June 16, 1903

CON

Frederick Debartzch Monk

Conservative (1867-1942)

Mr. MONK.

As I understand my hon. friend from Toronto, he wished to have time to draft a clause which will protect not only the municipality of Toronto but municipalities generally.

On section 194,

Whenever any municipality desires to obtain means of drainage, or the right to lay water pipes, or other pipes, temporarily or permanently, through, along, upon, across or under the railway, or any works or lands of the company, such municipality may make application for leave therefor to the board, and upon such application, shall submit to the board a plan and profile of the portion of the railway to be affected, and the board may grant such application, and may order how, when, and on what terms and conditions such drainage may be effected, or pipes laid, and thereupon such municipality may construct the works necessary to carry out such order under the supervision of such official as the board designates, or, at the option of the company, if>

communicated to the board upon the hearing, the company may be

ordered by the board to construct such works, and carry out such directions, under the like supervision.

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LIB

Mahlon K. Cowan

Liberal

Mr. COWAN.

Before that clause is adopted, I desire to draw attention to the fact that last year, as well as this year, I introduced Bill No. 19 respecting drainage on and across the property of railway companies. Neither clauses 194 nor 195 meets the requirements which that Bill is intended to meet. Under the law, as it now stands and as proposed by this measure, before you can effectually drain the lands of a municipality or an individual land owner, the parties must go before the Railway Committee of the Privy Council or before the Board of Railway Commissioners. I venture to say that there are very few' applications, either by a municipality or private land owner, made to the Railway Committee of the Privy Council for permission to drain across the lands of a railway company. In Essex and the western counties, an enormous amount of money has been invested in drains. I make the statement, and defy a successful contradiction, that in the county of Essex to-day there has been more money invested in private and public drains than in railways, and be it remembered that there is more money invested in railways in that county than in almost any other county in the entire province of Ontario. That county is cut east and west by the three great trunk lines, the Michigan Central, the Grand Trunk Railway and the Canadian Pacific Railway, as well as by the Lake Erie, which is now a portion of the Pere Marquette system. In addition there are two cross roads, one along the western and one along the eastern portion of the county. So that the county is cut by five railways. Yet there has been more money invested in public and private drains than in railway construction. The land in that section is thoroughly flat land. There are but a few acres in any township which are not under assessment for outlet in addition to their own private drains. In fact the county is cheekboarded with ditches every twenty or thirty rods, and the assessment raised from seventy-five cents to $3 per acre for the drains to carry the water off to lake St. Clair or some other satisfactory outlet.

In addition to that, on account of the silt and natural accumulations that will get into a drain, these drains must be renewed once in from five to seven years, or ten years at the outside. The result is that the land of this county, at a fair average is under taxation of $1 per acre. If it were not for a most favourable climate and a prolific soil, it would be left an absolutely barren country to-day by reason of the immense amount of money that is levied on the farmers annually to pay the drainage taxes. Now. the fall of the land generally is toward the north and east. The great trunk lines of railway run along the northern

border of the county. It may be said that the railways are not entitled to block up a natural watercourse. But you must remember that the railways went through that country many years ago before the land was cleared, and in addition to that, it is a flat country, in which the water-courses are miles and miles apart. You will travel fifteen miles, perhaps, and not find a natural water-course running into lake St. Clair, that is a natural water-course as defined by the courts of this province. The water flows gently over the land in depressions or swales, and when the land commenced to be cleared up and cultivated, these watercourses-what would then be called natural water-courses under the law-were wiped out of existence. Thus, when a municipality or farmer wants to find an outlet to the drain, he must come before the Railway Committee of the Privy Council. I venture to say there are not fifty per cent even of the members of this House, or fifty per cent of the members of the legal profession in this province or any other province in the Dominion, who know the procedure necessary in order to come before that tribunal. I know of but very few applications that have been made from the counties I speak of to the Railway Committee of the Privy Council for permission to drain under the lands of the railway companies. And, under section 195, it is only as an outlet for drainage works that application can even be made to that body by a landowner. So. where a man's farm is cut in two by a railway-the land everywhere in that section having a fall of from three to nine feet to the mile-it is absolutely impossible for him to drain under the line of railway without coming before the Railway Committee of the Privy Council, and no farmer, or, at all events very few. will make that application. The result is as I saw when coming down here a few weeks ago. All along the lines of these railways, almost as far southward as the eye could reach, the land was submerged because of the imperfect drainage under the lines of the railway companies. I do not desire to take up the time of the committee by multiplying examples, but I wish to make the statement that the person whose land is cut in two by a railway corporation stands in an entirely different position from the man who has made a sale of his land to an individual. The railway company expropriates a man's land : the man has no option, but is compelled to sell. And I can name instances in the county of Essex to-day in which, after a railway company had gone through the land of a farmer, and the farmer desired to get drainage under that railway, the amount demanded by the railway company to allow drainage of the upper half of the property was a greater amount than the company paid for the entire portion of the land they took. The result is that these men are taxed thousands and thousands of dollars to carry the water in

