The hon. member for South Brant seems to think that the plan which I intimated was so simple and so easy is scarcely consistent with the facts presented by the hon. member for South Essex, who does not understand just what the foundation of my statement is. I am afraid that I cannot make it any clearer than I have to the hon. gentleman. All I will say is that neither of the hon. gentlemen will say that they have heard or known of any instance in which an application has been made to the Railway Committee of the Privy Council to drain under the road-bed of a* railway, and the application has not received attention or been satisfactorily dealt with.
How does the minister account for the fact that notwithstanding this exceeding simplicity and these grievances that we have heard of, there have been only three or four applications for redress to the Privy Council in four years ?
I do not profess to account for it. I say, however, as a fact, that the applications have not been made, and therefore nobody can claim that they are not entertained.
Is it the lawyers they are afraid of, and not the committee ?
It must be. It is very evident that the general sense of the House is decidedly in favour of the adoption of some such local plan as has been proposed here, and that the reasons which I have assigned for continuing to vest the jurisdiction in the Railway Committee or in the Railway Commission under this Bill, do not appear to have impressed'themselves strongly on the gentlemen who are representing these districts. It will therefore be necessary, I take it, that we should consider and make any proper and necessary alterations in the proposed amendments, to make them workable. I shall give the very best attention I can to the whole subject, and I hope that, not at the next meeting of the committee, but an early meeting, I may be able to suggest some substantive sections, or these sections somewhat improved, to the consideration of the committee. I would like, however, to have the sense of the committee on the proposition contained in the sixth clause. It looks to me at first blush to be a very drastic proposition to say that ' the propor-Mr. SCHELL.
tion 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.'
It simply means that the railway companies shall pay a very much larger portion, perhaps five-sixths or four-fifths of the cost of the works. The excavation under the road-bed will necessitate an arch or some other solid support for the road-bed above, and that will be certainly a very large portion of the cost of a proper arch under the roadway sufficiently strong to carry the weight of the embankment above. Is the committee of opinion that it would be well for parliament to make a flat-footed declaration that all the extra cost should be borne by the railway. It may be that the ditch could be just as well made in some other direction and that the fact that the railway company have to bear the greater portion of the cost might stimulate unnecessary demands by land-owners to have these drains made under the road-beds when they might just as well be made elsewhere. We" are desirous of being just and fair to the farmers, but at the same time we owe a duty to even a railway company, and should see that it is not going to be unduly penalized. We should only exact from railway companies what would be fair. I do not know myself just what to suggest to the committee at present. If you had a tribunal like the railway committee, which would have knowledge of the peculiar facts and conditions and have acquired a good deal of training, as it would be bound to do in a little while, and experience in these matters, if seems to me , that you could very safely trust such a tribunal to evolve some principle and act upon it in the settlement of questions of this kind. I am not prepared to make anv proposition to the committee now. but I think it is a matter which calls for serious reflection before we declare what principle should guide us in determining the proportion of these costs that should be borne by the railway companies. If the other members of the committee have any suggestions to offer I shall be very glad io receive them.
I can tell the hon. minister my opinion as a farmer. Why should not a railway company bear the expense of draining the lands adjoining its line ? In the section of the country from which 1 come, most valuable land for pasturage is very seriously affected by improper drainage. The clearing away of the woods lias had this effect, that there is nothing to control or contain the water in the woods and swamps. The water rushes down in greater volume in the spring and floods these lands adjacent to the railway. I cannot see why a county court judge, who is competent to deal with questions of drainage in the province of Ontario, would not be competent to deal with the same questions
under this Bill. The hon. minister, who knows all about it, says that the methods of dealing with these matters in the Railway Committee of the Privy Council are very simple, but they a re not so simple to our rural population. These questions get mixed up with politics, and the people in the province I come from do not think that any private individual can get any justice from the Railway Committee of the Privy Council sitting in Ottawa. Whether that opinion be well founded or not, it prevails. Besides the expense is enormous.
