38 EXCHEQUER COURT OF CANADA [1930 ON APPEAL FROM THE BRITISH COLUMBIA ADMIRALTY 1929 DISTRICT Oct. 2, 3. Dec. 7. THE S.S. EURANA (DEFENDANT) APPELLANT; VS. BURRARD INLET TUNNEL AND RESPONDENT. BRIDGE COMPANY (P .1 } LAINTIFF ) .. Shipping—Crown—Navigable Waters Protection Act—Order in Council— Board of Railway Commissioners—Collision with bridge—Negligence —Public nuisance—Works done under legislative authority. Plaintiff, under its Charter (9-10 Edward VII, Chapter 74) erected a railway bridge over the second Narrows of Burrard Inlet, B.C. By its Charter, the Railway Act was made applicable to the undertaking. The site and plans of the bridge, as originally projected, were first approved by the Governor in Council on June 10, 1913, on recommendation of the Minister of Public Works. No steps were taken for ten years, then in April, 1923, amended plans were approved by the Governor in Council. These amended plans were, in July, 1923, sanctioned by the Board of Railway Commissioners and the company was authorized to begin construction, plans of sub-structure and superstructure to be filed for approval of the Engineer of the Board. A Board of Consulting Engineers made certain recommendations in regard to the elevation of the piers. the number of spans, etc. Plans embodying these changes were submitted to the Governor in Council for approval by the Minister of Marine and Fisheries and the plans of the bridge, as finally completed, were approved by Order in Council in August, 1925. In March, 1925, the Railway Board had approved of the said plans. The Charter provided that the bridge be built "so as not to interfere with navigation." It was contended by defendant that the plaintiff had no title to the land on which the bridge was built and that it was a trespasser thereon; that approval should have been obtained as required under the Navigable Waters Protection
Ex. C.R.] EXCHEQUER COURT OF CANADA 39 Act, and this not having been done the bridge was a public nuisance; 1929 that the approval of the amended plans having been approved by the Railway Board before approval by the Governor in Council, such • THE SS. Eurana latter approval was a nullity; that the plaintiff without justification v. had begun construction before final plans were approved; and that BURRARD the plaintiff's Charter having enacted the limitation that the bridge INLET should not be built so as to interfere with navigation, neither the TUN B N RI E DG L E AID Co. Governor in Council nor the Board of Railway Commissioners had _ power to authorize a bridge which interfered with navigation, and that as it in fact so interfered, it was contrary to its Charter and constituted a public nuisance. Held (affirming the judgment appealed from), That plaintiff being in possession of the land in question, at least by licence of the owner, the defendant had no status to attack such occupancy. 2. That the Navigable Waters Protection Act not having been made applicable to the undertaking, and it having been enacted that the Railway Act should apply, and the undertaking being authorized by an Act of Parliament of Canada, the Navigable Waters Protection Act did not apply to the undertaking. 3. That even if there had been laxity on the part of those interested in the matter, in observing from time to time the precise directions of the statute, all such procedural defaults were waived in the final sanction of the plans of the bridge as completed. That the fact that the order of the Railway Board preceded the approval of the same plans by the Governor in Council was not of importance; their combined effect being a sanction, as required by Statute, of a bridge proposed to be built over a navigable water. 4. That the words, in the Company's Charter, " so as not to interfere with navigation," mean not reasonably calculated to interfere with navigation, and the Governor in Council and the Board of Railway Commissioners having approved the plans of the bridge under the authorization of Parliament, and having exercised the discretion resting in them, the bridge in question could not be said to be a public nuisance even though it might contribute some difficulties to navigation at the point in question. 5. That the consent of the Governor in Council, required under Sec. 248 (2) of the Railway Act, to deviations in the plans, need not be obtained upon the recommendation of any particular Minister. 6. That when a vessel passing through a bridge collides with it causing damage to the bridge, the owners of the bridge can only recover such damage upon proof that the vessel was negligently navigated. APPEAL from judgment of the Honourable Mr. Justice Martin, L.J.A. (1) The appeal was heard before the Honourable Mr. Justice Maclean, President of the Court, at Vancouver. Martin Griffin, K.C., and S. A. Smith for appellant. Dugald Donaghy, K.C., and W. E. Burns for respondent. (1) The reasons for judgment of Martin L.J.A. are printed at page 52 following this report.
40 EXCHEQUER COURT OF CANADA [1930 1929 The facts and the questions of law as well as the conten- TxE ss. tions of the parties are stated in the reasons for judgment. Eurana v. THE PRESIDENT, now (December 7, 1929), delivered BUMMED judgment. INLET TUNNEL AND This is an appeal from a judgment of Mr. Justice Martin, BRIDGE Co. L.J.A., for the Admiralty District of British Columbia, in an action brought by the respondent against the appellant, for damages arising from a collision of the steamship Eurana with a railway and traffic bridge owned by the respondent company and crossing the Second Narrows of Burrard Inlet, a navigable water, in the province of British Columbia. The appellant counterclaimed for damages occurring to the Eurana in consequence of the same collision. The learned trial judge dismissed the respondent's action against the Eurana, holding that there was no negligence on the part of that ship, and that the collision was one of " inevitable accident "; he dismissed the counterclaim upon the ground that the bridge was lawfully authorized and erected and did not constitute a public nuisance as alleged. The shareholders of the respondent company, as I understand it, are, The District and City of North Vancouver, The District of West Vancouver, and The City of Vancouver. Money subventions in aid of the undertaking were granted by the Government of Canada, by the Government of British Columbia, and by the Corporation of the Vancouver Harbour Commissioners. As stated by the learned Judge, the case is one of exceptional importance and difficulty. Inasmuch as I have reached the conclusion that the judgment appealed from should be maintained, it is not necessary that I should discuss at length all of the grounds upon which the learned trial Judge based his conclusions, all of which are, I think, very comprehensively and forcibly set forth in the judgment appealed from. Broadly speaking, the appellant's case is, that the respondent company without lawful authority erected and now operates the railway bridge in question; that this bridge interferes with the public right of navigation over a navigable water and thus constitutes a public nuisance. If this contention is established, then I apprehend that the appellant should, in the absence of negligence, succeed generally. The appellant's position is sought to be main-
