June 16, 1903

LIB

Mahlon K. Cowan

Liberal

Mr. COWAN.

The minister will agree that if you have not got any application yon never will get one. It may be right, but if these people do not think it Is right, you cannot convince them. We have tried and failed. Wliat we want to do is to try and relieve them from this trouble without doing injustice to any one. Surely we can get down to that point and still permit full supervision of the road-bed by the government engineer.

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The MINISTER OE RAILWAYS AND CANALS.

I see my hon. friend proposes in liis Bill that a judge shall determine these questions. I do not know What exceptional quality a judge may have to determine questions of engineering.

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LIB

Mahlon K. Cowan

Liberal

Mr. COWAN.

The question can be easily settled so far as the question of costs is concerned, that were these people fail to agree they shall he borne by the railway company. So far as the plans or the manner in w'hich the work is to be done are concerned, X am quite willing, and these people are willing, that they should be approved by the Railway Committee before the matter is submitted to a judge.

The MINISTER OF RAILWAYS AND

CANALS. That might be the only way of solving the alleged difficulty. But it strikes me that a judge is not endowed with the qualities of adjusting questions of that kind. I see that my hon. friend proposes :

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.

Now in many instances where lands have been expropriated and damages have been awarded, they have been awarded having regard to the question of the cost of drainage, and compensation has been made upon that basis.

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LIB

Mahlon K. Cowan

Liberal

Mr. COWAN.

So far as the Grand Trunk and the Michigan Central are concerned, they were built through that country when it was largely wild land, the question of drainage was not thought of. I can understand that where a road is going through an old settled country that question might be taken into consideration, and if that had been taken into consideration on the land proposed to be drained that would be considered by the judge.

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CON

William Rees Brock

Conservative (1867-1942)

Mr. BROCK.

Where a railroad Is built through wild lands of little value, and the building of the railroad made those lands valuable, do you mean to say that the railroad should bear the total expense of the drainage, and that the land should be free from it altogether '-because this land has been made valuable by those who had the enterprise to build the railroad under these circumstances ?

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LIB
CON

William Rees Brock

Conservative (1867-1942)

Mr. BROCK.

I thought the whole argument of the hon. gentleman was that this drainage should be paid altogether by the railroad company and maintained by them. I think that would be most unfair wihen the lands have been made valuable, as the hon. member for Essex says, by the railroad being built through them when they were of little value.

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LIB

Mahlon K. Cowan

Liberal

Mr. COWAN.

I want to set the hon. member for Toronto (Mi-. Brock) right. While I did state that the road was constructed through these lands when they were wild lands. I did not state that the railroad had made these lands valuable' at all. It is the drainage which has made them valuable.

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LIB
CON

William Rees Brock

Conservative (1867-1942)

Mr. BROCK.

I did not say that, but I did say that had not the railways been built the land would not have been as valuable as it is.

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LIB

Mahlon K. Cowan

Liberal

Mr. COWAN.

Prior to the perfecting of the Municipal Act which enabled corporations to drain land, to construct large tap drains, to borrow money and issue debentures extending over years against the laud benefiting, these lands were absolutely7 unfit for cultivation. Prior to that law coming into force no one man could drain his own land, because he had no outlet. He was only dumping the water upon the land below him, and there was no natural water course. But, when they constructed large artificial drains on the same principle as they improve the sewage in a city, they were enabled to drain their lands, and that is what has made these lands valuable-the drainage which the railways obstruct.

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CON

Edward Arthur Lancaster

Conservative (1867-1942)

Mr. LANCASTER.

I think it is quite clear that the drainage laws, having regard to the way in which the railway companies interfere with the property of landowners, are not what they ought to be. I see that the hon. Minister of Railways and Canals does not dispute the contention that some remedy is required, but as I understand the hon. minister, he thinks the present machinery is applicable for the purpose if properly applied. I am bound to say, after listening to what has been said, that, in my humble judgment, the amendments proposed by the hon. member for South Essex (Mr. Cowan) provide the best remedy. I think if he will make subsection 0 of section 4 in his original Bill-section 190 as it is proposed to be inserted in the Bill now under consideration-a separate section, it will carry out the effect which is intended better than if it is allowed to remain a subsection of section 4. That subsection, I think, might be held, perhaps, in construing the statute, to have relation to the beginning of section 4, and it might be said to be dependent upon that, which provides that:

Where no provision is made by law for hearing the parties interested.

