ATT.-GEN. FOR BRITISH COLUMBIA v. CANADIAN-PACIFIC RAILWAY. SIR ARTHUR WILSON delivered judgment of their Lordships: the This is an appeal from a judgment dated April 15, 1905, of the Full Court of the Supreme Court of British Columbia, which affirmed a previous judgment of a single Judge of the same Court. The suit out of which the appeal arises is of the nature of an information by the Attorney-General of British Columbia, on the relation of the city of Vancouver, against the Canadian-Pacific Railway Co. The statement of claim alleged that the public was entitled to certain rights of way over the foreshore of the sea in the city of Vancouver, and that the defendants had so constructed their railway and works upon the foreshore as to obstruct those public rights of way; and it asked for a declaration of the rights of the public and for consequential relief. The defendant company denied the existence of the alleged public rights of way. They justified what they had done by virtue of their statutory powers; and they raised another defence based upon a by-law of the city of Vancouver. This last defence their Lordships think it unnecessary to notice further. The facts necessary for the decision of the present case may be very briefly stated. In 1871 British Columbia entered the Canadian Confederation, the construction of an intercolonial railway being one of the terms of the union. The present railway company was incorporated in 1881 by the Canadian-Pacific Railway Act of the Dominion Parliament (44 Vict. c. 1) for the purpose of constructing and working the intercolonial railway whose name is embodied in the title to the Act. The railway was first constructed as far as Port Moody, but was afterwards extended some miles further west to the city of Vancouver. The arrangement for this extension appears to have been entered into in 1885. The city of Vancouver lies along the southern bank of an inlet of the sea known as Burrard's Inlet. It was incorporated as a city in 1886; but some years before that date, apparently in 1870, a portion of what is now the city was laid out (on paper at all events) as the old Granville Townsite. The plans of that townsite, or intended site, shewed blocks of land above, on, and below the foreshore. They shewed three streetsCarrall Street, Abbott Street, and Cambie Street-parallel to one another, running from south to north-that is to say, from the landward to the coast-line. The alleged public rights of way, the interruption of which is now complained of, were in continuation of those streets, across the foreshore down to low-water mark. The learned Judge who tried the case found that the rights of way contended for did exist both at the time when British Columbia joined the Confederation and at the time when the railway company by the construction of its works interrupted the free access to the sea. The learned Judges of the Full Court did not dissent from this finding, rightly addressing their minds to the more important general questions arising in the case. Their Lordships propose to follow a similar course. Grave difficulties were pointed out in the course of the argument in the way of upholding the validity of the rights of way. But as the appeal can be disposed of upon broader grounds their Lordships do not think it necessary to enter upon this minor enquiry; and they assume, for the purpose of this judgment, that the public rights of way existed as found. That those rights of way have been interrupted is not open to question, for the railway and its adjuncts have been carried along the coast both above and below low-water mark. Prior to the time when British Columbia entered the Confederation in 1871, the foreshore in question was Crown property of the Colony, now the Province, of British Columbia. The railway company justifies what it has done under section 18 (a) of the Act of the Dominion Parliament which incorporated it (44 Vict. c. 1), which says: "The Company shall have the right to take, use and hold the beach and land below high-water mark, in any stream, lake, navigable water, gulf or sea, in so far as the same shall be vested in the Crown and shall not be required by the Crown, to such extent as shall be required by the ATT.-GEN. FOR BRITISH COLUMBIA v. CANADIAN-PACIFIC RAILWAY. Company for its railway and other works, and as shall be exhibited by a map or plan thereof deposited in the office of the Minister of Railways." The map or plan required by the last words of the section was duly deposited. The right of the Dominion Parliament so to legislate with respect to provincial Crown lands situated as these are, was based in argument upon two distinct grounds. The first ground was this: Section 108 with the third schedule of the British North America Act, 1867 (Imperial Act 30 & 31 Vict. c. 3), includes public harbours amongst the property in each province which is to be the property of Canada. This certainly empowers the Dominion Parliament to legislate for any land which forms part of a public harbour. In a case heard by this Board-Att.Gen. for Canada v. Atts.