a lateral direction, east or west, whatever way the water tends to flow, until it strikes a natural water-course, which then passes under the railway. The effect is that, supposing the fall of the land is to the north, at say, six or seven feet to the mile, when you have to take the water in a lateral direction, you find the land almost a dead level, and, in case of a freshet or heavy fall of rain there is not sufficient fall to take the water off the crops before the crops are materially damaged. This is a matter of most vital importance to the western counties. There is no question of tariff, no question of railway bonus, no question of railway construction or government ownership that can commence to affect those parts equally with the question of drainage.

Now, I find, in looking over the laws of tlie different states of the Union, that their procedure is much more simple than ours. In nearly all these states they have what is called a county drainage commissioner, so that a person does not have to make application to the federal authorities, or the state legislature, or even the state railway commissioners, but the county commissioners generally have jurisdiction over matters of that kind. Now, I find in the laws of the states of Michigan, by Act 254, section 10, as follows :

Whenever it is necessary to run a drain across the right of way or road-bed of any railroad, the same proceeding shall be had throughout in all respects, as in all cases provided in this Act for obtaining private lands for the construction of drains except as hereinafter provided. It shall be the duty of the railroad company when notified by the county drain commissioner so to do. to make and maintain the necessary opening through said road-bed, and to build and maintain a suitable culvert. Notice in writing to make such opening, and to construct such culvert shall be served upo_n such company by leaving a copy thereof with the ticket or freight agent, or general officer of such railroad company, at least thirty days before such railroad company shall become liable.

And section 17 provides that if the railway company fails to comply with the provisions of section 16. it shall pay a fine of $10 for each day's refusal or neglect to make such opening and construct such culvert, and the prosecuting attorney shall prosecute the complaint. It will thus be seen that drains can be constructed across the land of a railway in the state of Michigan by the same procedure as is followed in making a drain across the land of a private citizen, and that the necessary culverts must be made by the railway companies at their own expense and for ail time maintained by the railway company at their own expense. Now, I know of no state in the Union which affords a better comparison with the western counties of Ontario, so far as the lay of the land is concerned and so far as the quality of the land is concerned, than the state of Michigan. It lies contiguous to the western counties, and the very same conditions very largely prevail,

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LIB

Mahlon K. Cowan

Liberal

Mr. COWAN.

at least in the southern portion of the state of Michigan as prevail in the western portion of Ontario.

Then, I find that in the great state of Illinois, the provision is even more drastic. The fifth subsection of the twentieth section of the statute respecting the incorporation of railways says :

Provided that in no case shall any railroad company construct a road-hed without first constructing the necessary culverts or sluices as the natural lay of the land requires for the necessary drainage thereof.

So that, in the state of Illinois in the construction of their road-bed the railroad companies are prohibited from completing the construction without first making the necessary openings or culverts for the proper drainage of the land such as the necessities of the case require.

Then, I find in the state of Minnesota that chapter 34, section 2697, is as follows :

That whenever a railroad is now laid out, opened or fenced through the farm lands of any such owner thereof, leaving a part of such farm lands on both sides of such railroad, such owner is authorized to construct a crossing under, over or across such railroad for the necessary passage of stock therein ; and whenever any owner of lands adjacent to the right of way of any railroad company finds it necessary to drain the same and to continue such drain or drains across the right of way of any railroad company, such owner is hereby authorized to construct such drain through the right of way and under the track or tracks of such company ; but said crossing and drains shall be constructed at said owners' expense, and after so constructed the said crossing or crossings shall be maintained and kept in good repair at the expense of the owners of such railroad. In all cases before constructing such crossing or drain, the owner of the land shall serve upon the railroad company a notice in the manner provided for serving a summons in a civil action. stating in detail the work which the owner desires to perform under the provisions of this Act. Within sixty days from the service of notice the railroad company may do such work at the expense of such owner.