I had no idea there was such widespread ignorance.
Perhaps the people are not so ignorant as the hon. gentleman thinks. The hon. gentleman must see it illustrated in the Railway Committee every day that there is the opinion in the public mind that the minister himself is not free from the influence of railway corporations. Whether it be due to ignorance or not, that opinion prevails. I do not see why a judge, who has to do with such cases all through the province of Ontario, is not competent to deal with similar questions between railway corporations and private individuals. No man is in doubt'when a judgment is good. Some cranks may feel aggrieved, but the people of Ontario are well satisfied with the decisions given by their county court judges. Speaking for the county I represent, the people and the municipality are perfectly satisfied with the decisions rendered by the county court judge, and that court is much less expensive than either the Railway Committee of the Privy Council or this board of commissioners. If, as the hon. minister says, people do not go before the Railway Committee of the Privy Council, it is because of the expense. A farmer coming to Ottawa must have a lawyer and witnesses and the cost of these are out of proportion to the amount at issue.
Since the hon. minister has asked for the sense of the members on this question, I have no hesitation in saying that the railway companies should pay the extra expense of putting drains under their railway lines. These railway companies are given the privilege of building railways, and in many cases, if they took the precaution of making culverts or outlets for drains, when they built the line, sufficient to do for all time, there would be no dispute. It is not the fault of the farmer if the railway is there.
In the settlement of this particular phase of the question, we do not need to be drainage lawyers. An element of justice comes in here which all are equally competent to decide. Should a railway company be called upon to pay for benefits that are conferred upon other people and not upon themselves ? I have a particular case in which I am interested to a considerable
extent. In the city of Brantford, in which I live, there is a piece of ground crossed by the railway. The railway bought the right of way through a swale forty years ago. They paid the owners of the land compensation and took over the property they required, and I presume that involved all" conflict or troubles that thereafter might ensue. Since then that swale has become part of the city of Brantford. The drain that the railway put through that land answered the purposes of that time, and it still answers all the purposes of the railway. But there are hundreds of acres of land that could be used for building sites if the drain were deepened. Upon whom should the cost fall ? Upon the property benefited by the improvement or upon the railway company, which has no earthly interest in it ? If I understand the proposition of my hon. friend from Essex (Mr. Cowan), under such circumstances the railway company will pay all the cost, while the other people will reap all the benefit. I think there is an element of injustice there. It seems to me that, under such circumstances, the property that is to be benefited should bear a fair proportion of the cost, to the extent that it is benefited, and the railways should not be called upon to bear all the expense involved in putting a stone drain underneath the railway.
Mr. MACLAREN (Huntingdon).
This question is one that affects other portions of the Dominion besides the province of Ontario. I am very glad that my hon. friend from St. John and Iberville (Mr. Demers) spoke on the subject, and I also would like to say a few words, for two reasons. In the first place, I do not want the world to think that all the grumblers came from Ontario. And, in the second place, the people of my own county are deeply interested in the subject. In my own county of Huntingdon we have two railways, one crossing the northern part of the county throughout its entire length, about thirty miles, and another angling across. The first railway was built in the year 1880. It runs in a peculiar way and cuts off the drainage of the whole back part of the county from the rivers Chateauguay and Trout river, which afford the natural outlet for the drainage for that part of the country. When the road was built by the Grand Trunk Railway they put in such culverts as were necessary at that time, that is wherever there were ditches or water-courses. And here I might say that I have heard it said by those who have knowledge of such matters, that we in the province of Quebec have the simplest drainage laws of any province of the Dominion. If the committee will allow me, I might state the procedure. In the first place, a petition is presented to the municipal council by those requiring drainage of their land. The municipal council appoint a special superintendent. The superinten-