-Gen. for Ontario, Quebec, and Nova Scotia [1898]-it was laid down that "It does not follow that, because the foreshore on the margin of a harbour is Crown property, it necessarily forms part of the harbour. It may or may not do so, according to circumstances. If, for example, it had actually been used for harbour purposes, such as anchoring ships or landing goods, it would, no doubt, form part of the harbour; but there are other cases in which, in their Lordships' opinion, it is equally clear that it did not form part of it." In accordance with that ruling the question whether the foreshore at the place in question formed part of the harbour was in the present case tried as a question of fact, and evidence was given bearing upon it directed to shew that before 1871, when British Columbia joined the Dominion, the foreshore at the point to which the action relates was used for harbour purposes, such as the landing of goods and the like. That evidence was somewhat scanty, but it was perhaps as good as could reasonably be expected with respect to a time so far back, and a time when the harbour was in so early a stage of its commercial development. The evidence satisfied the learned trial Judge, (1) 67 L. J. P.C. 90, 93; [1898] A.C. 700, 712. and the Full Court agreed with him. Their Lordships see no reason to dissent from the conclusion thus arrived at. And on this ground, if there were no other, the power of the Dominion Parliament to legislate for this foreshore would be clearly established. The second contention in support of the right of the Dominion Parliament to legislate for the foreshore in question is rested upon section 91, read with section 92 of the British North America Act, which secures to the Dominion Parliament exclusive legislative authority in respect of lines of steam or other ships, railways, canals, telegraphs, and other works and undertakings connecting any province with any other or others of the provinces, or extending beyond the limits of the province, a description which clearly applies to the Canadian-Pacific Railway. It was argued for the appellant that these enactments ought not to be so construed as to enable the Dominion Parliament to dispose of provincial Crown lands for the purposes mentioned. But their Lordships cannot concur in that argument. In Canadian-Pacific Railway v. Notre Dame de Bonsecours Corporation [1899] 2-a case relating to the same company as the present-the right to legislate for the railway in all the provinces through which it passes was fully recognised. In Toronto Corporation v. Bell Telephone Co. of Canada [1904],3 which related to a telephone company whose operations were not limited to one province, and which depended on the same sections, this Board gave full effect to legislation of the Dominion Parliament over the streets of Toronto which are vested in the city corporation. To construe the sections now in such a manner as to exclude the power of Parliament over provincial Crown lands would, in their Lordships' opinion, be inconsistent with the terms of the sections which they have to construe, with the whole scope and purpose of the legislation, and with the principle acted upon in the previous decisions of this Board. Their Lordships think, therefore, that the Dominion Parliament had full power, if it thought fit, to (2) 68 L. J. P.C. 54; [1899] A.C. 367. ATT. GEN. FOR BRITISH COLUMBIA v. CANADIAN-PACIFIC RAILWAY. authorise the use of provincial Crown lands by the company for the purposes of this railway. It was contended, however, for the appellant that, assuming the competence of the Dominion Parliament to legislate with respect to provincial Crown lands, such as those now in question, it has not in fact done so, for it was said that section 18 (a) of the Canadian-Pacific Railway Act, when it authorised the company to take the foreshore of the sea "in so far as the same shall be vested in the Crown," should be construed as limited to Dominion Crown property. The argument was rested mainly upon the words in the same section, "in so far as the same shall not be required by the Crown," and upon the words at the end of the section requiring the deposit of a map or plan in the office of the Minister of Railways. It was argued that no protection is here provided for provincial interests, and that therefore the section should not be held to apply to provincial lands. But with regard to the exception of lands required by the Crown, their Lordships think that they apply to provincial requirements no less than to those of the Dominion. The final words of the section are mere matters of procedure; and in prescribing the procedure the Legislature must be taken to have assumed that all necessary communications between the Dominion Governments and the Provin cial Governments