HAWTHORN CORPORATION v. Kannuluik. with an offensive mixture of sewage and slime.

After several ineffectual complaints Mr. Kannuluik brought this action against the municipality of Hawthorn. The case was tried by Mr. Justice Williams without a jury. It occupied no less than seven days. The learned Judge found in favour of the plaintiff, and assessed the damages at 2501.

On appeal, the Full Court affirmed the judgment of Mr. Justice Williams, but not altogether upon the same grounds. The learned Judge who tried the case relied principally, though not entirely, on faulty construction in 1889. In the Full Court, where the leading judgment was given by Mr. Justice Holroyd, the decision turned rather on the subsequent acts and conduct of the municipal authorities.

Their Lordships agree with Mr. Justice Holroyd. The case seems to be a very simple one. The only question is, Have the municipal authorities acted negligently so as to do unnecessary damage to Mr. Kannuluik?

As for negligence, it is difficult to imagine a more conspicuous example of negligence than is shewn by repeatedly pouring offensive stuff into a receptacle or channel proved over and over again to be insufficient to hold it and pass it on. The municipal authorities might just as well pour this stuff directly on the plaintiff's land. The damage to the plaintiff cannot be denied. It is nothing to the purpose, even if it be true, to say that the property in the plaintiff's hands and in the hands of his predecessors in title was often flooded before the municipal authorities turned the watercourse into a public drain. Nor is it enough to prove that the work done in 1889 was sufficient at the time. It is insufficient now. It has been insufficient for some time past. The mischief grows as building increases, as new roads are made, new channels formed, and more and more of the surface becomes impervious to rainfall.

It is not suggested that there is any real difficulty in remedying the mischief. Indeed, if the evidence of the surveyors called on behalf of the plaintiff may be trusted, the matter can be set right at a very trifling

cost.

VOL. 75.-P.C.

Their Lordships will humbly advise his Majesty that the appeal ought to be dismissed.

The appellants will pay the costs of the appeal.

Solicitors-Roy & Cartwright, for appellants;
Lee, Ockerby & Everington, for respondent.
[Reported by J. Eyre Thompson, Esq.,
Barrister-at-Law.

1905. July 7. Nov. 14.

Canada Street Railway Contract between City and Railway-Percentage of Earnings Due to City-Outside Municipalities-Civil Code of Lower Canada, art. 1,018.

By article 1,018 of the Civil Code of Lower Canada, "All the clauses of a congiving to each the meaning derived from tract are interpreted the one by the other,

the entire Act."

By a contract between a railway company and the City of Montreal the company of the gross earnings "of its said railwas to pay to the city a certain percentage way"; it was to establish lines of railway mentioned, and in such other streets as "in the city," in the streets thereafter should be determined by the city council; in the case of annexation of outside municipalities the system was to be extended through such annexed territory. It was also provided that the company was every quarter to render to the city a true and just account.. of the whole of their gross earnings" and to allow inspection of the books and accounts by a person appointed by the city council. municipalities had independent powers, and with them in case of extension separate arrangements had to be made:-Held, that the city was only entitled to a percentage of earnings within the city, and that its

66

Outside

* Coram, Lord Davey, Lord James of Hereford, Lord Robertson, and Sir Andrew Scoble. C

MONTREAL STREET RAILWAY v. CITY OF MONTREAL. general power of inspection was only given to enable a proper adjustment of earnings.

Appeal by special leave from a decree of the Supreme Court of Canada dated March 25, 1904.

The question was whether on the construction of a contract between the appellants and the respondents the latter were entitled to a percentage of the gross earnings of the whole of the appellants' railway system or only of such part thereof as was within the limits of the city. The facts are stated in the judgment of the Board. The case below is reported 34 Can. S.C.R. 459.

to furnish a similar service as is furnished to the City." No such annexation, their Lordships are informed, has taken place, but the insertion of this provision is a clear indication that the city considered that the territories of outside municipalities were not included in the scope of the contract.

Looking at the contract as a whole, it appears to their Lordships that the lines of railway contemplated by it were, as defined in article 1, "lines of railway for the conveyance of passengers in the City," and that the expressions "the said railway," "the said railway tracks," and "its said railway," wherever they occur in the contract, must be taken to refer to the lines within the limits of the city. The percentages, therefore, claimable by the city are only upon the gross earnings arising from the whole operation of the lines within those limits.