So that in the state of Minnesota the law prevailing is that the culvert must be constructed by the railroad company, but at the owner's expense, within sixty days, and failing that, the owner of the land shall construct it, and the culvert or drain afterwards must be kept in repair by the railway company. The procedure is hy serving a notice on tlie railway company the same as in a civil action. I find in the state of Missouri section 1110 is as follows :

It shall he the duty of every corporation, company or person owning or operating any railroad or branch thereof in this state, and of any corporation, company qr person constructing any railroad in this state within three months after the completion of the same through any county in this state, to cause to be constructed and maintained suitable ditches and drains along each side of the roadbed of such railroad to connect with ditches, drains or watercourses. so as to afford sufficient outlet to drain and carry off the water along such railroad

whenever the draining of such water has been obstructed, or rendered necessary by the construction of such railroad.

And if they fail an action shall be commenced in the court having jurisdiction to compel them. So that every railroad in the state of Missouri must, within three months from its construction, not only drain its own road-bed, but shall construct lateral drains affording sufficient outlet to drain and carry off the water along such railroad whenever the draining of the water lias been obstructed or rendered necessary by the construction of such road-bed, and this must be done at the expense of the railroad company. Then I find in the state of Texas, under the heading ' Right of way ' article 4430, is as follows :

In no case shall any railroad company construct a roadbed without first constructing the necessary culverts or sluices as the natural lay of the land requires for the necessary drainage thereof.

This is an exact copy, I may say, of the law of the state of Illinois, by which, when the lay of the land is such that the natural drainage is towards the line of the railroad, the company is compelled to construct and maintain all the necessary culverts and sluices to permit the water to pass through, and those culverts and sluices must be of sufficient dimensions and so constructed as properly to drain the lands.

Then, I find in the state of California that while there is no statute law there, the railroad companies exercise the same control and dominion which any other owner of land has a legal right to exercise. This precise question was decided by the Supreme Court of the State of California on the 2nd day of June, 1902, in the case of Sanguinettl vs. Bock, in which the court held that :

The owner of upper lands has an easement for the discharge of surface water caused by rainfall as it is accustomed naturally to flow over the surface of lower adjacent land, and the owner of the lower land has no right to interrupt such flow to the injury of the upper owner.

Thus in the state of California the railroad company, if they construct a roadbed preventing the natural flow of water, is liable to damages, and they are therefore compelled to provide proper drainage at their own expense, or pay damages to the farmer which he lias sustained by reason of that construction. I may say in passing that this is what is known generally as the law of dominant and servient tenement. That does not prevail, even in the province of Ontario. The province of Ontario, therefore. is that much worse off than the state of California. In the state of California the owner of the upper lands is entitled to the unimpeded natural flow of the surface water across the land of the adjoining owner lying further down. In the province of Ontario no such law exists, ns the hon. member for Hastings well knows,

for in a late case decided by the Court of Appeals in 1897, Ostram vs. Sills, it was expressly held that no such law exists in this province. Then I find in the state of Iowa :

When any person who is the owner of any swamp, marsh or wet lands which, on account of its condition, may endanger the public health, or is not for that reason in a proper condition for cultivation, shall desire to construct any open ditch or other underground drain for the purpose of draining such swamp land through the land of another

Then follows the procedure, which is a local procedure, and practiced by serving a summons as you would iu a civil action, which is the cheapest and most effective kind. Then it goes on to state :

Whenever a railroad crosses the land of any person or persons who desire to drain their lands for any of the purposes set forth in this section, the party or parties desiring such drain or drains shall notify the railroad company by leaving a written notice with the nearest station agent, stating in such notice the starting point, route and termination of such drain or drains, and if the railroad company refuse or neglect for a space of thirty days to dig across their fight of way a drain of equal depth and size of the one dug by the party who wishes to drain his land, the railroad company shall be liable for the cost of the construction of such drain, to be collected in any court having jurisdiction.

So that in the state of Iowa a railroad company must construct a drain across their lands the same as a private individual, but at their own expense, to connect with the drain on each side of the railroad, to allow for sufficient drainage to properly cultivate the land, even though that land may be marsh or swamp land, and the drain must be as large and as deep as the drain with which it connects. Then I find that in the state of West Virginia, while they have no statute law, the general law is that the railroad company must at all times leave the drainage as free as it was before the construction of the road, and if, by reason of the construction of the road through lands, they obstruct the drainage, they are liable to him who is damaged thereby.

