VOL. XVII.] EXCHEQUER COURT REPORTS. 441 HIS MAJESTY ,THE KING, ON THE INFORMATION 1916 OF THE ATTORNEY-GENERAL OF CANADA, Feb. 10. PLAINTIFF, AND THE GOVERNOR AND COMPANY OF ADVEN. TURERS OF ENGLAND, TRADING INTO HUD- SON 'S BAY, - - DEFENDANTS. Expropriation---Water lots Basis of valuation—Municipal assessment—Advantages—Wharf. The basis or starting-point for the valuation of water lots, 'expropriated by the Crown for the purpose . of wharf improvements, may be had from a municipal assessment of the property, takin g into consideration . the hi g her assessable value of the land owing to its . location, and the advantageafforded to the owners as a result of the ., improvements. , I NFORMATION for the vesting of land and compensation therefor in an expropriation by\, the Crown. Tried before the Honourable Mr. Justice Audette, at Winnipeg, January 26, 27, 28, 1916. H. E. Kennedy and E. Bailey Fisher, for plain- tiff. S. J. Rothwell, K.C., and H. A. Bergman, for defendant. AUDETTE, J. (February 10, 1916) delivered judg- ment. 1 • This is an information exhibited by, the Attorney,General of Canada; whereby it appears, inter alia, that certain lands, belonging to the defendants, were '
442 EXCHEQUER COURT REPORTS. [VOL. XVII. 1916 taken, under the provisions of the Expropriation TIIE KING 1). Act, by His Majesty the King, for the purpose of a THE HUDSON'S BAY CO. public work, namely, for an approach to a proposed Reasons for wharf on the Pas River, by depositing on October Judgment. 6th, 1914, a plan and description of such lands, in the office of the Registrar of Titles for the Land Registry District of Neepawa, in the Province of Manitoba, in which Land Registration District the same are situate. • The total area of the land taken—inclusive of the two pieces of land respectively described in paragraph 2 of the information—contains by admea-surement (0.13) thirteen one-hundredths of an acre. The Crown, by the information, offers the sum of $1,000 in full compensation for the lands so taken and for all damages resulting from the expropriation. The defendants at bar, by their plea, as amended at the trial, claim the sum of $5,500 for the lands taken and for all damages consequent thereto. The defendants' title is admitted. By expropriating the piece of land of (0.02) two hundredths of an acre—described in sub-paragraph (b) of paragraph 2 of the information, the access, by Larose Avenue, to the defendants' property has been absolutely taken away, and the expropriation made in that manner would, indeed, have resulted in very serious damages to the defendants' property. However, counsel for the Crown, acting under the provisions of sec. 30 of the Expropriation Act, filed at trial an undertaking dedicating to the public for the purposes of a public road or highway for ever this piece of land of (0.02) two hundredths of an acre. As a result of such undertaking the parcel of land marked "A", on plan "C", will now
VOL. XVII.] EXCHEQUER COURT REPORTS. `. 443 ' be used by the public and the defendants as a con- 1916 tinuation of Larose Avenue, leaving thus free, open Tu. RING and untrammelled, the access to the defendant's pro- TI I cs.N'S perty by that avenue. Reasons for t Judgment. This undertaking removes entirely from the consideration of this case the question of , damages, , leaving for adjudication only the questiomy of the value of the lands taken. On behalf of the defendants the following witnesses were heard: Auguste de Tremaudan, eliminating the question of damages, and the rights of wharfage, valuing the lands taken at $5,000. • Neil T. McMillan values Plot "B" at $1,925, and • Plot "A"• at $760--in all the sum of $2,685, eliminating the two elements above mentioned. Under similar aspect, C. S. Tyrrell, values Plot • "B" at $1,900, and Plot "A" at $760—making in all $2,660. • George M. Brown values the two plots at $2,500— although "upon being asked by the Crown to placé a value upon the land, his valuation for the same, as appears by Exhibit No. 6, is only $1,000. This witness 's mentality and judgment are obviously affected by the interest of the' party who calls upon him for the expression of his opinion, a circumstance which will necessarily go to make his valuation of very little use and reliability. Eliminating wharfage rights and damages, witness Harry C. Beatty values ' the two pieces of land at $7,000. There was some further evidence on behalf of the defendants with respect to the general facts of the case. On behalf of the Crown the following witnesses . , were heard