And so on. There is provision in Ontario, and yet nothwitstanding, it is important that we should have an enactment such as this subsection applying. That is :

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 think it is admitted by all parties who know ; at all events, it is my opinion, that as a rule tribunals decide these questions of cost in accordance with the benefits received by the parties, and as far as the railway receives no benefit, the railway can very well indeed say : We should not pay

any portion of the cost, because we get no benefit. That argument might prevail in Ontario, because of there being a state of

affairs that is not quite within the meaning of section 4, of which subsection G is a part.

I would suggest to my hon. friend that he make a special section of subsection 6, so that it will apply to all cases, irrespective of whether there is provision in the province for drainage or not. In regard to what the hon. Minister of Railways and Canals has said, I think the argument of the hon. gentleman shows that the proceedings before the Railway Committee of the Privy Council must be very cumbersome or they would have been used to a greater extent. There is no doubt that a grievance does exist in regard to this matter. When I was in the neighbourhood of the constituency of my hon. friend from Soutli Essex (Mr. Cowan), in speaking to the farmers in regard to another question of railway law which will come up in a day or two-I refer to the question of cattle-guards-I found that the farmers were greatly interested in it. They buttonholed me on several occasions and urged me to support the hon. member for South Essex in trying to do what he is trying to do here now. They impressed upon me the very views which my hon. friend has impressed upon the committee to-day, and they paid me the compliment of asking that I would do what I could to assist my hon. friend. I promised that I would do everything possible to assist him, and I am trying to carry out my pledge, not to my own constituents, but to my fellow countrymen, who, although they live in a far part of the province of Ontario, are equally as good Canadians. The procedure of which the hon. minister has spoken, must of necessity be so cumbersome that it cannot be used in such a way as to be efficacious, or to accomplish justice. The hon. gentleman admits in his argument that to carry out what he proposes it will be necessary to depute the duty to an engineer, or two or three engineers. These engineers would not live where the property is or near the situation which requires attending to. The county judge, to whom it is proposed to delegate this final power, is to be found in every county, and it is proposed by this amendment that a land surveyor or engineer shall make observations, inquiries, and report as to the question of cost, and if not finally agreed upon between the parties, it shall be left to the county judge. The hon. minister says that if they write a letter to the department it will be attended to. No doubt it will be attended to in some way, but I do not think it will be attended to in such a way as to accomplish justice. It will be impossible for the department, or for the railway commission, which will now take the place of the Railway Committee of the Privy Council, to go to every locality and conduct an investigation upon the spot without incurring enormous expense. I do not think that the hon. minister contemplates that they should do that, but I think he contemplates that

they should send an engineer. I do not think that is a proper delegation of authority in order to have these matters satisfactorily attended to. If the machinery provided by the hon. member for South Essex is adopted, it seems to me that the proceedings will not only be much cheaper, but the question will be much more satisfactorily and correctly inquired into, and the result will be more sound, just and quickly arrived at. The hon. minister says that the people have not taken advantage of the fact that they can appeal to the Railway Committee of the Privy Council. I think it is very pertinent to ask why. It must be for some such reason as that suggested by the hon. member for South Essex that they do not think it will pay them to do so. They know that there will be railway lawyers to look after the railway side of the case, and they will feel that it will be hopeless to expect to cope with them unless their side is presented by counsel, and unless they have their evidence there. If the proposal of my hon. friend were adopted-the matter would be decided in the locality. If the railways were not satisfied with the report of the local engineer they would send their own engineer and he could give evidence before the county judge as to what he thinks the cost of the work should be. The county judge could hear the evidence of the railway engineer, and as the county judge is accustomed to dealing with questions of drainage, he could apply the same judicial mind to the question of railway drainage as to other questions of drainage under the Ditches and Watercourses Act. and I think if this procedure were adopted it would be found that the expense would be 25 or 50 per cent less than it would be if the procedure proposed by the hon. Minister of Railways and Canals were adopted, and that the judgment given would be many hundred per cent better and more satisfactory. More than that, when the county judge decides one or two of these cases the people will be apt to say : We

know what he will do, and there will not be so many cases arising. I think if the hon. member for South Essex had two or three of these cases determined, if the railway engineer were present, and if the case of "the railway were presented by counsel, if after reserving judgment for a day or two the county judge gave such a decision as the county judges are in the habit of giving, sound, and equitable, the railway company and the owners of property would be found agreeing much more frequently than they previously have done. The railway company would have their attention drawn to the fact by these two or three cases that they were not able to do as they liked. People do not get them to agree, and cannot force any decision upon them, and the very thing that the hon. minister wants to accomplish is an agreement between the parties, but it is not accomplished

now because the railways know that an individual cannot afford to make them come to an agreement. If the procedure proposed by the hon. member (Mr. Cowan) is adopted, the railway will be compelled to do it, and as the county judges will give reasonable and just decisions the railways will submit to them and there will be very little litigation of any kind.