Therefore, practically in the state of Virginia the law of dominant and servient tenement is in force. Then in the state of Colorado, under article 15, section 8, of the constitution, it is provided that no corporation has a right to conduct their business in such a manner as to infringe the equal rights of individuals, or the general well-being of the state. As the state commissioner of Colorado, in a letter to me says, the railroads were the pioneers in that country in putting in drainage crossings, and by section 3 of the article of the General Assembly of the state of Colorado, the charter of any railroad company can be revoked by the assembly in the event of their so conducting their business as to result in-

juriously to the proper development of the state and the proper development of the farming lands.

Now, in all the states a railroad company is prohibited from blocking up the watercourses. In a large number of the states there is special legislation compelling them, not only properly to drain the land under the roadbed, but to construct drains to connect with the drains on either side, and they must do it at their own expense and must subsequently maintain these drains at their own expense. In the United States there are a large number of states in which no drainage legislation is necessary, as in some provinces of Canada. Take, for instance, British Columbia, I venture to say that the drainage question does not affect probably a hundred acres of land in that large province. In the province of Quebec you hear little or nothing of it. There is no drainage in the province of Manitoba, or throughout the North-west Territories except for irrigation purposes. For instance, the states of Idaho, Utah and Montana, and some others, are arid states, and the only drains necessary to construct in those states are drains for the purpose, not of carrying water off, but for the purpose of carrying water on to the lands for the purpose of irrigating it. But, in every state in the American Union, wherever it is necessary to construct drainage works for the proper cultivation and tilling of the soil, the private landowner or the individual, has exactly the same rights as against the railway company which be has against any other landowner who seeks to block the How of water, and if it is necessary for him to invoke the municipal or any other machinery in order to enforce that right, then, that machinery is of the simplest and most effective kind and he does not have to knock at the door of either the House of representatives or of any of the state legislatures, but he can take the same proceedings to carry drainage across the lands of railway companies as to carry drainage across a farm or other land the property of the private owner. Without taking up tihe time of the committee, the amendments which I propose are to be found very largely in Bill No. 19. Bill No. 19 is a Bill by which I proposed to>

amend the Railway Act, but as this general Railway Bill was coming before the House I thought it advisable not to press the matter before the railway commission, because, then, if my Bill did become law before this Bill of the hon. minister became law, it would only be law for a few days. I therefore thought the better course would be to seek to amend the Bill now under consideration. I propose to strike out sections 194 and 195 and to substitute the following sections which will be numbered 194, 195, 196, 197 and 198, as follows :

In this Act, unless the context otherwise requires :-*

(a.) The expression ' engineer ' includes a civil Mr. COWAN.

engineer, provincial land surveyor, and any person authorized by the law of the province to lay out, report upon or prepare plans, specifications or estimates of a drain or drainage work ;

(b.) The expression 'judge' means any judge of a court of record having jurisdiction in the county or district in which the proposed drainage work or any portion thereof is situated ;

(c.) The expression ' drain ' or ' drainage work ' means and includes every kind of ditch, drain, or sewer, open or covered wholly or in part, and whether in the channel of a natural stream, creek or water-course or not, and also the work and material necessary for bridges and culverts :

(d.) The expression ' railway company ' means a railway company subject to the legislative authority of the parliament of Canada.

195. Subject to the provisions of section 195 to 19S of this Act, .municipalities and landowners shall have the right of drainage on and across the property of any railway company to the same extent and by the same proceedings as they have by the law of the province in which the property is situated on and across the property of any other landholders.

196. Where no provision is made by law for

hearing the parties interested

That does not apply to the province of Ontario, because we have a very clearly defined ditches and water-courses Act and in this province notice is necessary.

Where no provision is made by law for hearing the parties before the laying out of the drainage work, and for an appeal to a judge or other officer, the engineer shall, before making his report or laying out the drain, notify, in writing, the railcvay company, by serving notice upon the agent of the company nearest to the proposed work, of a time and place convenient to the proposed drainage work to consider the location of the drain on the railway company's lands, the specifications and cost of the work to be done on the railway lands, and the proportion of the cost to be borne by the railway company.

2. Such notice to he given at least ten days before the time appointed for the meeting.

3. If the engineer and the representative of the railway company agree upon the matters aforesaid, they shall sign their agreement, and it shall be incorporated into the engineer's report and shall be given effect to in the construction of the work.

4. Should they fail to agree, they shall refer the matters1 in question to a judge, who shall, after such notice as he deems reasonable, determine the matters in question ; and the decision of the judge shall he final, and shall be incorporated into the engineer's report, and shall be given effect to in the construction of +he work.

