App. Div. 1919 RE ALBIN AND CANADIAN Before leaving the English cases it may be well to refer to the authorities mentioned by Mr. Cripps in his Law of Compensation, 5th ed., p. 146 (note f), cases tending to shew that damage to trade or business cannot be allowed. In addition to those already referred to, he mentions Re Penny and South Eastern R.W. Co. (1857), 7 E. & B. 660; Regina v. Vaughan (1868), L.R. 4 Q.B. 190; R.W. Co. Bigg v. London Corporation (1873), L.R. 15 Eq. 376; Metropolitan Board of Works v. Howard (1889), 5 Times L.R. 732; Dublin Corporation v. Dowling (1880), 6 L.R. Ir. 502. In the Penny case depreciation in the value of property adjoining a railway by reason of the premises being overlooked by persons on the railway was not allowed, but injury from vibration caused by ballast trains during construction was recognised as a ground for compensation. In the Vaughan case, the railway company served upon F., a tenant from year to year, a notice of their intention at the expiration of 6 months to enter and take the premises. F. claimed compensation for depreciation in the value of his interest, which had taken place since the expiration of the 6 months by reason of the execution of the company's works, the custom of the public house having been greatly reduced by the pulling down of the neighbouring houses taken under the company's statutory powers. The magistrate having refused to assess this item of compensation, on a rule to compel him to do so it was held that this depreciation was not the subject of compensation, and the claim had been rightly rejected. Cockburn, C.J., said (L.R. 4 Q.B. at p. 194): "It is quite clear the tenant cannot ask for compensation because the neighbouring property has been taken. The company might have done this by voluntary agreement quite independently of any statutable powers, and so destroyed the custom of the public house, and no action could have been maintained by him for the loss, inasmuch as no injury or trespass was done to him; consequently he could not have claimed compensation for this description of loss. This is an item of compensation not contemplated by the statute." It is apparent that the Vaughan case is distinguishable from and not applicable to the present case. In Bigg v. London Corporation, the 4th item of the plaintiff's claim was "for depression of the trade carried on by the plaintiff Clute, J. App. Div. 1919 RE ALBIN AND CANADIAN R.W. Co. Clute, J. H. Adkins caused by the defendants' works, £150." Sir James Bacon, V.-C., said (L.R. 15 Eq. at p. 381): "There is not, strictly speaking, a particle of evidence that his trade has been in any degree depreciated; and it is clear that the plaintiff has no particular injury to complain of." He was allowed damages for the interference with his cellars, which was not authorised. The Ricket case was referred to by the Vice-Chancellor, who observed that it had gone far to settle the law in such cases; that remote and consequential damages cannot be claimed. It is sufficient to distinguish this case from the one at bar to observe that there was no evidence of loss of trade, and it is to be considered having regard to the third proposition laid down by Lord Selborne in the Walker's Trustees case and the subsequent cases where it has been held that the destruction of a right of access is a ground for damage. Metropolitan Board of Works v. Howard, 5 Times L.R. 732, was an appeal to the House of Lords from the decision of the Court of Appeal, Howard v. Metropolitan Board of Works (1888), 4 Times L.R. 591, affirming the judgment of Mr. Justice Denman in favour of the plaintiff. The claim was under the Lands Clauses Act, and was in respect of the injurious affection of the plaintiff's property by certain street improvements made by the defendants. The plaintiff was the tenant of a licensed public house in Bridge street, about 250 feet distant from old Putney Bridge. Bridge street was the main street on the Middlesex side of the Thames leading to old Putney Bridge. The Board built a new bridge a short distance up the river, and made a new thoroughfare on the Middlesex side leading to the new bridge. The old bridge was then closed, and Bridge street led down to the water only, and in consequence the traffic, which formerly went along Bridge street past the plaintiff's public house, was diverted at a point before the plaintiff's house was reached, and passed along the new thoroughfare and so over the new bridge. The plaintiff claimed compensation in respect of his property being "injuriously affected" by the works carried out by the defendants, and on the inquiry before the jury the plaintiff produced evidence that in consequence of the diversion of the traffic the trade of the public house had greatly diminished. The jury awarded the plaintiff £1,031 compensation. Upon the hearing of the action, the 1919 RE ALBIN AND CANADIAN Clute, J. defendants contended that the inquisition was bad, as it found App. Div. solely, or to a great extent, money due to the plaintiff for loss of profits of the trade, which could not be the subject of compensation, the only subject for compensation being the depreciation in the value of the premises. Mr. Justice Denman, who tried the case, held that he was not justified in treating the inquisition as a nullity, and gave judgment for the plaintiff. The Court of Appeal affirmed the decision of the learned Judge, and Lord Herschell gave the judgment of the House dismissing the appeal, saying (5 Times L.R. 732) that he "did not think it could be doubted that an interference of this character with the access to the house of the respondent by means of thus dealing with the road or highway on which it was situated was an injurious affecting of his premises which would give him a right to compensation if those premises had been rendered less valuable than they were before." This case, below, is reported in 4 Times L.R. 591, where the McCarthy case and the Walker's Trustees case were referred to. In dismissing the appeal, the Master of the Rolls said: "The case came