444 EXCHEQUER COURT REPORTS. [VOL. XVII. 1916 C. H. Anderson and David E. Brown, who placed TILE KING a value upon the two plots at the total sum of $1,000. TIL BH N'S co Henry Elliott, the secretary of the Town of Pas, Reasons for states that the defendants' property, containing 3.30 Judgment. acres, was assessed in 1914, at the sum of $30,000. In 1915, exclusive of buildings, the land was also assessed at $30,000. The original valuation of the assessors for that year (1915) had been $40,000, but was reduced by an order of the court to $30,000. Two of the defendants' witnesses, de Tremaudan and Beatty, hold substantial interests in real estate at The Pas for speculative purposes, and I venture to say that their valuation is based more on speculative value than upon the real market value. G. M. Brown's testimony, for the reasons given above, must be eliminated. Then we remain with the disinterested evidence of both McMillan and Tyrrell at $2,685 and $2,660 respectively, based upon the market "value of the property, as against the evidence of the Crown at $1,000. To reconcile this conflicting evidence recourse should be had to the municipal assessment to be used only as a basis or starting-point. Although such assessments are under the statute directed to be made at the actual value of the property (R.S.M., ch. 117, sec. 29), it must be taken to be so done in a conservative manner. Tinder the municipal basis for the 3.30 acres at $30,000, the (0.13) thirteen one-hundredths of an acre would represent a valuation of about $1,181.81. Using this as a starting-point, one must consider that a small piece of land, carved out, as it is in the present case, in an irregular shape, with the base of the triangle abutting on the river, the apex of the triangle where the property is worthless, cut in that shape, would call for a larger
VOL. XYIL] EXCHEQUER COURT REPORTS. 445 price than the regular piece of land.: Hence, the 1 916 proper valuation of a parcel of land taken in that THEY ING shape would be assessed at a higher ,figure than TaBx cotes where the whole of, the property or a large ,part dg âsû or thereof is taken, and also at a higher figure than ' the municipal assessment made, as said before, in a conservative manner. -The defendants own the land abutting on the river, but they are not proprietors of the part covered by the water and have no .right to build wharves or make any erection in the river, without leave from the Crown. Gillespie v. The King.' This prospective public work, this wharf which the Crown is now putting up, will be of great ad- vantage- to.the defendants. • Taking all these circumstances into consideration, I hereby Assess the value o,f the land. at the sum of $1,700, to which should be added 10% for the .compulsory taking of the same against the wish of the .owner, making in 'all the sum of $1,870.' Therefore, there will be judgment as follows : • 1st. The lands expropriated' herein are declared vested in. the. Crown since the 6th day of October, 1914. 2nd. The compensation for the land taken, and for all damages resulting from the said expropriation, is hereby assessed at the sum of $1,870, with interest thereon at the rate of five per centum per annum, ` from October 6th, 1914, to the date hereof. 3rd. The defendants are entitled to be paid the • said sum of $1,870, with interest as above mentioned, upon giving to the Crown a good and sufficient 112 Can. Ex. 4.06. 34.
446 EXCHEQUER COURT REPORTS. [VOL. XVII. 1916 title, free from all mortgages and incumbrances T"E v K . I NG whatsoever. Tx$ AY Co. 's BAY CO. 4th. The defendants are further entitled to the Reasons for Judgment. rights and privileges mentioned in the undertaking filed at trial herein. 5th. The defendants are further entitled to their costs. Judgment accordingly. Solicitor for plaintiff : E. B. Fisher. Solicitors for defendants: Rothwell, Johnson, Bergman & McGhee.
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.