Ex. C.R.] EXCHEQUER COURT OF CANADA 41 tained inter alia, upon the following grounds: that the 1929 respondent has not title to the lands upon which the bridge THE SS. is built; that the plans of the bridge were not approved Eurana under the provisions of the Navigable Waters Protection BuRRARD Act which is claimed to be here applicable; that the bridge TUNNEL A ND was constructed in violation of the respondent company's BRIDGE Co. charter which required that the bridge should be so con- Maclean J. structed as " not to interfere with navigation "; and that — in any event the respondent company did not secure the necessary approval required by statute, of the plans of the bridge as constructed, by the Governor in Council and the Board of Railway Commissioners. I shall usually refer to the latter body as the Railroad Board. Alternatively, the appellant says the collision was not attributable to its negligence, but that the same was due to " inevitable accident," and it is not therefore liable in damages to the respondent upon the assumption that the bridge was lawfully erected and operated. From this, the substance of the respondent's case may be inferred; chiefly it is, that at the time material here, the ship Eurana collided with and damaged the bridge by reason of negligent navigation. Alluding now, briefly, to the contention that the respon- dent does not possess a valid title to the lands upon which the bridge was erected, because though a grant therefor issued from the Crown in the right of the Dominion, yet, as required, no Order in Council authorizing the issuance of such grant was ever passed by the Governor-in-Council, and that in consequence thereof the grant is void and the respondent is a mere trespasser. In respect of this point, it seems to me that the conclusion reached by the learned trial Judge is the correct one, and I agree with the reasons advanced by the learned Judge in reaching such a conclu- sion; there is very little, if anything, I can usefully add. Presumably, the respondent company is in possession of the land in question, at least by licence of the owner, and the appellant has not, in my opinion, any status to attack such occupancy. Further, if the bridge constitutes a public nuisance, it is because it interferes with navigation, and not because the validity of the respondent company's title is perhaps open to question as alleged. Then it is urged that the plans of the bridge required approval under the provisions of the Navigable Waters
42 EXCHEQUER COURT OF CANADA [1930 1929 Protection Act, cap. 115, R.S.C. 1906, which was not done, THE and that therefore the bridge was unlawfully erected and Eurana is in law a public nuisance. Upon the argument, I was V. BURR ARD impressed by this contention of appellant's counsel, but INLET TUNNEL AND u p on a more careful consideration of the matter I have BRIDGE Co. reached the same conclusion as the learned trial Judge, but, Maclean J. as he dealt very briefly with the point, and as it was strongly urged upon the hearing of the appeal by Mr. Griffin on behalf of the appellant, it might be appropriate to make a more extended reference to this phase of the case. The question is whether a company authorized by statute to construct a bridge over a navigable water, should, prior to construction, have its plans approved under the provisions of the Navigable Waters Protection Act. Upon a careful perusal of sec. 3 of that Act, it would seem clear, that its provisions do not apply " to any work constructed under the authority of any Act of the Parliament of Canada ". If a special Act of the Parliament of Canada, authorized the erection of a public work over a navigable water, such as in this case, and that Act stipulated that the work was to be subject to the terms of the Navigable Waters Protection Act, then the latter Act would of course apply; but that is not this case. Here the respondent company's charter authorizing the work, cap. 74, Statutes of Canada, 1910, expressly provided by sec. 16 thereof, that the Railway Act should apply to the company and its undertaking. Therefore, the Navigable Waters Protection Act not having been made applicable to the undertaking, and it having been enacted that the Railway Act should apply to the undertaking which itself was authorized by an Act of the Parliament of Canada, there can, I think, be only one conclusion, and that is, that the Navigable Waters Protection Act does not apply and was not so intended. The fact that the undertaking was primarily to be a railway bridge, at once suggests the appropriateness of subjecting the undertaking to the provisions of the Railway Act, so far as approval of plans was concerned; further, the work when completed was to be subject to the jurisdiction of the Railway Board. It would therefore seem clear that Parliament intended that the Railway Act, and nothing else should apply to the undertaking. To obtain approval of the plans of a work under the Navigable Waters Pro-
Ex. C.R.] EXCHEQUER COURT OF CANADA 43 tection Act, involves practically the same procedure as is 1929 necessary under the Railway Act, that is, there must be TRESS. secured the approval of the Governor-in-Council upon the Eurana recommendation of the Minister of Public Works; there is BuR ADD just this distinction, that under the Navigable Waters Pro- I NLET tection Act, public advertisement of the proposed work isBc: co n required, whereas when the Railway Act is applicable to — the work, as here, no public advertisement is necessary; a Maclean J. formal order of approval of the detail plans and profiles by the Board of Railway Commissioners is required, follow- ing approval by the Governor-in-Council of a plan and description of the proposed site and a general plan of the work to be constructed. It therefore appears manifest to me, that it was not the intention of Parliament that the Navigable Waters Protection Act was to be applicable to the work in question. Before entering upon a discussion of another important point in the appellant's case, it might first be convenient and useful to state chronologically, the steps taken by the respondent company, in securing from time to time the approval of the plans of the work by the Governor-in- Council, and by the Board of Railway Commissioners. The appellant claims that the bridge as actually constructed, was unauthorized and not approved of by the authorities. designated by the Railway Act, and was therefore erected contrary to the terms of the statute made and provided for in such cases; I shall indicate, as I proceed, the several grounds upon which this contention is based. The site and plans of the bridge, as originally projected, were first approved by the Governor-in-Council on June 10, 1913, upon the recommendation of the Minister of Public Works. No further step was apparently taken in respect of the undertaking for nearly ten years; the reasons for this pro- longed delay need not be enquired into. On April 25, 1923, amended plans (exhibit 2) were approved of by the Governor-in-Council upon the submission and recommen- dation of the Minister of Public Works; the principal de- parture from the original plans was that the amended plans contemplated a bascule lift span with 150 feet horizontal clearance and 15 feet clearance above high tide, instead of another type of opening span shown in the first plans of 1913. The recommendation of the Minister was made with
