414 EXCHEQUER COURT REPORTS. [VOL XII. 1909 HIS MAJESTY THE KING, ON THE IN- June 24. FORMATION OF THE ATTORNEY-GENERAL PLAINTIFF ; ' FOR CANADA . AND WILLIAM SAMUEL CUNARD,.) ERNEST IALIBURTON CUNARD, CYRIL GRANT CUNARD, AND ERNEST D E BL OI S BRENTON, DEFENDANTS. EXECUTORS OF THE LAST WILL AND TESTA- MENT OF WILLIAM CUNARD, DE- I CEASED, AND LAURA C. CUNARD J Expropriation—Water-lot—Right of grantee to erect wharf—Interference with navigation—Constitutional law_ Held, following Wood v. Eeson (9 S. C. R. 239), that the Crown in the right of a Province, without le gislative authority therefor, cannot grant a water-lot extending into navigable waters so as enable the g rantee to construct or erect any wharf or other obstruction thereon that would interfere with navi gation. THIS was a case of expropriation of lands for the pur- poses of the Intercolonial Railway at Halifax, N.S. The facts are stated in the reasons for judgment. June 24th, 1909. The case came on for hearing at Halifax. R. T. 3lacllreith and C. D. Tremaint for the plaintiffs ; J. J. Ritchie, K. C., and G. Stairs for the defendants. Judgment was delivered at the conclusion of the hearing by CASSELS J.:— The action is brought on behalf of the Crown to have the value ascertained of certain property situate in Hali-fax at that part of the harbour called the Narrows. The defendants rest their title to the water-lot upon a grant
VOL. XII.] EXCHEQUER COURT REPORTS. 415 from the Government of Nova Scotia bearing date the 1909 17th July, 1865. By this grant a water-lot in front of THE KING their property running out to a distance of 240 freet from C UNARD. the shore line was granted to the defendants. At the Reasons for water end of this lot the depth runs in the neighbourhood Judgment. of from 20 to 25 feet. If the defendants have the right to fill up this water-lot, and to build a pier at the end of the water-lot, the pier would extend parallel to the shore, about somewhere in. the neighbourhood of 1800 feet in length. On ~ the evidence this would be a very valuable right. According to the evidence of the defendants' witnesses, with a right of access across the tracks of the railway, the value would be from $20;000 to $25,000. Evidence has been given of the value of other properties, namely, the Tully property not far away, the price for which was paid at a much less rate than that claimed was the value of the defendants premises. The difference between the Tully property and the property in question owned by the defendants is obvious so far as the value from a shipping standpoint is coucerned. In the case of the Tully property the frontage is about considerably less than one-fourth of the frontage of the Cunard property. The evidence is clear that the Cunard property is a unique property, having a frontage of 1800 feet. ° If they were at . liberty to build their wharf it would give them wharf accommodation for ocean-going steamers, something which could not be accomplished on a smaller tproperty. Although the comparisons between the two are not in line, it is one thing to say that a water-lot with a frontage of 100 feet can be sold for so much ; it is another thing to say a water-lot with a frontage of 1,800 feet with wharf accommodation and storage accommodation for large vessels is not of vastly greater proportion. As the case stands, it is conceded that there has been no Act of the Provincial Legislature authorizing the Gov-
416 EXCHEQUER COURT REPORTS. [VOL XII. 19°9 ernment to grant the water-lot. As far as I am con- THE KING cerned I am bound by the decision of the Supreme CUNERD. Court in Wood y. Esson (1). The effect of that Reasons for decision is that the Crown for the Province cannot Juagmexit' grant a water-lot extending into navigable waters so as to enable the grantee to construct or erect any wharf or other obstruction that will interfere with navigation, without legislative authority. When you assume that the depth of the water at the point in question would be from 20 to 25 feet in depth, it necessarily involves the interference with navigation of the harbour at Halifax. The point of the decision of Wood y. Esson by which I am bound, is that the grant in question would be void; it being admitted that there was no legislative authority for the grant. It becomes necessary, therefore, to consider the case as if the present defendants had not acquired the right to erect any structure. This will bring it down to the question of the value of the particular land as land—as to this I pass no opinion. The Crown has offered, and His Majesty has stated, that he is willing to pay the sum of $10,000. The value of these particular lots of land is less than the sum. of $10,000. It is not necessary to go into details and find how much less they are in value without the water than thq sum of $10,000. His Majesty having offered, through the Attorney-General of Canada, to pay this sum, I would not disturb the offer—and I think the sumof $10,000 is ample compensation for the rights which the defendant has, and the usual judgment will follow vesting the lands in the Crown subject to the payment of the $10,000. The tender having been sufficient the defendant has to pay the costs of the action. No interest is allowed. Judgment accordingly. Solicitor for plaintiff : T. Macllreith. Solicitor for defendant : W. A. Henry. (1) 9 S. C. R. 239.
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.