5. The costs occasioned by the meeting and by the reference to the judge shall be borne by the drainage work, or shall be apportioned between the drainage work and the railway company, as agreed upon or as decided by the judge.

6. The proportion of the cost of the drain across or upon the railway to be borne by the railway company shall be based upon the increase of cost of such work caused by the construction and operation of the railway.

7. In the event of no representative of the railway company attending pursuant to the engineer's notice, his decision shall be final and binding on the railway company.

197. Whenever any drainage work

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CON

Haughton Lennox

Conservative (1867-1942)

Mr. LENNOX.

I hope that the Minister of Railways and Canals will see his way to adopt substantially the amendments proposed by tlie bon. member for South Essex (Mr. Cowan). I am well aware that there is very great necessity for a change in the law in this matter. I know it from cases that have come within my own personal knowledge, and I know also that a strong feeling exists in the country in favour of a change in the law. I have had a great many letters urging this both last session and this session, and I do not know what the significance of it is, but the greater number of these letters were from supporters of the present government. I do not know that they are entitled to quite so much

weight on this account, but at all events,

I replied to these gentlemen that the member for South Essex had brought the matter up ; that I had given his Bill some consideration, and that I believed it would bring about a very necessary change in the law. It is quite true that in the province of Ontario we have what I might call fail drainage laws. We have the ordinary drainage law, adapted to the larger drainage undertakings, and we have the Ditches and Water-courses Act, and, supplementing this, as applied to railways, we have what is called the Railway Ditches and Watercourses Act, which is to be read as part of the ordinary Ditches and Watercourses Act. The difficulty is that we have not been able to apply these Acts to railway companies incorporated by the Dominion parliament.

More than this, and increasing the difficulty, we have this circumstance, that from year to .year we have been declaring that other railway undertakings are ' works for the general advantage of Canada,' and wherever this has been done the provincial drainage laws have ceased to apply. Only a few months ago a municipality in my riding was confronted with a very serious difficulty in connection with the drainage of lands, having brought down its drainage works to the railway, and being prevented, without the permission of the railway company, from finding an outlet.

I have no charge to make against the railway company in this instance, or against railway companies generally. They have a right to stand behind the statute laws which we give to them, and as long as they only do this, we have no right to complain ; but we were met with this difficulty, that we had to submit to the terms which the railway company saw fit to impose. Now, we have the proposition of the hon. member for South Essex (Mr. Cowan) that we shall place the government of this matter under the various provincial statutes. That, in the main, is, I think, the remedy required. There may be some need of improvement in provincial legislation : but it is absolutely necessary, I think, that we should give landowners and municipalities the advantage of the provincial statutes in the various provinces. Instances have been given by the hon. member who introduced the amendment, and a great number of other instances may be given, of the disadvantages people have laboured under in this regard. In all cases where a railway passes through a rural section of the country, it is sure to pass over valleys where there is natural drainage from one part of a man's farm to another, which, by reason of the construction of the railway, becomes blocked. The law as quoted by the hon. member, as being applicable to several states of the American union, seems to be what should have been the law in force from the time we commenced to construct Mr. LENNOX.

railways. I know, in connection with the pioneer railway of this country, the Noith-ern Railway of Canada, now owned by the Grand Trunk Railway Company, that instances occurred as far back as tool, in which the drainage of a man's property was so cut off that he was absolutely unable to cultivate sections of his land adjoining the railway property, and this difficulty m several instances exists to the present day. What is true in reference to that railway is true in reference to a great many others. What I submit is, that the true principle has been read from quotations this afternoon, that is, that the natural flow of the water, the natural drainage, whether this is what we regard as ' the common enemy,' namely, the surface water that falls on land adjoining the railway, or the ordinary streams of the country, should flow unimpeded by any works executed by the railway company. At the time the railway company carries through its works, the farmer has his lands, and the_ railway company comes in and occupies a certain portion of them. He has the means of drainage without impediment of any kind. When a railway is hereafter constructed. it should be constructed m such a way that it shall cause no impediment to the natural flow of water ; that wherever it is necessary, a culvert or other opening shall be in the first instance constructed by the railway company, and thereafter maintained at its expense ; that as regards a railway now in existence, it shall, as nearly as possible, be put upon the same basis ; that the provincial Act in force and such provincial legislation as may be from time to time enacted shall apply ; and that the railway companies shall be put on the same basis as other landowners in that regard. With reference to the amendment, It seems to me in the main to coiei the ground. There is a provision however as to the expense of the work which as the mover pointed out, only applies where there is no provincial legislation. This provision should be, not of limited but of universal application. It is provided in subsection 6 of section 4 :

The proportion of the cost of the drain across or upon the railway to be borne by the railway company shall be based upon the increase of cost of such work caused by the construction and operation of the railway.