dent calls a meeting of tlie parties interested and hears what they have to say, and prepares his proces verbal. The parties are given notice and are invited to come before tile council to have it holomogated. Of course, there is a right of appeal from the decision of the council to the Circuit Court. Our trouble is that we cannot get at the railway companies in the same manner. I do not see why a railway company, building a road through a county should not be treated the same as any other owner of land. In other cases notices are posted up in certain places fixed by the council, and the interested parties are invited to appear on a certain date before the superintendent. And the superintendent, by the way, is not necessarily or even usually an engineer. He is very often a farmer who has had a good deal to do with drainage matters. I must say that, so far as the railways are concerned, the question of compensation has never come up with us. Any work requiring to be done that has been done by the railway has been paid for by the railway. Our trouble is to get the railway to do the work. Another difficulty which has arisen in our county is that, as the country is opened up, we find it necessary to deepen the water-courses which cross the railway track. They have built, in the first place, wooden culverts, in which they have what they call mud-sills ; and, when we try to deepen the drain, we find these culverts not deep enough. We do not want to interfere with the work of the railway, yet we have found great difficulty in getting the railway companies to do that work. But when they do it, they pay for it themselves. I think that is fair. I do not see why a company should build a bank across a county to interfere with the drainage ; and when it is necessary in order to drain the land behind them to put a drain across their track. I do not see why it should not do it at its own expense. This interferes with the drainage of Huntingdon very much, because, as I said, our natural' drainage for several concessions north of the Grand Trunk Railway has been to the Chateauguay and Trout rivers, these flowing into the St. Lawrence. We find it necessary sometimes, as the country is cleared up, to change the line of the water-course, and then the difficulty arises with the railway company. It becomes necessary to apply to the Railway Committee of the Privy Council. We in our county have much the same feeling with regard to that body as has been expressed by lion, members here. The fact that it is so far away, that it is such an important body, and that it has such a big name as 'The Railway Committee of the Privy Council,' have a tendency to make people feel that they do not want to have anything to do with it. And so, through time and patience-waiting. and waiting, and waiting- we have been able, so far as I know, to get Mr. MACLAREN (Huntingdon).
our difficulties remedied one by one. It would be a great benefit to the province of Quebec, as well as to the province of Ontario, if some simpler way was provided. And I do think it should be by some person on the ground. In the province of Quebec we must have drainage, we cannot raise crops otherwise. If the drains are stopped the people suffer. We have the valley of the Chateauguay,' the valley of the St. Lawrence and the valley of the Richelieu. All these have to be drained, and if the farmers do not drain them they cannot raise crops. We would like to have some simpler process by which we could deal with the railway companies as easily as we can deal with other persons owning land. As to the question of compensation, I am clear in my own mind that whatever obstruction to the drainage of the country has been caused by the railway, when an opening has been made through the railway to provide drains, it should be at the expense of the railway whose works have caused the obstruction.
I think that we all agree that we need only consider in this matter what is fair and just, I do not think that the railway company should be allowed to build a line like that in the county of Huntingdon or any other county against the will of the people. But if the farmers want the road built, give bonuses towards it and do everything they can to secure the construction of it
Mr. MACLAREN (Huntingdon).
Would the hon. gentleman (Mr. Brock) allow me to ask him a question ? Is it not a fact that the railway can push the line through by expropriation without asking the consent of the landowners ?
Quite true, but if the drainage is required, the time to get it is at the time when the road is built.
Mr. MACLAREN (Huntingdon).
Perhaps the hon. gentleman (Mr. Brock) will excuse me. There were areas of land not cleared that did not require to be drained when the railway was built. But as the country is developed these swamps require to be drained.