44 EXCHEQUER COURT OF CANADA [1930 1929 the concurrence of the Vancouver Harbour Commissioners THE SS. and the Acting Chief Engineer and Deputy Minister of the Burma Department of Public Works. On the 31st of July, 1923, V. BTRRARD the Railway Board by Order sanctioned, under section 248 INLET TUNNEL AND of the RailwayAct, the amended plans of the bridg e ex-BRIDGE Co. hibit 34), and on the same day authorized the company to Maclean J. proceed to construction of the bridge according to such amended plans, but directed that detail plans of the substructure and super-structure be filed for the approval of the engineer of the Board. It is to be mentioned here that the appellant contends that the plans just mentioned as being approved of by the Railway Board, differed from the plans (exhibit 2) approved previously by the Governor-in-Council, in the following respects: the latter provided for two spans and four piers, the former for three spans and five piers; the piers in each case were to be composed of a different number of cylinders; the length of the bridge varied in the two plans; and that the grade at the south end of the bridge was different in the two plans. By reason of the variations, in the plans approved by the Railway Board from those approved by the Governor-in-Council, the appellant urges that the Order of the Railway Board was made without jurisdiction and is a nullity. Subsequently it appears, fears were expressed by the interested public, that if the bridge was constructed as contemplated, it would increase the rapidity of the current of water passing under the bridge, and a Board of Consulting Engineers was set up, I think, at the instance of the Government of Canada, to consider, inter alia, the best means of altering the structural plan of the bridge so as to diminish the rapidity of the current of the waters of the harbour passing under the bridge. The Board of Consulting Engineers eventually recommended that the spans of the bridge be raised five feet and also the Lynn Creek approach; that two additional spans be constructed and that certain changes be made in the piers; that certain of the framed trestle super-structure be dismantled and reconstructed. These changes were apparently suggested with a view to reducing the structural impediments to the free flow of the current at this point. Plans embodying these several changes were submitted to the Governor-in-Council for approval, on the recommendation of the Minister of
Ex. C.R.] EXCHEQUER COURT OF CANADA 45 Marine and Fisheries. It is probable, as suggested by 1929 counsel for the appellant, that this recommendation eman- THE SS. ated from the Minister of Marine and Fisheries, because Eurvana . the Board of Harbour Commissioners for the Port of Van- Bua$A$D couver were proposing to assist the company financially in TuNhZTAND carrying out certain of the proposed alterations in the BRIDGE Co. structural plans of the bridge, and this board was under Maclean J. the administration of the Department of Marine and — Fisheries. At any rate, the plans of the bridge as finally completed were approved by this Order in Council. No explanation was given as to why the recommendation to the Governor-in-Council for the approval of the last amended plans was not made by the Minister of Public Works, but I shall later refer to this. The amended plans were approved by the Governor-in-Council on August 20, 1925. The Board of Railway Commissioners had apparent- ly given its approval to the amended plans on March 6, 1925, prior to the approval by the Governor-in-Council. The appellant contends that the changes made by the amended plans were " deviations ", which under the Rail- way Act, required the approval of the Governor-in-Council, and before any Order of approval of the same was made by the Railway Board, and that therefore, the Order of the Railway Board was a nullity because it preceded the ap- proval of the " deviations " by the Governor-in-Council. The changes involved in the amended plans were doubtless of a very substantial character. The appellant also con- tends that the Order in Council of August 20, 1925, was not one such as contemplated by the Railway Act, but rather an approval of the advance of public funds to the Vancouver Board of Harbour Commissioners, to L ssist finan- cially the respondent company in elevating the spans of the bridge and one of the approaches. It is also alleged that the respondent company, without justification proceeded with the construction of the bridge prior to the approval of the last amended plans, by either the Governor-in- Council or the Board of Railway Commissioners. The bridge was completed under the plans approved of in 1925 as just stated . An Order of the Railway Board permitting the use and operation of the bridge was passed on October 21, 1925; the bridge was formally opened for traffic on
46 EXCHEQUER COURT OF CANADA [1930 1929 November 7, 1925, and has been continuously in operation THE M since that date. Eurana V. It is appropriate next to refer to the p provisions of the BURRARD Railway Act which are applicable to the work in question. INLET TUNNEL AND First, it should be stated that the respondent company was BRIDGE Co. incorporated in 1910, cap. 74, Statutes of Canada, 1910, Maclean J. and, inter alia, was authorized to construct and operate a bridge over the Second Narrows of Burrard Inlet, for railway and other purposes, but " so as not to interfere with navigation ". Sec. 16 enacted that " The Railway Act shall apply to the company and its undertaking ". The company was also empowered by sec. 14 of the Act, to construct one or more lines of railway to connect the bridge with the lines of other railway companies, operating in that locality. The undertaking was also declared to be a work for the general advantage of Canada. The provisions of the Railway Act, cap. 68, Statutes of Canada, 1919, which are relevant here, might be quoted at length; they are as follows:- 245. No company shall cause any obstruction, in or impede the free navigation of any river, water, stream or canal, to, upon, along, over, under, through or across, which its railway is carried. * * * * * 247 (1). Whenever the railway is, or is proposed to be carried over any navigable water or canal by means of a bridge the Board may by order in any case, or by regulations, direct that such bridge shall be constructed with such span or spans of such headway and waterway, and with such opening span or spans, if any, as to the Board may seem expedient for the proper protection of navigation. * * * * * 248. When the company is desirous of constructing any wharf, bridge, tunnel, pier or other structure or work, in, upon, over, under, through or across any navigable water or canal, or upon the beach, bed or lands covered with the waters thereof, the company shall, before the commencement of any such work, (a) in the case of navigable water, . . . submit to the Minister of Public Works . . . for approval -3y the Governor-in-Council, a plan and description of the proposed site for such work, and a general plan of the work to be constructed, to the satisfaction of such Minister; and (b) Upon approval by the Governor-in-Council of such site and plans, apply to the Board for an order authorizing the construction of the work and with such application, transmit to the Board a certified copy of the Order in Counc_l and of the plans and description approved thereby, and also detail plans and profiles of the proposed work, and such other plans, drawings and specifications as the Board may, in any such case, or by regulation, require.