I do not understand that the provincial Acts put it on this principle, because, in the main, thev are not dealing with railway questions, and this is a phase of the question which I submit the hon. Minister of Railways will require to consider. In the provincial Acts the basis on which the expense is apportioned is mainly on the con-structionof the benefit which each party will derive from the construction of the drainage work and in this case it is perfectly manifest that this would not be a fair principle upon which to assess the cost. The railway eom-

pany could very justly say, we derive no benefit from the construction [DOT] of this work beneath our railway or to or from our railway lands, and therefore, as we are only to pay in proportion to the benefit we derive, we have not to pay at all.

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IND

Leighton Goldie McCarthy

Independent

Mr. MCCARTHY.

Does not subsection 6 of section 4, as proposed by the hon. member for South Essex, cover that ?

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CON

Haughton Lennox

Conservative (1867-1942)

Mr. LENNOX.

That is the section I have just referred to. If that were of general application, of course it would cover the whole case as suggested by the hon. member for North Simcoe (Mr. McCarthy), but that is a provision which only applies in those cases where there is no provincial statute, and in Ontario, where we have provincial legislation, we have to refer to that legislation in order to ascertain our rights. In the province of Ontario we assess the parties in proportion to the benefit they derive. If you leave the legislation exactly as it is in that province, you will be apt to be met with this difficulty, that however we may view the amendment proposed, we will be in this position, that the railway company, as regards the most expensive part of the work, namely, carrying a drain under the railway property, will escape. Whereas the true principle is that the railway which causes the obstruction should pay a proportion of the cost of the drainage, based on the increased cost of the work caused by the construction and operation of the railway. Again I submit that what we require is not that we shall always have to go to the board of commissioners for redress, but that the principle of decenter-aliz'ation, or the local administration of these matters-the doing of the work at home as much as we possibly can-is the one that should be followed ; and I therefore argue that in adopting the amendment of the hon. member for South Essex (Mr. Cowan), you not only introduce useful legislation, by incorporating the provincial laws governing railway drainage, but you bring these matters before a tribunal better adapted to deal with them than the one proposed by this Bill. In my opinion, it is not wise or necessary that parties who have grievances in this regard should be compelled to come to Ottawa and submit them to the railway commission. It is true, as the hon. member for South Essex says, that all the objections and all the difficulties which obtained with regaikd to the Railway Committee of the Privy Council would apply to the railway commission.

Mr. McCarthy. In the greater part of what my hon. friend from South Simcoe (Mr. Lennox) has said I entirely agree. There is no doubt that demands are being made very strongly by landowners whose properties are adjacent to railway lands for a remedy or a measure by which thev

can obtain the right to drain under railway lands. The machinery at present is too cumbersome for them to take advantage of it. That is proved by the fact that the rights now given them are so seldom exercised. It entails very serious expense to present a case before the Railway Committee of the Privy Council in respect of a drain which might only cost $100 or thereabouts. I do not say that the machinery is any more complicated than it should be, but the expense of coming to Ottawa and presenting the case before the Railway Committee of the Privy Council is greater, in many cases, than the remedy sought would justify. In saying that, I wish to acknowledge that the Railway Committee of the Privy Council has been very satisfactory as a whole, and the only reason why there is a demand for a railway commission is because the people living in distant parts of the different provinces find it too expensive to come to Ottawa. I understand that this commission will be an itinerary one, and it might be suggested that the commissioners should travel about from place to place and hear the different complaints. I fear, however, that that would not be a satisfactory solution, because the travelling expenses of the commissioners would not often be justified by the amount in dispute, and the landholder would be deprived of a remedy. Therefore, I am heartily in accord with the amendment suggested by my hon. friend from South Essex (Mr. Cowan), namely, that the reference be made to the local judge of the county. That would be the easiest way of disposing of the matter. Both parties can be represented, and the machinery is simple and inexpensive. I quite agree with the hon. member for South Simcoe (Mr. Lennox), if his conclusion with regard to the suggested amendment is correct. I have not had sufficient time to consider it, to say positively that it is incorrect, but I go this far with him, that I think section 6 ought to be made to apply to all drainage works on or across railways, and that if a railway company should only be assessed in proportion to the benefit it derived from the work, inasmuch as it would be practically of no benefit to a railway to have that drain underneath its line, the adjacent landowner would have to pay the whole expense. In most of the states of the Union, the railway companies have to bear the cost of such drainage works. The reason is plain. They are the cause of the obstructions which prevent the natural flow of water, and should bear the expanse of carrying off the water they have obstructed. If that be admitted, then in the majority of cases the railway company should bear the largest proportion, if not the whole, of the expense. I do not think that I need further take up the time of the House, especially in view of the exhaustive speech made by my hon. friend from South Essex, who has so well represented the cause of the landown-