within the 4th proposition laid down by Lord Selborne in the Walker's Trustees case that 'the obstruction by the execution of the work of a man's direct access to his house or land, whether such access be by a public road, or by a private way, is a proper subject for compensation.' In considering that matter it would not be right to regard the house solely as a public house, but it would be equally wrong to exclude the fact that the house was in a position to be used, and was used, as a public house It was not clear that the jury had not used the evidence as to the diminution of trade in considering the question of the depreciation in value of the house. Such evidence was always given and could not be shut out." Lopes, L.J., concurred. In his opinion, the "house was injuriously affected by the execution of the works, and the jury awarded compensation, not for the loss of trade, which would not, per se, be a legitimate head of damage, but for the deterioration in value of the house as measured by the loss of trade." As the result of the cases under the Lands Clauses Act and Railways Clauses Acts (Imperial), the claimant would in the present case be entitled to a claim for compensation for deterioration in the value of the premises, in which evidence of the loss App. Div. 1919 RE ALBIN AND CANADIAN R.W. Co. of trade would be admissible, although possibly not allowable per se. It would be a question whether or not it could be rejected under the 3rd proposition as laid down by Lord Selborne in the Walker's Trustees case. In my opinion, the effect of the 3rd proposition would not be to exclude the claim for damages for loss of trade. However that may be, I think it clear that, having regard to our statute, the claim is well supported. The claim clearly arises under the very language of the statute. The claimant is entitled to full compensation for all damage by her sustained by reason of the exercise of such powers. There is no decision, as I understand the cases, in our own Courts to militate against this view. The Powell case has been already referred to. In St. Catharines R.W. Co. v. Norris (1889), 17 O.R. 667, compensation was sought for the loss of local custom to and from a mill, not arising from the construction of the railway, but from a subsequent user of it. It was held that the damages were too remote, and Galt, C.J., said (pp. 671, 672): "In the case of Caledonian R.W. Co. v. Walker's Trustees, it was manifest that the property in question had been seriously affected by the closing of access to a principal thoroughfare in Glasgow; and in the case of Metropolitan Board of Works v. McCarthy, it was clear his property had been very much lessened in value. In the case now before me no such damage was suggested. All that was urged before the arbitrators, or at any rate all on which their award is based, was that there was a speculative loss of local custom not arising from the construction of the railway but from the user of it." It also appeared to the Court, from the findings of the arbitrators themselves, that the damages were altogether too remote and speculative (p. 672). In Re Toronto Hamilton and Buffalo R.W. Co. and Kerner (1896), 28 O.R. 14, the arbitrator found that the claimant had suffered no damage. Ferguson, J., on appeal, said (p. 19): “In the present case no sum was awarded. It cannot be said that the award exceeds $400, and I am of opinion that, as an appeal, this appeal does not lie. ." He stated (pp. 19, 20) that he thought there might be ground for separating the claim for $189, on the authority of Ford v. Metropolitan R.W. Co. (1886), 17 Q.B.D. 12, if the English Railway Act on the subject was the same 1919 in effect as the Act of 1888 (Dominion), but was of the opinion App. Div. that the Acts were materially different so far as the question there involved was concerned. The case of Leblanc v. The King, 16 Can. Ex. C.R. 219, was referred to. In that case, the Crown had substituted for a level street crossing a permanent subway, which resulted in a material change in the level of the street opposite the property of the suppliant, who claimed both damages to his property and loss of business. Audette, J., held that, where no land is taken, the owner of property on such a street is precluded from recovering for loss of business, and referred to the decision by himself in The King v. Richards (1912), 14 Can. Ex. C.R. 365, where he held that the damages which a suppliant can recover are only those which would affect or would go to decrease the market value of the property. These last two are the only cases which I have found where it has been so held in Canada, and it does not appear in the Leblanc case whether evidence of loss of business and trade was tendered as entering into the depreciation of the value of the land. Re Meyer and City of Toronto (1914), 30 O.L.R. 426, 19 D.L.R. 785, was an appeal by the claimants from the award of the arbitrator, to increase the damages, under the Municipal Act, for the expropriation of a parcel of land on the Lake Shore, upon which were erected a restaurant, boat-house, and dining-hall. The arbitrator found the value of the land and allowed in addition thereto $15,500 for business disturbance. Upon an appeal to this Court, the finding of the arbitrator was sustained and the appeal dismissed. Hodgins, J.A., gave the judgment of the Court dismissing the appeal. The cross-appeal was abandoned. It was held that the profits which are being earned are undoubtedly an element to be considered in deciding as to the value of the land and as demonstrating the use to which it may reasonably and advantageously be put, and as giving it unique and special value. In arriving at the amount of profits, salaries for the claimants, a fair rental, and an allowance for depreciation, were held to be properly chargeable against the business; and an allowance of three years' profits for the diminution of the business was held to be, in the circumstances, sufficient-the value of the land and 2-45 O.L.R. RE ALBIN AND CANADIAN PACIFIC R.W. Co. Clute, J. |