Ex. C.R.] EXCHEQUER COURT OF CANADA 47 (2) No deviation from the site or plans approved by the Governor-1929 in-Council shall be made without the consent of the Governor- in-Council. THE SS. Eurana (3) Upon any such application, the Board may,— D. (a) Make such order in regard to the construction of such work BURRARD upon such terms and conditions as it may deem expedient; TUNNE IN L L E A T N D (b) make alterations in the detail plans, profiles, drawings and BRIDGE CO. specifications so submitted. (4) Upon such order being granted, the company shall be authorized Maclean J. to construct such work in accordance therewith. (5) Upon the completion of any such work the company shall, before using or operating the same, apply to the Board for an order authorizing such use . or operation, and if the Board is satisfied that its orders and directions have been carried out, and that such work may be used or operated without danger to the public, and that the provisions of this section have been complied with, the Board may grant such order. The alleged defaults of the respondent, in complying with the provisions of the Railway Act in respect of the securing of approval of the bridge plans have already been stated. Now, starting with the plans approved of by the Governor-in-Council in 1923, and assuming even that the plans approved of by the Railway Board in July of the same year, deviated, as alleged, in substantial particulars from the plans approved of by the Governor-in-Council. Sec. 248 (2) of the Railway Act enacts that " no deviation from the site or plans approved by the Governor-in-Council shall be made without the consent of the Governor-in-Council ". Any deviation from the plans approved of by the Governor-in-Council in 1923, was however sanctioned by the Order in Council made in August, 1925, approving of the final plans. The fact is, that the plans of the bridge as completed and put into use and operation were approved of by the Governor-in-Council and by the Railway Board; when all is said and done, the fact remains, that the bridge as constructed had such approval. If the respondent company proceeded, as alleged, with construction, according to the deviations to be recommended by the Board of Consulting Engineers,—and it is not unreasonable to assume that it had knowledge in advance of what such recommendations were to be—and chose to take the risk of securing subsequently the formal approval of such deviation by the Governor-in-Council; if the plans approved by the Railway Board in 1923 in fact constituted " a deviation " from the general plan approved of by the Governor
48 EXCHEQUER COURT OF CANADA [1930 1929 in-Council in the same year, or, if such approval was THE ss. prematurely obtained, that is, prior to the approval by the Eurana Governor-in-Council; still, I do not agree with the conten- v. BURRARD tion, that therefore the approval made by the Governor- TUNNEL AND in-Council and the Railway Board in 1925 of the ultimate BRIDGE Co. plans of the bridge as actually constructed is a nullity, and Maclean J. not a compliance with the spirit of the statutory conditions. It seems to me that all the requirements and conditions which the Legislature sought to impose for the purpose of protecting public rights in navigable waters, was in the end observed. There may have been laxity on the part of all having to do with the matter, in observing from time to time the precise directions of the statute, but all such procedural defaults, if any, were, in my opinion, waived in the final sanction of the plans of the bridge as completed. The fact that the Order of the Railway Board made in 1925, preceded the approval of the same plans by the Governor-in-Council, is not, I think, of importance; their combined effect was a sanction, as required by statute, of a bridge proposed to be carried over a navigable water. Neither does sec. 248 (2) of the Railway Act make it imperative that consent to such deviations by the Governor-in-Council should be made upon the recommendation of one particular Minister; the consent of the Governor-in-Council is all that is required, and the statute does not say that this consent must be obtained upon the recommendation of any one Minister. The changes effected by the plans approved of in 1925 were evidently designed for the further assurance of the protection of navigation; it is to be assumed that the protests made against the plans approved in 1923, were, that the bridge had not sufficient height above high tide, and that the sub-structure of the bridge offered too many obstructions to the normal flow of the water at the Second Narrows. Probably, it was with the Department of Marine that public protests were registered against the plans approved in 1923, and which brought about the enquiry made by the Board of Consulting Engineers. Particularly would it be the function of the Department of Marine to safeguard the public rights in navigable waters, in Canada. That possibly was one reason why the recommendation to the Governor-in-Council was, in this instance, made by the Minister of that Depart-
Ex. C.R.] EXCHEQUER COURT OF CANADA 49 ment of Government, in addition to the other reason I have 1929 already assigned. I do not therefore think there is sub- THE stance in the contention, that the approval of or consent Eurana v. to the deviations of August, 1925, made by the Governor- Busxesn in-Council, was a nullity because it was not made on the m u NIN LEELr„rrn recommendation of the Minister of Public Works; in fact, BRIDGE CO. I think, it matters little by what Minister that recommen- Maclean J. dation was made so long as the approval was made by the Governor-in-Council. Further, I think, it is to be presumed that the recommendation in question to the Governor-in-Council carried the approval of the Minister of Public Works. I therefore reach the same conclusion as the learned trial Judge, that the statutory conditions relating to the approval of the site, the general plans and the detail plans, of the bridge, were complied with, within the spirit and intent of the Railway Act. There remains to consider, upon this aspect of the appeal, the effect of the words ” so as not to interfere with navigation ", as found in the Act of Incorporation of the respondent company. It is contended, that Parliament having enacted this limitation in respect of the power of the company to construct and operate the undertaking in question, that neither the Governor-in-Council nor the Railway Board, had power to authorize the construction of a bridge which interfered with navigation; that the Act falls short of authorizing a nuisance; and that if the bridge as constructed does in fact interfere with navigation, it is a work erected contrary to the statute and constitutes a public nuisance. Upon this point, I agree with the reasoning and conclusion of the learned trial Judge, and there is little further that I need say. The Legislature committed to the Governor-in-Council and to the Board of Railway Commissioners, the power to determine the plan of bridge that might be constructed. Having exercised the discretion resting in them, and having approved of the site, and the general and detail plans of the work, as one not reasonably calculated to interfere with navigation,—and they must have meant that, —I think it is now too late to say, that the bridge was one erected contrary to the provisions of the respondent company's Act of Incorporation. Possibly, an error in judgment was made in approving the 97870-2a
50 EXCHEQUER COURT OF CANADA [1930 1929 structural plans of the bridge; it may be that the bridge THE has left navigation at the Second Narrows more difficult Eurana and dangerous than theretofore; yet, the site, and the gen-BuRA RD eral and detail plans of the bridge having been approved Ixi,ET TUNNEL AND bythose to whom suchpower was specially dele g g ated by BRIDGE Co. Act of Parliament, the work having been in good faith Maclean J. completed according to such plans, and the completed work having been put into operation by leave of the Railway Board, I do not think the same can now be declared to be an unlawful work and a public nuisance, even if it does, in fact, in some degree, render navigation at this point more hazardous than prior to its construction. Fundamental errors in constructed public works, inimical to public interests, are frequently discovered after completion, but if the statutory authority and conditions applicable to the work were complied with, I hardly think it practical to say, that if damages result from the construction of the work, the party using it is responsible for any such damages, if occurring without negligence. In this case, I think, as the learned trial Judge held, that the words " so as not to interfere with navigation ", mean not more interference than is reasonably necessary to carry out the undertaking as authorized, and as approved by the Governor-in-Council and the Board of Railway Commissioners. What the Governor-in-Council and the Board of Railway Commissioners did, was the equivalent of a positive legislative act authorizing the erection of the bridge, according to the plans under which it was in fact erected. If I am correct in this view, then the appellant fails because the work as constructed was one authorized by the Legislature. Thus, Blackburn J., in the course of his judgment in Hammer-smith Railway Co. v. Brand (1) says:— I think it is agreed on all hands that if the Legislature authorizes the doing of an Act (which if unauthorized, would be a wrong and a cause of action), no action can be maintained for that act, on the plain ground that no Court can treat that as a wrong which the Legislature has authorized, and consequently the person who has sustained a loss by the doing of that act is without remedy unless in so far as the Legislature has thought it proper to provide for compensation to him. The learned trial Judge has discussed this point in his reasons for judgment, at great length and with clearness, (1) (1869) L.R. 4 H.L. 171, at p. 196 (E. & I. App.)