All that is wanted is what is fair and just. The railway is built through a province or through a country, through waste land that is of little or no value, and the building of it benefits the land and increases its value. As the hon. member has said the laud in Huntingdon is no good unless it is drained. But that country has been opened and settled for the last fifty or sixty years. The proper time to apply for drainage is when the road is built. As they neglected to do it, and their lands have been benefited by the building of a railway, the question is : What is a fair compensation ? Who should build the drain ? At whose expense ? I agree with those gentlemen who say that
the county judge is, iu most cases, tlie best man to refer cases of that kind to. He would give the greatest satisfaction in most cases. A case might arise of such importance that the judge would prefer to refer it to the Committee of the Privy Council. But we are told that would entail expense.
I think a great deal too much has been made of the expense of going to the Privy Council. They are a body appointed to settle matters of this kind, and they are doing it every day, they are very approachable, they are responsible for settling matters of this kind, and should he held responsible. Under these circumstances I think we should take as little out of their hands as we possibly can. This creating courts all through the country for settling these trivial matters, lion, members will find a very expensive piece of business. The government are here, these matters could be brought before them at no expense, or if the government chose to delegate their power to an engineer and send him to examine the line of road, and the circumstances, they can get a report from him and act upon it at . very little expense. But certainly I think that land which has been largely improved by the building of the railroad on it, land which was worth nothing before the railroad was built, should bear the expense afterwards of improving its own drainage, particularly when the railroad company has paid for the right of way through that land. Under these circumstances I think it would be a great injustice to penalize a railroad company. It is so easy to get up a feeling against a railroad, that is a popular thing all through the country, particularly when people expect an election. Hon. members can go back and say : See what great
things we attempted to do for you. Let us be fair, we can afford to be fair and do what is light. The right thing to decide is who shall bear the expense of these drains. I think that can be done to a large extent by referring the question to the judges in the counties which the railroads run through. I do not think there need be much discussion on this question beyond making it clear that the aim is to do what is fair, and not penalize the railroads more than they deserve.
I feel sure that my hon. friend from Toronto (Mr. Brock) did not refer io me when he spoke about trying to make political capital by waving the red right hand against the railroad companies and rousing up the people. I quite agree with a great deal of what he has said. I quite agree that there is a feeling in the country against railway corporations. I car tell the hon. member for Toronto that if he lived in the county of Essex he would say that his neighbours were the most patient and the most long-snffering people on the face of the earth, and he would be surprised that their animosity against railway corporations is not greater than it is.
I admit that certain agitators may try to work up a feeling against railway corporations, but so far as the county of Essex is concerned, no agitator or any one else has been quite as responsible for working up a feeling against railway corporations as the railway corporations themselves. I say here with a knowledge of the county of Essex, and as having been engaged in these drainage questions for ten or twelve years, I never asked a railway company to make an opening underneath their road for the drainage of land, even after they had double-tracked the line and stopped up the ditches the farmers already had, that I did not have to fight it to the last ditch in order to get even meagre justice at the hands of railway corporations. Further than that, I say my own opinion is that the farmer ought to pay for the cost of the construction of a drain across the lands of the railway company, that is the lands in the shape in which the company found them, because if there had been no railway they would still have had to construct that ditch across the lands now covered by the railway. But where a railway company comes upon my farm and says, I will take a portion of your land, peaceably if you like, forcibly if I must, then upon that land which they compel you to sell they erect an embankment, thereby increasing the cost of the drainage of the land lying above the railway and which to properly drain I must cross the railway, then I think in all justice, at least as far as agricultural lands are concerned, the increased cost occasioned by the construction of that roadbed ought to be borne by the railway company that constructed it, under the power which parliament gave them to construct it against my will. That is only fair and just. As I have already stated in my opening remarks on this section, I can point to you farmer after farmer in the county of Essex whose lands the railway has gone through. Supposing they only take an acre or two worth from $40 to $100 an acre. The farmer does not want to go to an arbitration for expropriation, and the result is that damages for obstructing the drainage of the lands is not taken into consideration, it never has been in any case I have known in that country. But the company has power to take his land without his permission. I can name one whose name has appeared in the newspapers. Mr. Thomas Uunmore, of the township of Tilbury. The Michigan Central Railway went through his farm about 1885, and to-day the company want more money from Mr. Uunmore to put an ordinary sewer under the railway than they paid for the land that they took from him. When he goes to a lawyer about it he is told that he must go to the Railway Committee of the Privy Council. That settles it. One word in answer to the Minister of Railways
and my hon. friend from Brant (Mr. Heyd). When a farmer comes to you and you tell him that the Railway Committee of the Privy Council will send on an engineer to make a report, he then wants to know what becomes of the report. You tell him that it goes back to the Railway Committee of the Privy Council to be there adjudicated upon, and that the railway lawyers can appear and be heard. He thinks he has got a mighty slim chance with the lawyers of a railway corporation before the Railway Committee of the Privy Council five hundred miles away, and he ploughing in the field.