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LIB

George Stephens

Liberal

Mr. STEPHENS.

A portion of the county which I have the honour to represent is very deeply interested In this matter of drainage across railways. I quite agree with what has been said by the hon. member for South Essex (Mr. Cowan), but I may say that the farmers have still more grievances than he has enumerated. When the Erie and Huron Railway was built in my riding, they put in culverts which were supposed to be large enough to drain the lands, but after the road had been in operation for, a few years it was found that these culverts were not sufficient to carry off the water. I went to the railway company myself on one occasion and asked what it would cost to enlarge the culverts, and the answer I got from the manager of the company was, that they would not enlarge them at all unless they were compelled to do so by law, and that they would do just what the law compelled them and nothing more. The farmers in that county have suffered ever since that time, and great loss has been inflicted upon them. In the spring, and sometimes as late as June, when there is a freshet, the water backs through under these culverts into the fields and it will remain there for several days. When the water begins to fall the railway culverts are so small that it takes quite a number of days for it to run off the land, and the sun coming out in the meantime and heating the water, there is great damage done to the crops. There should be some law compelling the railway companies at their own expense to open up drains sufficient to carry away the water. When a farmer has gone to a great deal of labour and expense in cultivating his land, he finds himself subject to great loss and damage because of the water remaining in his fields on account of the railway being between him and the outlet. In days gone by the Grand Trunk Railway was willing to accede to the wishes of the farmers, and they frequently agreed to provide a remedy without a lawsuit, but of late they seem to have got it into their heads that they will give the farmers no relief whatever. The fact of the matter is, that in the counties of Kent and Essex the farmers have got to dread the idea of a railway coming through that part of the country, because they know that their lands will be drowned out for want of drainage, that the cattle-guards are Insufficient to protect their cattle, and so they would sooner do without a railway altogether than put up with the nuisance that a railway causes. I think the mem-Mr. LANCASTER.

hers of this House should take the matter in hand and provide in this Bill now that some relief should be given to the farmers ill this respect. There are not many members in the House who really know the great inconvenience and loss that farmers owning low-lying lands are put to because in the majority of ridings the land is rolling, and the farmers do not suffer to the same extent as we do in Western Ontario. I hope that the amendment moved by the hon. member for South Essex (Mr. Cowan) will be adopted.

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L-C

Samuel Hughes

Liberal-Conservative

Mr. HUGHES (Victoria).

When the minister spoke of the simplicity of an appeal to the Railway Committee of the Privy Council, he forgot that the farmers are accustomed to regard this as a matter of property and civil rights, to be dealt with by the provincial legislatures, and that they look to their own municipal and provincial laws to provide the remedy. But when they find that they have to come to Ottawa and embark on a procedure which is not familiar to them, the chances are that they will bear their wrongs rather than go to that trouble and expense. That is the reason why more appeals have not been made to the Railway Committee of the Privy Council in relation to drainage. I believe that these amendments if adopted would be in the best interest of the people of the country. The trip to Ottawa alone would cost these farmers a comparatively large sum of money, and when you add to that the cost of a lawyer, the procedure is prohibitory.

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LIB

Louis Philippe Demers

Liberal

Mr. DEMERS (St. John and Iberville).

The opinion of many hon. gentlemen seems to be that we do not suffer from this grievance in the province of Quebec. It is quite the reverse. Our farmers are constantly complaining of the treatment they receive from the railway companies, and I have been obliged myself on many occasions to ask railway companies to provide drainage for farmers and they have always refused. It has been said that when the lands were expropriated, the farmers were compensated for this damage, but that is not so. If a farmer files a claim at the expropriation for damages by reason of his land being flooded, he will be answered that the law provides for drainage and that the companies are compelled to drain the land. But in order to oblige them to drain the land we must come before the Railway Committee of the Privy Council, and that procedure is absolutely not available for the vast majority of farmers. These amendments should be supported by every member who represents a rural constituency.

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LIB

George Stephens

Liberal

Mr. STEPHENS.

When they start to acquire the right of way for a railroad, they go up and down the country for miles trying to find a man who will sell his land cheaply. Then they get one after the other, and finally the remainder of the land own-

ers are obliged to sell out at a low price. I know that some men in my county did not get as much per acre for the land taken for railway purposes as they could sell their whole farm for, while they should practically get ten times as much. They have sold land for railway purposes as low as $<>0 or $70 an acre, when the whole farm has been sold at $80 an acre.