Ex. C.R.] EXCHEQUER COURT OF CANADA 51 and his finding which I adopt, should not in my opinion 192$ be disturbed. • THE SS. Eurana It was also contended that a rock fill, on the south shore, ,,. was greater in extent than authorized and was responsible BvR ' INLE for definite difficulties in navigating the bascule span. I TUNNEL AND do not propose discussing this point as I fully concur in BRIDGE Co. the disposition of the same made by the learned trial Judge, Maclean J. and his reasons therefor. Now as to the cross-appeal, in respect of the respondent's claim against the ship Eurana for damages caused to the bridge in consequence of the collision. In his reasons for judgment, the learned trial Judge discussed with great care the effect of the construction of the bridge upon navigation at the Second Narrows, the natural difficulties of navigation at this point, the peculiar sub-surface tidal currents obtaining at the time material here, the effect of dredging operations at the First Narrows upon the Second Narrows tidal currents, the navigation of the Eurana, and other alleged facts relevant to the respondent's claim that the damages caused to the bridge was by reason of the negligent navigation of the Eurana. He concluded, that upon the evidence, he could not find that the allegations of negligence against the Eurana, as to the time of making the attempt to pass through the bridge or the manner in which the attempt was carried out, had been sustained, and that it was a case of inevitable accident. After a careful perusal of the evidence, and upon a consideration of the reasons given by the learned Judge, I cannot see any grounds for disturbing the conclusion which he reached, and I think the same was justified by the evidence. I do not think that negligence has been established against the Eurana. At the time and place in question, conditions prevailed that undoubtedly made navigation through the bascule span extremely difficult, and I think with the learned Judge, that the Eurana attempted to navigate the open span with reasonable care, caution and maritime skill, and left undone nothing that could have been done to avoid the accident. Accordingly I am of the opinion that the appeal and cross-appeal should both be dismissed, and with costs in each case. Judgment accordingly. 97870-21a
52 EXCHEQUER COURT OF CANADA [1930 1929 Judgment of the Honourable Mr. Justice Martin L.J.A. BUREARD delivered the 20th of April, 1929. INLET TUNNEL AND This is an action by the plaintiff lision between the SS. Eurana and BRIDGE C°. company (incorporated by Can. the said bridge was occasioned by V. T Eu a r u a n a . Stat. 1910, Cap. 74 against the SS. the fact that the said bridge was Eurana. Burma, length 339.7 feet,. beam badly designed and constructed and 56.21, gross tonnage 5,688, regtd. impedes and interferes with the 3,516, draught as then loaded 25 -ft. navigation of said Second Narrows aft 23.5 for'd. single screw. h.p. to a greater extent than is necessary 2,500, Nels Svane, master), to re- to enable the plaintiff to exercise cover $7,887 damages done to its its said statutory powers and that bridge across the Second Narrows of therefore the plaintiff is not entitled Burrard Inlet on the 10th March, to recover damages in respect of 1927, shortly after 6 p.m. by said said collision." ship, owing to the alleged negligent The defendant ship also, on the navigation thereof, in colliding with facts of the collision, denies any bad the E. side of the bridge while at- navigation and alleges alternatively, tempting to go through its 150 feet par. 14, that it was caused by bascule span with a full cargo of " circumstances of wind and current 4,200,000 feet of lumber when the over which those in control of the tide, a fairly big one, was appar- Eurana had no control and which ently at the last of low water slack, they could not anticipate or guard outward bo,und from Barnet. Sev- against and the collision was an in-eral charges of faulty navigation evitable accident for which the de-are set up but those substantially fendant is not responsible." relied upon are that the ship did And it further alleges that at the not set and keep a course true for time in question the tide turned the centre of the span opening, and and began to flood earlier than the that she made the attempt to go hour fixed by the tide table, and through it at a wrong stage of the the northerly set of the tide was of tide, i.e., on the ebb, instead of at abnormal force, and that the span slack or slight flood, and failed to opening is not in the middle of the observe the unfavourable set of the channel, and is too narrow, and that same, and delayed in taking proper the unnecessary number of short manoeuvres. spans and a rock fill on the South The defendant ship disputes the shore create strong and varying cur-title of the plaintiff to the bridge rents which make navigation un and the land it is built upon and usually difficult even at the most its right to construct and maintain favourable times. the same, and alternatively alleges The defendant ship further sets that the plaintiff has not obtained up a counterclaim against the corn-the approval of the Governor Gen- pany for $77,064 as and for damages eral in Council, under the Navig- to her caused by the said collision able Waters Protection Act for its based upon the allegation that the undertaking, and that in conse- plaintiff wrongfully and illegally quence the bridge is an unlawful erected the said bridge and main-obstruction to navigation; and also tains it as a public nuisance as being that even if the statutory power to an. " obstruction " which " impedes build a bridge which impedes navi- the free and convenient navigation gation has been duly conferred yet of the said Second Narrows by ships the plaintiff— having lawful occasion to navigate "negligently and wrongfully con- said waters," and which "obstruc-structed a badly designed bridge tion" was the cause of the damage which impedes and interferes with to the ship while she was endeavour-the navigation of said Second Nar- ing to proceed past or through (it) rows to a greater extent than is without colliding with it." necessary for the proper exercise of To this the plaintiff replies that the plaintiff's said statutory powers the bridge has been duly construct-and the defendant says that the col- ed in accordance with powers con-
Ex. C.R.] EXCHEQUER COURT OF CANADA 53. ferred by the said Statute and the reasonable human effort and pre-1929 Railway Act and certain recited caution cannot always guard against orders of the Governor in Council accident when the margin of safety Bv1RABI and the Board of Railway Commis- is substantially reduced in what at ING m E EaLm sioners, and, in general, joins issue the best of times is, now at least, a BRID oo with the other said allegations of un- channel which presents increased Bxmo v E C . due interference with navigation and difficulties in navigation for larger THE as. nuisance by obstructions and wrong- deep sea vessels, over 300 feet in Eurana. ful or negligent construction in any length, to navigate. respect, and denies that the same It is not necessary, on this branch Martin were the cause of the collision, and of the case, to consider to the full- L.JA. that it was due to abnormal con- est extent what the effect of the — ditions which could not have been construction of the bridge has been anticipated and guarded against. upon such navigation by ships of Upon these issues forty-two wit- the class now in question, but it is nesses were called and a vast sufficient to say that in three re-amount of evidence taken upon all spects the natural difficulty has been aspects of the claim and counter- substantially increased thereby, viz., claim, much of which evidence is in contracting the space in which applicable to both distinct causes of it is necessary for such ships to line action though not all of it, and it up in passing through the bascule would be easy to confuse the issues span outwards, and in manoeuvring were not their distinct nature kept after passing through inwards; in in mind because the relevant facts addition to the naturally very un - are largely interwoven. certain conditions of tidal currents Taking up then the Plaintiff's in the immediate vicinity of the claim first, and assuming in its bridge; and in increasing the force favour all questions of title and that of the current through it at said the bridge has been only construct- span in particular. Though a great ed in accordance with statutory mass of evidence was given upon powers and plans authorized by the these main points it would be prac-proper authority, it is nevertheless tically impossible to review it ade-necessary to consider the effect of quately in these reasons, and the this authorized obstruction upon subject is further complicated by the navigation of the channel when the important unquestioned fact an action is brought against a yes- that the extensive operations which sel for damaging the bridge in pass- for a long time have been carried ing thruugh it. In other words, if on (and still are in progress) in the effect of its construction is to deepening, widening and straighten -• make navigation even at proper ing the outlet channel at the First times more difficult than theretofore Narrows have had an appreciable it would not be reasonable to expect effect upon the currents at the that mariners so using the channel Second Narrows, which indeed is could avoid injury to themselves or obvious from the mere inspection of to the bridge as easily as they could the charts of Burrard Inlet, because if the channel had been left in a the contracted run-in of a great state of nature, even though they volume of water to the lower basin use all the skill and caution that (between the bridge and Brockton should be required of a prudent and Point) through the Second Nar-skilful navigator. It must follow rows must inevitably be affected by that the more difficult the passage the facilities of run-off to sea is made the more must accidents be through the First Narrows, and expected, just as the easier it is the vice versa with incoming tides fewer should there be. Obviously it which bring the water back through would not be reasonable to expect the First and Second Narrows to the the same results in such very differ- much larger upper basin above the ent circumstances, because though bridge. But upon the extent of the standard of the mariner's nevi- the undoubted substantial effect of gation is always the same, yet as these First Narrows operations upon his task is rendered more difficult conditions at the Second there is no the more must it be expected that evidence of any weight, which is