would always take place. This argument therefore fails, in their Lordships' opinion. It was next contended that section 18 (a) of the Canadian-Pacific Railway Act, assuming it to apply to such provincial Crown lands as those in question, did not authorise the closing of public high what the respondent company has done. It is unnecessary to enquire whether the provisions referred to would or would not apply to such rights of way as those now in question. It is enough to say that the language of the Canadian-Pacific Railway Act must prevail over that of the Consolidated Railway Act, which applies only so far as it is not inconsistent with the special Act. And it is clear, in their Lordships' opinion, that the power given to the company to appropriate the foreshore for the purposes of their railway of necessity includes the right to obstruct any rights of passage previously existing across that foreshore. Their Lordships will humbly advise his Majesty that this appeal should be dismissed. The appellant will pay the costs. Solicitors-Gard, Rook & Winterbotham, for 1906. Feb. 6, 9. March 14. MONTREAL CITY v. CANTIN AND OTHERS. - * Canada Municipality Assessment Roll-Petition for Annulment of Assessment-Prescription-Interruption of Prescription-Charter of the City of Montreal (52 Vict. c. 79, Quebec), ss. 120, 144, 231, and 241. By a special roll of the appellant city half the costs of street improvements was, in February, 1895, assessed on the proprietors of property on either side of the street. In the following August a number of proprietors filed a petition that the roll should be set aside on the ground of irregularity. The city did not answer or plead to the petition till October, 1899. Judgment was given for the city in June, 1900, and affirmed on appeal in June, 1901. In September, *Coram, Lord Macnaghten, Lord Davey, Lord Robertson, Lord Atkinson, and Sir Arthur Wilson. F Held, that the amount of the assessment became due on the filing of the roll; that the city's right of action was not suspended during the pendency of a contestation, and that therefore the right of the city to recover the amount was prescribed and extinguished. Appeal from a decision of the Supreme Court of Canada affirming decisions of the Court of King's Bench for Quebec (Appeal Side) and of Mr. Justice Robidoux in the Superior Court. The case is reported 35 Can. S. C. R. 223. Attwater, K.C., and Ethier, K.C. (both of the Colonial Bar), for the appellants. Donald MacMaster, K.C., and W. L. Bond (both of the Colonial Bar), for the respondents. The facts appear in the judgment. LORD DAVEY delivered the judgment of their Lordships: In the year 1895 the city of Montreal was desirous of widening a section of Notre Dame Street, and on February 20, 1895, in accordance with the procedure prescribed by the city charter, the commissioners appointed for the purpose deposited in the office of the city treasurer a special roll of assessment. One half of the cost of the improvements was thereby assessed on the proprietors of the immovables situate on each side of the street. The respondents are the representatives of a Mrs. Cantin, who was then one of the proprietors assessed, and is now deceased. On August 8, 1895, a number of interested proprietors, including Mrs. Cantin, pursuant to section 144 of the city's charter of 1889 (52 Vict. c. 79), filed in the Superior Court of the Province a petition praying that the roll of assessment be set aside (cassé annulé et mis à néant) on the ground of certain alleged irregularities and illegal proceedings of the commissioners in framing it. From some cause which does not appear on the record delay took place in proceeding with the case, and the city did not answer or plead to the petition until October 26, 1899. Judgment was given for the city on June 29, 1900, and that judgment was confirmed by the Court of Review on June 15, 1901. On September 10, 1902, the lands of the respondents charged with the payment of the assessment were seized by the sheriff of Montreal at the instance of the appellant for the purpose of levying the amount claimed to be due from them. The respondents filed an opposition, and pleaded prescription. The only question in this appeal is whether the plea is a good one. The appellant's charter or Act (52 Vict. c. 79) contains the following enactments: Section 120. "The right to recover any tax, assessment or water rate under this Act is prescribed and extinguished, unless the city, within three years, in addition to the current year, to be counted from the time at which such tax, assessment or water rate became due, has commenced an action for the recovery thereof, or initiated legal proceedings for the same purpose under the provisions of this Act; and the privilege securing such tax, assessment, or water rate avails to the city, notwithstanding any lapse of time, for the recovery of any sum which may, by any judgment, be awarded to