MONTREAL STREET RAILWAY v. CITY OF MONTREAL. The law applicable to the construction of this contract is thus expressed in article 1,018 of the Civil Code of Lower Canada: "All the clauses of a contract are interpreted the one by the other, giving to each the meaning derived from the entire Act." Regarded in this light, the contract is for the establishment and operation of an electric passenger railway in the city of Montreal. Article 1 provides that "the Montreal Street Railway Company shall establish and operate, subject to the conditions hereinafter mentioned, lines of railway for the conveyance of passengers in the City by means of cars propelled by electricity, in the streets hereinafter mentioned, and in all other streets which may hereafter be determined by the Council of the City of Montreal." Article 12 provides that "the tracé of routes in the different streets of the City, as well as the establishment and transfer connections, shall be made and shall remain under the control of the City Council. Until further orders the cars shall run in the streets mentioned in the schedule of routes herein-below indicated." This schedule is given in article 46, and enumerates nineteen routes, all of which are in the city, and many of which purport to run "from the eastern City limits" to "the western limits of the City of Montreal." As regards the privileges conferred on the company with regard to the use of electric power in the streets, the right to open the streets, and so forth, the city could only deal with the streets within its jurisdiction; nor had it power to regulate times and fares beyond its own limits. Every outside municipality, into whose area the company might desire to extend its operations, had independent powers in these respects, and with them the company to make separate arrangements. Indeed, the only reference in the contract to areas outside the limits of the city is contained in article 44, which provides that "in the case of annexation by the City of any of the outside municipalities, the Company shall be obliged, within three months after being ordered by the Council, to extend their system through that new annexed portion of territory not already provided with electric cars, and

had

66

It is true, as pointed out by some of the learned Judges in the Courts below, that article 37 of the contract requires the company to "render quarterly a true and just account and statement in writing of the whole of their gross earnings, and allow proper inspection of all books, accounts, returns, and vouchers for the purpose of checking and verifying such accounts by the City Treasurer, City Auditor, or other accountant appointed by the City Council"; and it was held by Mr. Justice Girouard that this clause was clearly intended to give an indisputable effect to clause 36, and to permit the City to collect without trouble or question its proportion of the gross earnings of the railway." But their Lordships are of opinion that clauses 36 and 37 must be read together, and, when so read, lead to no such conclusion. Some of the earnings of the company arose from traffic which began and ended within the limits of the city; but another, and possibly a greater, was derived from traffic which originated in the city and terminated in the suburbs, or originated in the suburbs and terminated in the city. For all traffic attributable to the operation of the railway in the city, wherever it originated or terminated, the company was accountable. The accounts of the whole earnings had therefore to be submitted and

1905.

MONTREAL STREET RAILWAY v. CITY OF MONTREAL. checked, in order that the proper percentage payable to the city might be ascertained and verified.

A second question discussed in the local Courts was as to the method on which the accounts between the city and the company had been adjusted. From the nature of the case, it was impossible to separate the earnings inside from those outside the city with anything approaching mathematical accuracy; and accordingly the Judge of first instance, by an order of November 19, 1898, very properly referred it to two experts, one of whom was the treasurer of the city of Montreal and the other the comptroller of the Canadian-Pacific Railway Co., to examine into the method of calculation to be adopted in order to secure a just apportionment. These gentlemen reported that, "after considering divers other methods by which such apportionment might be arrived at," they were of opinion that the system now pursued by the Montreal Street Railway Company is the most practical one and in its operation just, but that if any change were to be made it would be to increase the earnings per car mile in favour of the outside districts." The learned Judge adopted their report, and it was confirmed by the judgment of the majority of the Court of King's Bench. Their Lordships see no reason to dissent from this conclusion.

Their Lordships will humbly advise his Majesty that this appeal ought to be allowed, and the judgment of the Supreme Court reversed with costs, and that of the Court of King's Bench confirmed. The respondents must pay the costs of the appeal.

Solicitors-Paines, Blyth & Huxtable, for
appellants; Blake & Redden, for respondents.

[Reported by J. Eyre Thompson, Esq.,
Barrister-at-Law.

Nov. 28.)

} GRIEVE v. TASKER.*

Practice-Special Leave to AppealPetition for Leave to Appeal from Judgments Out of Time-Leave Refused.

Where an appellant is out of time for appealing from an order he cannot bring himself within time by a fresh application for the same purpose to the Court below, the refusal of which is within time.

He

The appellant obtained leave to appeal from an order made in March, 1905. then petitioned for leave to appeal from orders of June, 1899, and August, 1904, in respect of which the time for appeal had expired, on the ground that they were necessary to the conduct of his appeal from the order of March, 1905. All three orders were substantially the same. Appeal from order of March, 1905, dismissed, and appellant's petition refused.

These were two petitions, the first being that of the respondent to dismiss the appellant's appeal from an order of the Supreme Court of Newfoundland on the ground of its being out of time, without a hearing on the merits. The second petition was by the appellant, who had obtained leave to appeal from an order of March 20, 1905, for special leave to appeal also from orders of June 7, 1899, and August 20, 1904. The ground of appeal alleged was that these orders were as necessary to the hearing of the appeal from the order of March 20, 1905, as that order itself. The circumstances are sufficiently stated in the judgment.

Sir R. T. Reid, K.C., and J. W. Gordon, for the first (respondent's) petition.

Asquith, K.C., and Kerly, for the second (appellant's) petition.

LORD DAVEY delivered the judgment of their Lordships:

Their Lordships are of opinion that the appeal which has been presented to his' Majesty in Council is incompetent, and that the first petition (the petition of the respondent) ought to be granted, and

*Coram, Lord Davey, Sir Ford North, Sir Andrew Scoble, and Sir Arthur Wilson.