54 EXCHEQUER COURT OF CANADA [ 1930 1929 not indeed to be wondered at, be- ance called The Knuckle tends to cause to obtain any reliable in- cramp such vessels in their passage BUR$A$D formation upon the point a series of inwards and outwards. It is not, in INLET long and doubtless very expensive strictness, for this Court to suggest TUNNEL AND Co. observations, and also researches a remedy for this condition but in BRIDGE . into prior conditions, would have a case of this exceptionally wide THE SS. to be undertaken, which the parties public importance I cannot shut my _,Furan. hereto have not attempted and eyes to the fact that the evidence could not reasonably be expected to suggests that it would be well for Martin do so. Nevertheless the absence of the proper authority to cause care- L.J.A. exact information upon substantial ful observation and investigation of changes in navigation which are not the shoal to be made to ascertain if due to the bridge at all (and yet it would not be possible to reduce, which will continue to increase as materially at least, the obstruction the First Narrows channel continues it causes, by dredging operations, as to be widened) renders it impossible in the First Narrows. to determine satisfactorily the ex- These questions of the proper tent of the degree to which the construction of bridges and their bridge alone has added to the proper position as regards the cur-natural difficulty of navigation, and rent are always difficult and there it is not necessary on the present have been several of them before point to say more than that the this Court, the last being The At-bridge has, apart from the said First torney General of British Columbia Narrows operations, increased in the v. The Pacific Foam (1), but they said three ways the said natural diffi- all depend upon the particular and culty to a substantial extent, though always varying circumstances of undefinable upon the insufficient each case. The present one, in view evidence before me. At the same of its exceptional importance and time, however, the increase is not difficulty has caused me long and as great as many witnesses deposed anxious reflection, with the result, to and it is very probable that one that bearing in mind the conditions of the reasons why there was so the defendant ship was confronted much conflict between apparently with in attempting to pass through credible witnesses (as I am pleased the span at the time in question, I to say most of them appeared to can only reach the conclusion that be) as to the difference between the said allegations of negligence former and present conditions at the against her are not sustained by evi-Second Narrows is that they failed deuce, either with respect to the . to appreciate the far-reaching effect time of making the attempt or of of the First Narrows operations the manner in which that attempt upon present conditions of the tide was carried out, despite the able and current at the Second and manner in which Mr. Burns pre-merely regarded the latter in the sented his argument to the con-light of what they see now at that trary. The accident, was, I can only spot. conclude from the evidence, caused It is further alleged that the diffi- by a very strong incoming sub-sur-culty of navigating larger vessels face current setting northeasterly through the bridge has been in- across the bridge and not visible on creased by the fact that the bascule the surface, which continued to in-span is not placed at right angles dicate slack water, and which unto the centre of the main current, der-current at a distance of 500-600 and that it is appreciably to the feet from the bridge suddenly and .South thereof. That such is the unexpectedly greatly increased in case to some, and an appreciable strength and took control of the extent, there is little if any doubt ship causing her to sheer suddenly 'because the presence of a shoal on from the proper course she had the South shore of the channel ex- been on and was still holding at a tending Eastward from the bridge proper speed, and which in ordin-for about 700 feet to a protuber- ary circumstances would have taken (1) (1928) 40, B.C.R. 100.
Ex. C.R.] EXCHEQUER COURT OF CANADA 55 her safely through the bascule span. It is to be noted that in certain 1929 No fault is to be found in the aspects there is also a similarity be- '-"e•-' measures taken by the ship to ex- tween this case and the very recent BURRARD trioate herself, though ineffectually, one of The Vectis (4), wherein a INLET from the imminent danger in which collision " bumping " took place be- Bmno . err n a Co. she suddenly found herself and tween two barges in a narrow creek BRIDGE which she had no reason to antici- owing to " a sudden swell of the in- THE'SS. pate. It is true that those in charge coming tide," as Lord Merivale de- Eurana. of her expected, and were in fact scribes it. A new trial was ordered — prepared to meet ordinary changes in the circumstances, but speaking Martin in the undercurrent there (caused of the expectation of "bumps" in L.J.A. largely by the fact that the change narrow places Mr. Justice Hill said, — of the tide as the bascule span is p. 387: very quick, almost instantaneous at " Apart from knowledge of the times, and slack water usually is dangerous position of the anchor, only for a few minutes) but not one E can see no reason for saying that at all approaching the abnormal there is negligence in not preventing strength encountered on this occa- a harmless bump between barges, sion, which her pilot, Wingate, de- such bumps are frequent in the or-scribes as "tremendously stronger" dinary working of barges, and in than he had ever experienced there, this narrow creek were probably in-and his evidence is confirmed in cidental to the ordinary use of the essentials by that of the Master, creek. They involve neither dam-Svane, and also largely by Captain num or injuria." Harrison of the Pacific Foam and Seeing that the case is one of in-Captain Payne of the Farquhar, and evitable accident the Plaintiff's W. Tambourino, independent eye- claim must be dismissed, and for- witnesses. merly it was the practice to cuin- Beingthen of op P~ i nion that this no order as to costs in such circum- collision " could not possibly have stances, but the present practice as been prevented by the exercise of laid down by this Court in "The ordinary care, caution and mari- Jessie Mack" v. The "Sea Lion" time skill" on the part of the ship, (5), is that costs should follow the the case becomes one of " inevitable event in the absence of special cir-accident " as so defined by the cumstances requiring a departure Privy Council in The Marpesia (1), from that rule; to the cases there wherein it is also said:— cited I add The Cardiff Hall (6), "Here we have to satisfy ourselves and as the defence of inevitable ac-that something was done or omitted cident was pleaded herein and there to be done, which a person exercis- are no special circumstances which ing ordinary care, caution and would justify a departure from said maritime skill, in the circumstances, general rule the disposition of the either would not have done or costs will be in accordance there-would not have left undone, as the with. case may be." Then as to the counterclaim of This definition was also adopted by the ship against the bridge. This the English Court of Appeal in depends largely on different con-The Schwan (2), and lately applied siderations because if the bridge has by this Court in its New Bruns- been duly built in accordance with wick District in the similar case of the permission given by the proper The King v. The Woldingham (3), authority, the fact that it does to include a sudden " yaw " in pass- actually obstruct navigation more or ing through a narrow bridge; cf., less imposes no liability upon it for also Marsden's Collisions at Sea damage to vessels caused by the in-(1922) 18, and Bevan on Negligence creased difficulty in navigating the (1928) 1291. natural narrow channel, which it (1) (1872) L.R. 4 P.C. 212. (4) (1929) 45, T.L.R. 384. (2) (1892) P. 419. (5) (1919) 27 B.C.R. 444. (3) (1925) Ex. C.R. 85. (6) (1918) P. 56.