er. Suffice it to say that representing my constituency, a certain portion of which is aggrieved by reason of the obstruction caused by railways, I am heartily in agreement with the amendment.

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?

The MINISTER OF RAILWAYS AND CANALS.

I have followed the observations of my hon. friend from South Essex (Mr. Cowan) with a great deal of attention and interest and I recognize that there is a good deal of force in much that he has said in support of the amendments suggested by him to this Bill. The committee, however,

I think, would not expect me to be prepared to express any definite opinion as to the advisability of incorporating these amendments either as a whole or in part or in the form or language which the hon. gentleman has chosen. The question is of very great importance indeed, and I think that every one of these sections would need to be thought over .a good deal before we should be justified in reaching a conclusion upon them or making them the law of the land. I am sorry to know, from the remarks which have dropped from all the speakers, that there is such an unwillingness to utilize the machinery that has already been created by the Railway Committee of the Privy Council to afford relief to the people in these cases. For I am very strongly of opinion that a more effective, simpler, less expensive and prompter means of affording relief cannot be devised. It is true that the people who wish to have drainage facilities under railways have not applied to the Railway Committee of the Privy Council in any considerable number. I believe that only in three or four instances have applications been made since we passed the last amending Act in 1900. But, though the applications have been few, the facility with which the people got just what they wanted without coming to Ottawa, without sending lawyers to Ottawa, and the satisfaction which they have had has been expressed to me in very strong terms by the people whose cases have been disposed of. The results have led me to conclude that if the people generally would only avail themselves of the means the existing law affords them, what they wanted done would be done satisfactorily and inexpensively. Novy, we have provided -and we have acted upon the proviso- that if anybody communicated with the department stating that they desired to have drainage facilities under a railway, we would send an engineer immediately to the locality to verify the necessity. Then the two engineers get together, ascertain the facts and conditions and find out what can be doife by agreement if possible. An agreement has been arrived at in every one of the cases we have had before ns under our amendment Bill. The parties were able to settle and settle promptly. It is very simple indeed to send an engineer to investigate such matters. And, In cases of this kind, Mr. McCarthy.

involving questions of the character of the structure of our great railways, the matter should be entrusted to a railway engineer. The road-bed of the railway must be maintained in all its solidity and strength if life and property are to be protected. My hon. friend (Mr. Cowan) proposes that a land surveyor shall determine what the character of these works shall be. We cannot realize,

I think, the gravity of the responsibility we are assuming when we provide that a land surveyor shall be chosen to determine a matter of that kind. In fact, it need not be a land surveyor under my hon. friend's proposal, but any person authorized by the law of the province. So, it would be left to the law of the province to decide who was the proper person to prepare plans for the construction of drains under railways. We must seriously consider that before we make it the law of the land. It seems to me a matter of very great regret that it has become necessary in the opinion of so many people, as expressed by my hon. friend from Essex, that we should incorporate provincial machinery as a means of affording relief, when relief is so easily obtained under the machinery already provided. Suppose my hon. friend had a piece of land that he wished to drain under a railway. All he would have to do would be to write a letter stating the case and asking the attention of the department to it. An engineer would be sent at once. The expense could hardly be less, for it only requires a two cent postage stamp to pay for the letter,-in fact, it does not require even that, for you can write to the department for nothing. Can any one conceive of provincial machinery that will be more efficient or less expensive 1 When you have an engineer of knowledge and experience he can tell at once what kind of works can be adopted for the drainage of land under a railway without danger of weakening the road-bed.

Topic:   THE RAILWAY ACT, 1903.
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LIB

Mahlon K. Cowan

Liberal

Mr. COWAN.

