1889 v. THE QUEEN. This I think she was entitled to, and without it she has no KEARNEY Convenient access to the shore. It has prevented her, as she alleges, from selling ballast and sea manure, and from gathering drift wood, as had previously been her custom to do, and from which in some years at least she derived a profit, according to her own estimate, of about $125. For such damage I shall allow her $500.” The total amount of compensation awarded the appellant by the Exchequer Court was $2,012 and interest. Alleging that the compensation was inadequate, the appellant appealed to the Supreme Court of Canada. T. J. Wallace appeared for the appellant. The judgment of the majority of the court was pronounced by PATTERSON J.-This is an appeal from an award of compensation by the learned judge of the Exchequer Court for the value of land expropriated from the property of Mrs. Kearney, the appellant, for the use of the Dartmouth branch of the Intercolonial Railway and for injury to the remainder of the property. Mrs. Kearney owns some eighty acres of land near the town of Dartmouth, bounded on one side by the water of Halifax harbour. The land is described as rising rather steeply from the shore. It is mostly woodland, a few acres only being cleared and cultivated. Mrs. Kearney made some profit out of the shore by selling stones for ballast and seaweed for manure, and by collecting driftwood for fuel. There is on the property a sandy beach which is said to be the only place in the vicinity suitable for a bathing resort, the next similar place being Cow Bay, twelve miles farther down the harbour. A bathing establishment was set up at the place, which is called Sandy Bay, by a company who paid Mrs. Kearney a rental of $50 a year, but the venture was not a financial success. 1889 v. Patterson J. The railway runs along the shore, and, owing to the irregular character of the ground it passes everywhere either KEARNEY upon an embankment or through a cutting, thus practically THE QUEEN. cutting off access to the shore from Mrs. Kearney's remaining land, and destroying the traffic in ballast and seaweed and the carrying of driftwood. It forms a walk for the public, and so destroys the privacy of the bathing place, which is overlooked from the embankment, and it is urged that it interferes with a project entertained by Mrs. Kearney of offering her property for sale in building lots. These are the general grounds on which compensation, over and above the value of the land taken, is sought. The amount to be awarded must be, as in the bulk of such cases, to a great extent speculative, and arrived at after weighing against each other the estimates given in evidence, which are apt to differ pretty widely. In this court we have not the aid in comparing one witness with another and forming opinions as to their good faith and judgment, which may often be derived from seeing them and hearing their evidence given, nor do we inspect the locality, which may be said to be in many cases essential to a correct appreciation of the matters in controversy. Those advantages are usually enjoyed by the tribunal to which the legislature has committed the duty of adjudging in the first instance the compensation appropriate to the particular case, and, as I have before had occasion to remark, an appellate court cannot reasonably be expected to interfere except in cases where the award appears to have proceeded upon some erroneous principle or to have been affected by some oversight or misunderstanding of facts. It happens in the present case that by reason of circumstances which I suppose were exceptional, the witnesses were not examined in the presence of the learned judge of the Exchequer Court, and that he did not inspect the premises in connection with the investigation. We may therefore feel more free to form opinions that, even on questions 1889 บ. of mere value, may not entirely coincide with his, than we KEARNEY should have felt if his means of forming a judgment had been better than those which we possess, without relieving the appellant from the burden of shewing that the judgment which he attacks should be modified or varied. THE QUEEN. Patterson J. We are indebted to the learned judge for a distinct statement of the grounds on which he proceeded. He allowed for the land taken and the injury from all causes except the cutting off of access to the beach, $1,512, and he arrived at that figure by computing $1,200 an acre for the quantity of land actually expropriated. Mrs. Kearney had once spoken of $1,200 as what she valued that land at, and the judge considered that that was about its value. She had some years before sold some land to the provincial government for the use of the lunatic asylum which adjoined her property at $1,200 an acre and, without asserting any strict logical connection between that price and the compensation now in question, the learned judge adopted $1,200 an acre as sufficient compensation for the land and the damages resulting from the work, including the injury to the bathing ground, but not including the injury from the