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LIB

Charles Bernhard Heyd

Liberal

Mr. HEYD.

It is singular to hear the Minister of Railways define how exceedingly simple it is for a man to get his grievance against a railway company redressed. He told us that all the farmer had to do was to write to the Railway Committee of the Privy Council, when an engineer would be sent out to meet the railway engineer, the two would adjudicate upon the evidence, I suppose, and if they disagreed there would be a report to the chief engineer, who would make liis award, and the whole thing is done. If the procedure is so simple it is rather a peculiar thing, that according to the statement of the minister, only three or four people have availed themselves of this simple remedy during the past three years. It strikes me that there must be an immense lot of ignorance throughout Canada, and amongst the farmers particularly, as to this means of redress which is so exceedingly simple. If the hon. member for South Essex (Mr. Cowan) and the Minister of Railways would clear up this little darkness that rests upon that phase of the question, it would illuminate the minds of a great many of us who are not railway lawyers and who have not had drainage cases in court.

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LIB

Mahlon K. Cowan

Liberal

Mr. COWAN.

I might just say, for the benefit of the hon. member for South Brant (Mr. Heyd) that no engineer sent by the Department of Railways and Canals has any power to settle the matter, but the Railway Committee of the Privy Council, on an application being made to them, can send an engineer, who can inspect the premises and make a report to the Committee. I have never known the Railway Committee of the Privy Council to decide a question of the right to cross a railroad without giving an opportunity to the parties to be heard; and I venture to say that no Railway Committee of the Privy Council that has ever sat or ever will sit. will ever say to a railway corporation on the one hand or to a farmer on the other, our engineer has been on the ground, and we will take his report and swallow it holus-bolus, and you will not be heard. When that is the case, the railway company will be heard every time; its lawyers will be on hand; but where does the poor farmer come in ? As long as I practice at the bar I will never advise any client of mine to submit his case in that way, unless he is prepared to back it up by facing the corporation lawyers. So that while the present

procedure is simple, it is just as complicated as any other legal process.

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LIB

Robert Franklin Sutherland

Liberal

Mr. SUTHERLAND (North Essex).

The Bill submitted last session by the hon. member for South Essex, and again this session, meets a crying want of the community, as must be evident from the fact that Bbth last year and this year, in the press, by petition, and by letters to members, we have all been apprised of grievances existing. The minister seems to think that the present mode of procedure is a simple one; but the fact is that, far from considering it simple, the community believe it to be complex, dilatory, and expensive. These are the things they seek to rectify, and I believe the amendment introduced by the hon. member for South Essex will go a long way to rectify them. They desire a remedy which will be simpler, speedier and less expensive, and I believe there has been no amendment introduced during the long discussion which has taken place on this Railway Committee Bill, which will meet with greater approbation particularly on the part of the people of the province of Ontario, and the western section thereof, than the amendments proposed by the hon. member for South Essex. I have heard no valid objections to those amendments on the part of the minister or anybody else, and the whole trend of the argument is entirely in favour of it.

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LIB

Jacob Thomas Schell

Liberal

Mr. SCHELL.

With reference to the question of easy decisions by the Railway Committee of the Privy Council, I will just take time enough to instance a case in my own riding. Any person travelling past the village of Glen Robertson may notice that to the, south there is a range of hills, and that the railway embankment makes another obstacle to the north. As it passes the village the road curves to the right into the bank, making an artificial dam, and it is impossible to drain the land, because there is no culvert under the track at the foot of the valley. The result is that there is not a cellar in the lower part of the village, simply because the water is on a level with the top of the land. I have been told-I cannot give this as a fact-that some years ago application was made to the Railway Committee of the Privy Council through counsel for a remedy and that an engineer was sent to Glen Robertson to inquire into the matter, but no further action was taken. The people were not able to invoke the provincial drainage Act, because the railway is a work for the general advantage of Canada. The result is that for the last ten or fifteen years, although there are several hundred people living in that village, it has been impossible to have a cellar in the lower part of the village, owing to there being no means of draining the lower end of the valley; and having applied to the Railway Committee

of the Privy Council, and having received no redress, the people do not feel like applying again. I propose to support the proposition of the hon. member for South Essex simply on the ground that the people in this instance tried that very simple process of appealing to Ottawa, and were not successful.

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June 16, 1903