The hon. member for Toronto (Mr. Brock) has introduced a new element into this question, that is, its bearing politically. Now I am of opinion that railway companies exert a more powerful influence at the time of election than any other corporate body in the Dominion of Canada. I think if w'e consulted our own interest we would be careful not to say anything contrary to the views of the railway companies. But there are great interests at stake, and the Minister of Railways has asked us to give this question consideration this afternoon. He wants to know what our feeling is with regard to making the railway company liable for all the expense of putting through a ditch, beyond what would have been incurred if there had been no railway there. Now speaking for myself and endeavouring to look upon this matter in a fair way, recognizing the wrongs the farmers have had to so suffer, recognizing too that we must have railways, that they serve a useful purpose, and that their interest must be protected as well as the interest of other people, I think the provision that we have in subsection 6 is such as will give substantial justice in this matter. It may be that a word or two might be introduced to the effect that, subject to any special circumstances affecting the same, the cost occasioned by the railway being there should be borne by the company. If there are any speciai or peculiar circumstances such as the hon. minister suggests that, for instance, the cheapest line for the ditch has not been selected, but one that will impose a very large amount of expense upon the railway company where a cheaper course could have been selected, it seems to me that this would be a fair element to take into consideration, and that if we frame it in some such way as this :
Subject to any special circumstances affecting the same the proportion of the ccst 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
We will have an equitable provision all around. The hon. member for South Brant (Mr. Heyd) said that this was probably a matter that was taken into consideration at the time the railway was con-Mr. COWAN.
structed. I venture to say it has not been so in the majority of instances. I venture to say that almost universally the opposite rule prevailed. There may be some instances where this principle was adopted and where the increased compensation was given at the time, and if it can be established that it was given that would be one of the special circumstances to which I have referred. But, if hon. gentle-meu will take into consideration the circumstances attending the expropriation and valuation of property at the time they will come to the conclusion very readily that this is not likely to be the case. At the time the land Is expropriated the line is merely located and no work has been done on the ground. The farmer has no idea at the time that there is to be an immense embankment built across bis property. All he knows is that there is to be a railway run through his property. He has no anticipation that there will probably be a frog pond created, as there have been in several instances to my knowledge in the riding of South Sirucoe, to the prejudice of the health of the farmer and his family, and the destruction of his land.
Mr. HUGHES (Victoria).
Even the surveys are not made then.
As my hon. friend (Mr. Hughes, Victoria) says, in instances the surveys are not made at the time the settlement is made for the land. So that, what I submit as to the hon. member from South Brant is that his argument is not a matter that stands in the way of our arriving at a fair conclusion upon this question. The hon. Minister of Railways and Canals has spoken this afternoon, as it is his duty to speak, in reference to the question of the safety of the public. That is a matter, that, of course, must not be lost sight of. It would not be right that the strength of the railway should be impaired by the reckless putting through of any ditch or culvert or anything of that kind, tout, the Ditches and Water-courses Act, and the General Drainage Act of Ontario, and I presume, the drainage Acts of other provinces, provide that the railway companies shall have the first right to construct the drainage work if they think fit.