severance of the shore from the rest of the 80 acres. The learned judge had the impression that the $1,200 an acre was more than the worth of the 32 acres sold to the asylum, that is a matter which we need not discuss, nor need we inquire into the analogy between the sale of that parcel remote from the water and the expropriation of the 50 feet belt along the stony beach. The estimate does not proceed upon any such assumed analogy, and whether we may or may not be inclined to adopt the same criterion of value, it might be difficult in a matter depending so much on speculative ideas to pronounce any other suggested criterion more certain or less open to criticism. I should leave that estimate undisturbed; but I do not regard the question of the severance in the same light as the learned judge. He considered that the appellant was entitled to a crossing of the railway, and therefore awarded $500 for the want of a crossing for the time past, taking no account of the future. I ought to have said that the severance for which damages were not awarded was such severance only as in the opinion of the learned judge would be cured by a crossing, which he assumed would give access to the shore for ballast, seaweed and driftwood, and also afford a way to the bathing ground. The bathing ground had suffered from another cause for which the Dominion Government was not responsible, viz., the sewer from the lunatic asylum. Dr. Weeks clearly shewed that circumstance. Dr. Weeks said, in his evidence: Mr. Dickson, under the instructions of the local government, built an expensive culvert that destroyed the property largely as a bathing place. The debris from the lunatic asylum, in the next property to Mrs. Kearney's, helped to destroy the most lovely place for bathing purposes that, so far as I know, is hereabouts. Question. To what extent did Dickson's proceedings, as alluded to before, injure or interfere with the cove or bathing place? Answer.-Dickson, representing the local government, built a drain so close to the line of Mrs. Kearney's property that it rendered it disgusting to many people at times, particularly when the tide was rising, so that many who had bathed previously bathed there no more. Many persons I know who used to bathe-and it was a source of remuneration to her-discontinued. To what extent this consideration affected the award we do not know. I think the learned judge failed in two respects, one in regard to the facts and one in regard to the law, to fully appreciate the question of the severance. There is evidence, on which I should rely, that the character of the embankment and cutting and the nature of the ground on each side would forbid the making of a reasonably practicable crossing. In other words, the consequences of the severance would remain notwithstanding all that under the circumstances could be done towards making a crossing. That is the matter of fact. Then, in law, as I understand the law to be, there is no obligation to construct a crossing over a Government railway apart from contract, and the evidence 1889 KEARNEY V. THE QUEEN. Patterson J. 1889 KEARNEY v. THE QUEEN. Patter on J. (bearing in this on both the fact and the law) is that there was no idea of a crossing mooted or entertained by either party. I shall not repeat what I have said in other cases on the subject of farm crossings and the absence of any provision respecting the construction of them in the Government Railways Act (a) (b). The facts of this case illustrate the greater wisdom of leaving parties to stipulate for crossings or to be compensated for the severance of their land, rather than imposing a duty to construct a crossing whenever land is divided by a railway. In this case the chief injury is done by the severance. It touches all the branches of injury which the appellant advances, the bathing ground, the ballast, the manure and the firewood, and also the vision, which the learned judge by no means ignores the force of though he is not insensible to the touches of fancy by which it is adorned, of a colony of marine villas. This severance should be compensated once for all, and the award should therefore be increased. The allowance of $500 for four years, or $125 a year, represents a capital sum of say $2,100, and it is not computed upon all the subjects affected by the severance. On the other hand there is evidence, no more speculative than much of that on which the appellant relies, that the effect of the railway may be to increase, or at all events not to diminish the marketable value of the property as a whole. I think it will be reasonable to compute about $2,500 in place of the item of $500, making the whole award $4,000, to bear interest from the 13th of August, 1884. The appeal is allowed with costs. GWYNNE J. (dissenting).—When a railway is constructed across a man's property and severs it into parts in such a manner as to make a crossing necessary to the full enjoyment of the severed parts, he cannot, in my opinion. against his will, be deprived of a suitable crossing, the char (a) Vézina v. The Queen, 17 Can. S.C.R. 1. |