the city, for such tax, assessment or water rate: provided that in any case any special assessment is made payable by annual instalments, the prescription runs only from the expiry of each such instalment." Section 231. "The roll of assessment, when finally settled by the Commissioners, as aforesaid, shall be filed and kept of record in the City Treasurer's office; and such special assessment shall thereupon become due and may be recovered by the Corporation in the same manner as the ordinary taxes and assessments which it is authorized by this Act to impose and levy." Section 241. "Whenever a roll of assessment or apportionment for any street MONTREAL CITY v. CANTIN. improvement shall be annulled and set aside, the payments made under the authority of the same shall not be thereby invalidated; but such payments, with interest added, shall go to the discharge of the respective amounts to be fixed by the new assessment roll, subject, on the part of the ratepayer, to making good any deficiency, or to receiving back any surplus, according to the difference that may eventually exist between the old and the new roll of assessment; and the present provision shall apply as well to special assessment rolls heretofore made as to those which may be made hereafter." In the Superior Court, Mr. Justice Robidoux held that the term for prescription ran from the filing of the special assessment roll when the special assessment became due, and that the right to recover the assessment was not suspended by the pendency of the proceedings for annulment. He therefore upheld the respondents' opposition. This judgment was affirmed by the Court of King's Bench, but two of the learned Judges held that prescription had not run against the city, and concurred in the judgment affirming the Superior Court only on the special ground that, inasmuch as another contestation of the same roll was pending at the time of seizure, the action of the city was premature, and the amount of the assessment did not become due until all the contestations of the roll had been disposed of. This judgment was again. affirmed by the Supreme Court of Canada by a majority of three to two, the Chief Justice and two other learned Judges holding that the city was barred by prescription, and the other two holding that the right of action was suspended during the pendency of the proceedings for annulment. The case of the appellant was argued before their Lordships on three grounds -first, that there was an absolute impossibility to act within the meaning of article 2232 of the Civil Code during the pendency of the contestation, or (in other words) the right of action was suspended during that period; secondly, that the petition for annulment was in itself an acknowledgment by the debtor of the right of the person against whom the prescription ran within the meaning of article 2227 of the Civil Code, and the prescription was thereby "interrupted"; thirdly, that the debt was one depending on a condition within the meaning of article 2236 of the Code, and the prescription did not run until such condition happened. The Quebec Code incorporates in article 2232 the well-known maxim, "Contra non valentem agere non currit prescriptio." A decision of the French Court of Cassation was cited from Dalloz, that prescription did not run against a purchaser for the price of the thing purchased during the pendency of a suit to reduce the contract of sale; and another decision of the same Court was cited by the respondents to the contrary effect. The decisions of the Court of Cassation are no doubt entitled to great respect, but they are not binding authorities upon other Courts even in their own country. And their Lordships think that this case must be decided, not on conflicting decisions of a French Court, however eminent, but on consideration of the enactments in the appellant's Act or charter. The terms of section 231 are clear and unambiguous. The amount of the assessment became due and recoverable on the filing of the roll of assessment, and there is nothing in the Act which in terms suspends the right of action during the pendency of a contestation which, by section 144, may be brought within six months after the passing of the assessment roll. Nor is there any obvious inconsistency in the co-existence of the right of action with the proceedings for annulment. In fact, section 241 contemplates that payments may be validly made and received at any time before the roll is annulled and set aside, and enacts that such payments will not even in that event become returnable by the city, but may be retained and applied in or towards amounts to be fixed by a new assessment roll. And, looking at the elaborate provisions for securing publicity and opportunity for persons liable to be assessed to make objections before the final settlement of the roll contained in the earlier sections, it may well be that it was the deliberate intention |