56 EXCHEQUER COURT OF CANADA [1930 1929 has restricted and impeded substan- thereof not only to build a bridge tially as already indicated; it is but also to operate (and does in BUREAU beyond reasonable doubt that if the fact operate) " one or more lines of INLET bridge had not been there on the railway " across said bridge and into TUNNEL AND day in question the ship would not adjacent territory as part of its un - BRIDGE CO v have suffered any damage. The dertaking as a connecting line with THE SS. right, therefore, of the Plaintiff certain of the other railways speci-Eurana. company to build and maintain the fled in sec. 14, and by sec. 2 that bridge in its present state and posi- whole undertaking is " declared to Martin tion is what is really in question on be a work for the general advant- L.J.A. this branch of the case. age of Canada " and sec. 16 declares It is first objected that the Plain- that "the Railway Act shall apply tiff has no title to the lands upon to the company and its undertak-which the bridge is built and there- ing." The effect of these provisions fore cannot maintain this action is to read into the Act of Incorpora-and that its National Crown Grant tion, which is a public Act (Inter-(dated May 9, 1924) of the lands pretation Act, R.S.C., cap. 1, s. 13), " as part of a public harbour " is in- all apt provisions of the Railway valid in that no Order in Council Act and the two acts must be read authorizing it has been put in evi- as one so as to carry out the inten-dence though the Grant recites tion of Parliament to legislate for " that it is made under and by the " public good " (advantage of virtue of the statutes in that behalf Canada) and, as the said Interpreta-and pursuant to authority duly tion Act, sec. 15, declares it— granted by our Governor in Coun- "shall accordingly receive such fair, cil." This objection, in my opin- large and liberal construction and ion, is not one of weight in the case interpretation as will best ensure the of a Grant made under the great attainment of the object of the Act. seal of Canada, even assuming that . . . according to its true intent, an order in council is necessary, be- meaning and spirit." cause, in brief, a recital in such an Approached in this light no real instrument of the greatest solemnity difficulty is to be experienced from and duly recorded, i.e., enrolled (on the words much relied upon by the 31st May, 1924) is sufficient to ship in sec. 8, that said undertaking establish a prima facie case of the may be constructed, operated and existence of such an order if-neces- maintained "from some convenient sary, or at least to bring into opera- points on the South shore in or near tion the maxim omnia praesumun- the City of Vancouver to points on tur rite esse acta, nor on long-estab- the opposite shore of Burrard Inlet lished and well-known principles so as not to interfere with naviga-has a stranger any status to rely tion. That the general location of upon the effect of the non-perform- the bridge is at the most "con -ance of any conditions which might. venient points " of the Second Nar-e.g., result in a forfeiture to the rows is not disputed; in fact it is Crown—Canadian Co. v. Grouse unquestionably at the best points, Creek Flume Co. Ltd. (1), and and except in its immediate neigh- cases noted at p. 8. bourhood the construction of a Then as to the application of the bridge across them (the Narrows) Navigable Waters Protection Act, would not in reason be contemplat-cap 115, R.S.C. 1906, and amend- ed, and even where it is located the ment, cap. 33 of 118, now cap. 140 evidence is clear that for many R.S.C. 1927; it is in my opinion ex- reasons its construction presented eluded by the 3rd section thereof several problems of exceptional diffi-in and for the present circumstances culty to overcome. It would be and purposes, not being "rebuilding impossible in the present stage of or repairing," as will later appear. human effort to build a bridge there The Plaintiff company by its said which would not in some substantial act of incorporation (cap. 74 of degree interfere with navigation 1910) is authorized by secs. 8 and 9 within the decisions which are con- (1) (1867) 1 M.M. C. 3.