I would like to say at once to the hon. minister (Hon. Mr. Blair) that there is no intention on the part of myself or the people who seek drainage under railways to do anything that would lead to the impairment of the strength of the road-bed of anv railway. The people are quite willing that plans and specifications for the construction, even of private drains shall be submitted to the Railway Department. But they want to be able to deal with the initial machinery at home and carry on the inspection and argument there, without being obliged to pny counsel to come four or five hundred miles to Ottawa. I admit that parliament has done all that lay in its power to simplify the machinery, consistent with maintaining the procedure and allowing the argument to take place before the Railway Committee of the Privy Council. But, notwithstanding that they have done that, that procedure and these attempts have resulted in absolute failure. And I say that there

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are thousands of acres of land that are at times inundated and will remain inundated to the end of time, if the owners must use the machinery of the Railway Committee of the Privy Council for the simple purpose of securing the construction of a drain that may, perhaps cost fifty dollars. As long as that cumbrous machinery exists the people will lie under this injustice rather than travel here to Ottawa or ask counsel to c-ome here to plead for special drainage.

Topic:   THE RAILWAY ACT, 1903.
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The MINISTER OF RAILWAYS AND CANALS.

While I have every desire to give effect to what the hon. gentleman (Mr. Cowan) says, to understand it and to yield to his argument, I am at a loss to know what he means by talking about 'cumbrous machinery '. If there can be a machinery simple to a fault it is machinery provided by the Railway Committee of the Privy Council. The only trouble is that the people will not write, will not express a wish, will not ever! state what they desire. It is not that that any desire they have expressed has not been acted upon. There is no question of counsel being compelled to conie to Ottawa.

Topic:   THE RAILWAY ACT, 1903.
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LIB

Mahlon K. Cowan

Liberal

Mr. COWAN.

They know that the railway companies will be represented at Ottawa, and I venture to say that no lawyer will institute proceedings and take his chances before a tribunal where the other side is represented and his client is not represented. He will not start the proceedings unless he can carry them through. Speaking with the experience of some little drainage practice, I say I would not institute proceedings before any tribunal, even in a matter involving .$25, and let the railway be represented before the tribunal and my client not be represented. I understand that, as the minister says, he has done all in his power, but, these people who will pot take advantage of the door that the minister has sought to open. They will not seek in that way the drainage of their lands.

Topic:   THE RAILWAY ACT, 1903.
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The MINISTER OF RAILWAYS AND CANALS.

I cannot, understand what the bon. gentleman means by the railway being represented. An application made by any person for drainage facilities would be heard in the way such applications have always been heard; the application has been heard in the locality, when the engineer is there, and the persons interested were not asked; to come to Ottawa.

Topic:   THE RAILWAY ACT, 1903.
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LIB
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The MINISTER OF RAILWAYS AND CANALS.

There is a general provision, and it will be carried out exactly in the same way, whereby the board is authorized to appoint anybody for any special purpose under the Act to report and decide upon questions, subject to the sanction of the board.

Topic:   THE RAILWAY ACT, 1903.
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LIB
LIB

Charles Bernhard Heyd

Liberal

Mr. IIEYD.

I would like that point to be more clearly defined. Where would the argument take place, in Ottawa or on the spot ?

Topic:   THE RAILWAY ACT, 1903.
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The MINISTER OF RAILWAYS AND CANALS.

In the few instances which have occurred where applications have been made to us for a drain under railways, there was no argument at all. and no contest. We sent one of our engineers to the locality, after notifying these people and the railway company that lie would be down at such a date, and notifying all parties to be present. Two engineers met and looked the situation over, and came to a conclusion, and the railway company agreed to put the works through, the parties were satisfied, and we beard nothing more about it.

Topic:   THE RAILWAY ACT, 1903.
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LIB
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The MINISTER OF RAILWAYS AND CANALS.

If there was a difference of opinion between the engineers, we would get a report from our engineer, and after hearing the report of the company's engineer, as it would be largely an engineering question, it would be decided by the chief engineer, in all probability. The parties would not be called upon to appear and argue upon an engineering question. Sometimes a question arises as to the amount of the charge that ought to be imposed upon the respective parties; that would be a matter of controversy, but it would not be necessary to bring the parties to Ottawa to discuss that question either. An engineer could go down and hear what they had to sav. and the Railway Committee would decide.

Topic:   THE RAILWAY ACT, 1903.
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LIB
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The MINISTER OF RAILWAYS AND CANALS.

I do not think there would be much opportunity for lawyers. They might appear on the ground locally if they wished. The hon. gentleman from Essex asked me to tell him where that section was. It is section 48 of the Bill.

Topic:   THE RAILWAY ACT, 1903.
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June 16, 1903