is to be taken into account and set off against the damages occasioned by the severance. Order accordingly. (*) * REPORTER'S NOTE —Conformably tion of any value such property to this order the special referees might have to the Crown in the way filed a supplementary report, in of saving expense in the construe-which they declared that they tion of the public work or other-found that the value of the wharf, wise, and basing such valuation land and premises at the time of the wholly on the value of the property expropriation was thirty-four thou- at the time of the expropriation to sand five hundred dollars, excluding the owner, or any other person, for from such valuation the considers- any purpose to which in the ordi'
VOL. IX.] EXCHEQUER COURT REPORTS. 205 nary course of events it could be OF THE EXCHEQUER COURT. 1904 put, also excluding from such valua- The following memorandum of judg- tion any consideration of future ruent being filed with the Regis_ Tai KING v. value the property might have in trar :— SuWVES. the estimation of the special referees "'There will be a declaration that by reason of its condition, situation the property mentioned in the infor- Reasons for Judgment. or prospects. mation is vested in the Crown." The special referees also found " With reference to the amount that the damages to the remaining of compensation, there will be judg-portion of the suppliant Shives' ment for the defendants for thirty-property arising from the severance five thousand dollars in accordance and the construction of the public with the reports of the special refe-work, amounted to five hundred rees filed herein. Of these defen-dollars. They also found that the dants one is mortgagor and the construction of the public work did other mortgagee of the property in not benefit or increase the value of question, The amount of the com-the portion of the property not pensation money may be distributed expropriated, and, therefore, there in accordance with the interests of • was nothing to set off against the the parties entitled to the property damages occasionedby the severance. in question, or the whole amount On the 8th June, 1904, counsel may be paid to the defendant Kil-for the respective parties filed an gour Shives, the mortgagor, upon agreement that the case might be dis- his obtaining and delivering to the posed of by the court on the return Crown a satisfactory acquittance of the supplementary report, with- fro .n any person having any interest out further argument. • • in the property." On the 9th June, 1904, the supple- " The defendants are entitled to mentary report of the special refe- their costs." rees was confirmed by the NUDGE Judgment accordingly. •
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.