Ex. C.R.] EXCHEQUER COURT OF CANADA 57 veniently collected in a leading case in Cooke v. Charles A. Vogeler Co. 1929 in this Court. Kennedy v. The (5), said: `But a court of law has Surrey (1), to which may be added nothing to do with the reasonable- Buxsean Attorney-General v. Terry (2), and ness or unreasonableness of a pro-INLET The King v. The Woldingham, vision, except so far as it may help TUNNEL AND supra. them in interpreting what the legis- BRIDGE Co. V. To escape the literal consequences lature has said.' Which necessarily E ur E SSS. of those decisions and to allow un- means that for this latterpurpose it Eu arna. impeded navigation for the whole of is legitimate to take into considera-...— the space at all stages of this tide it tion the reasonableness or unreason- Martin would, as one example only, be ableness of any provision of a L.JA. necessary to have a span of at least statute. Again, a section of a statute one thousand feet without support- should, if possible, be construed so ing piers and that fact alone shows that there may be no repugnancy that Parliament, which must be as- or inconsistency between its differ-sumed to be informed upon the sub- ent portions or members?" ject of the public harbour with Applying both these most appropri-which it was dealing, could never ate principles to the present case, have contemplated anything of the Parliament, in my opinion, intended kind, and to hold that Parliament that the said two acts must be read intended to grant a charter which together and practically applied in ostensibly conferred powers to be such a way as to arrive at the only exercised to the "general advantage possible reasonable result in the cir-of Canada " and yet at the same cumstances, viz., that the words time rendered them incapable of "not to interfere with navigation" execution is a conclusion which a mean not more than is necessary to Court of Justice should be intract- carry out the undertaking in the ably driven to before accepting be- manner authorized by the special cause it would " lead to a manifest tribunal created by Parliament in absurdity." The Privy Council in the incorporated Railway Act to de-City of Victoria v. Bishop of Van- termine that very question, i.e., the couver Island (3), thus laid down Board of Railway Commissioners the principles which should govern for Canada. And it must not be the construction of the act in ques- overlooked that, since the granting tion: of the charter and the construction " There is another principle in the of the bridge thereunder, the Na-construction of statutes especially tional Government itself has ma-applicable to this section. I.t is thus terially increased the difficulty of stated by Lord Esher in Reg. v. navigation at this bridge by its Judge of the City of London Court large operations at the First Nar-(4), `If the words of an Act are rows already noted. clear, you must follow them, even In the Railway Act (cap. 68 of though they lead to a manifest ab- 1919) itself there is a much more surdity. The Court has nothing to pronounced " repugnancy or incon-do with the question whether the sistency " than in the Plaintiff's Act legislature has committed an (sec. 8) because the group of sec- absurdity. tions, 245-8, entitled "Respecting In my opinion, the rule has always Navigable Waters," begins by a gen-been this:—if the words of an Act eral prohibition s. 244 against "any admit of two interpretations, then obstruction in. . . . the free nevi-they are not clear; and if the one gation" of such waters, but never-interpretation leads to an absurdity, theless proceeds immediately and and the other case does not, the necessarily to provide for inevitable Court will conclude that the legis- obstruction by bridges and " other lature did not intend to lead to an structures" to be constructed (under absurdity, and will adopt the other secs. 247-8) as to the said "Board interpretation.' And Lord Halsbury may seem expedient for the proper (1) (1905) 11 B.C.R. 499. (3) (1921) 2 A.C. 384. (2) (1874) 9 Ch. App. 423. (4) (1892) 1 Q.B. 273, 290. (5) (1901) A.C. 102, 107.
58 EXCHEQUER COURT OF CANADA [1930 1929 protection of navigation " by proper of obstruction that the said authori- %,--• openings in spans and due provision zation permitted, and on this ques- BURRARD for draws and swings where neces- tion a large amount of evidence was I sary. What is the e" proper protec- given but with the result that such TUNNEL AND BRIDGE C o, tion of navigation in the particu- allegation has not been established V. lar circumstances is for the Board in proof. The only feature of it THE SS. to decide before granting an order that created any doubt in my mind Eurana. in accordance with the specified was in regard to the rock fill on the procedure, for construction, and sub- S. shore, the extent of which was Martin sec. (5) of 248 finally provides that: not as clearly defined as I should L.JA. " Upon the completion of any such wish by either party, doubtless work, the company shall, before owing to its nature and the unavoid-using or operating the same, apply able obliteration of the original to the Board for an' order authoriz- contour of the land and tidal marks ing such use or operation, and if at that point. But I have no doubt the Board is satisfied that its orders that even if it could be clearly and directions have been carried proved that the said fill is greater out, and that such work may be in extent that authorized neverthe-used or operated without danger to less that excess in size is " an en-the public and that the provisions of croachment of so trifling a nature this section have been complied that this Court would not interfere" with, the Board may grant such as was said by Lord Chancellor order." Cairns in Attorney-General v. Terry, This brings the case to a ques- supra, p. 431. That case has been tion of fact as to whether the Plain- unanimously adopted by our Na-tiff has procured the necessary tional Supreme Court in The Queen orders from the Board under said v. Moss (3), as " settling the law," sections, as to which a long contest and it approves the judgment below arose but no useful purpose would of Jessel M. R. The Court said, be served by here considering it in per Chief Justice Strong:— detail. It is sufficient to say, there- " Even if the bridge now in ques-fore, that in my opinion all statu- tion was of very great public benefit, tory conditions were fulfilled which whilst the prejudice it caused to the are necessary to support the valid- public as an obstruction to naviga-ity of the various orders of the tion was of the slightest possible Board that the Plaintiff relies upon, degree, it nevertheless would have and that it has in fact and without been an illegal structure amounting negligence constructed the bridge at to a public nuisance, which, as such, the site and in accordance with the the Crown might cause to be re-plans and specifications duly author- moved unless for other reasons it ized originally and later by alters- was not to be treated as a nuisance." tions in certain particulars validly In the case at bar there is no evi-approved. Such being the case no dence to justify a finding that any liability attaches to the Plaintiff for "prejudice" has been occasioned to the consequences of the proper the navigation of the bridge by the " construction, operation and main- excess in size (if such there be) of tenance" of its undertaking under the rock fill beyond what was law-its act of Parliament. Can. Pac. fully authorized as aforesaid. Ry. v. Roy (1); and Quebec Rail-In conclusion the following illus- way, etc. Co. v. Vandry (2). tration given by the Master of the The final point requiring particu- Rolls (in the course of his valuable lar consideration is that the bridge remarks upon the way obstructions is in fact not constructed in accord- in public harbours should be regard -ance with the said statutory authori- ed in the light of changing condi-zation but has substantially depart- tions) in Terry's case may appropri-ed therefrom in a way that has ma- ately be cited as some indication of terially increased the difficulty of how the difficult situation at the navigation even beyond the degree Narrows was doubtless viewed by (1) (1902) A.C. 220. • (2) (1920) A.C. 662, at 681. (3) (1896) 26 S.C.R. 322 at p. 332.
Ex. C.R.] EXCHEQUER COURT OF CANADA 59 the Board of Railway Commission- jury, if injury it be, to the naviga-1929 ers in their attempt to deal with tion, that on the whole a Court of `'-'' conflicting public interests in a prac- Justice may fairly come to the eon- BURRARD tical way which would best secure elusion that a public benefit of aINLET the greatest benefit to the public as much greater amount has been con- TUNNEL AND a whole: ferred on the public than the trifling BRIDGE Co. " Suppose you have a navigable injury occasioned by the insertion of TaE v ' S S. river, and it is necessary to cross it the piers into the bed of the river. Eurana. by a bridge, and the river is too In that case also it would be a pub- wide to allow of a bridge of a single lic benefit that would counterbal- Martin span, you must then put one or ance the public injury." L.J.A. more piers into the middle of the It follows that upon the whole of river. and, of course, according to 'this branch of the case the counter-the extent you introduce bridge claim must be dismissed and with piers or bridge arches into a navig- costs in accordance with the general able river, you to some extent rule. diminish the waterway, and to some I feel that I should not leave this extent, perhaps to a more or less case of exceptional importance and material extent, obstruct the navi- difficulty without adding a few gation. But it is for the public words in appreciation of the highly benefit at that spot that a public creditable manner in which it was road should be carried over the handled by the counsel concerned river by the bridge, and that benefit therein; their able work has been may so far exceed the trifling in- of great assistance to the Court.
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.