July 8, 1903

CON

Thomas Simpson Sproule

Conservative (1867-1942)

Mr. SPROULE.

That is good, as far as it goes; but I do not think it will cover all the requirements of the case. It applies only to municipalities or corporations. This can only include municipalities and such companies as have received corporate rights by Acts of parliament. A large number of our telephone lines are not owned either by municipalities or incorporated companies, but are lines projected by individuals or private corporations that give the use of them to the public generally. I apprehend they could not avail themselves of the right of connection with the railway stations under this provision. To that extent. I think the clause will fail to meet the requirements of the situation.

The MINISTER OF R A" v-s XD CANALS. I think that any clause which provides for making arrangements with any body of men not incorporated would fail. These concerns must have some sort of organization, so that the railway company, in dealing with them may know who they are dealing with, and may feel that they can make the concern fulfil its obligations. I would be sorry to impose such conditions

upon the railway companies as regards every association of fifteen or twenty individuals who might wish to have telephonic access to the railway station.

Topic:   INTERIM SUPPLY BILL.
Subtopic:   RAILWAY ACT 1903.
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IND

William Findlay Maclean

Independent Conservative

Mr. MACLEAN.

I am very glad the hon. minister has given us this amendment. It shows that discussion is profitable at times. My intention was simply to have a discussion of the question, to have no trouble about it, and to get something that would be in the public interest. I give the hon. minister credit for having met our views to a considerable extent, and I am very much obliged to him for this amendment. Since the question came up the other day, I have received a number of communications, and I would like to read extracts from two or three of them. A man in Ontario writing to me, says :

I have lust read your remarks in the House as to the telephone companies and Sir Wilfrid's noting your 1 insulting language,' and was glad that those who are not afraid to speak out were not all dead yet. You can thank Sir Wilfrid's words ' vested rights ' for this letter. My poor judgment is that nearly half the vested rights are vested wrongs.

Another farmer writes from Harriets-ville :

We are watching with much interest the developments of the telephone legislation at the capital. We have here in Dorchester about twenty-five miles of line and have Canadian Pacific Railway connections at both Harrietsville and Putman stations. Now, we would indeed feel it a hardship if we were to lose this connection, as we have no Bell line within some distance of us.

I would also read a short extract from the Orono ' News,' a letter received by Mr. William Armstrong from W. T. Smale, of Eskbridge, Kansas, a former Orono boy. Mr. Mr. Smale speaks of the operations of the rural mail delivery, and then goes on :

We also have the independent telephone system here and every house in our township is connected with Eskridge, Burlingham, Harveyville, Topeka and anywhere we want to talk, and best of all it is ours. We own the lines; the farmers do I mean, and all it costs us is twenty cents a month to keep up central. The telephone companies out here thought they owned the earth, but we thought we 'would let them see we owned some of it, too. So twenty-two of us fellows here formed a company of ourselves, built into Harveyville, bought our own switch-board and made Harveyville central. They laughed at us, would not have anything to do with us, made us pay to talk over their lines, but now the laugh is the other way. We have six lines running into Harveyville using our central, so the companies are glad to give us free exchange over their lines for the privilege of using ours, and that is what the farmers of Clare and Darlington townships ought to do, organize themselves into a .club, not a company-own their own lines, and make Orono central.

| Now, I believe that under this legislation the farmers of the country can form themselves into little clubs or companies, who 'will be in a position to get telephone con-

Topic:   INTERIM SUPPLY BILL.
Subtopic:   RAILWAY ACT 1903.
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LIB

Andrew George Blair (Minister of Railways and Canals)

Liberal

Hon. Mr. BBAIR.

nection with the railway stations. I have had intimations from all over the province that under a clause like the one the minister has now put in the Bill, the farmers will build telephone lines of their own, and Will extend a telephone service ail over the country independent of the Bell Company. There is just this difficulty in the way, that until this Bill goes into force they will not be recognized, and I would like to have the minister declare in this Bill that contracts like that one made between the railway companies and the Bell Telephone Company are against public policy and ought to he so declared by Act of parliament. I am hot going to press that at the present time, I am satisfied to accept this amendment now. I hope it will pass, and I hope that the minister will be given at least this much credit, which he deserves, that after full discussion of the question he came to the conclusion that there was a grievance in the country that ought to be remedied by legislation.

Mr. SPltOULE. The very instance which the hon. member has cited from that letter he read, shows that this thing can be accomplished and is accomplished, if not in our own country, at least in the adjoining country. But I tell him that these very companies would not come under this Bill, because they are not a municipal corporation, they are not incorporated, they are only clubs of farmers. To give the Minister of Railways and Canals an idea of the 'prevalence of lines in our country. I may tell him that to my knowledge there are several private lines in the county I represent, some of them eight or ten miles long, but not one of these can take advantage of this because they are neither owned by the municipalities nor by a company incorporated by an Act of parliament. I do not see how this trouble could be got over without surrounding the right by special safeguards. But I think it is a great pity, because the great bulk of the private lines 'will be practically shut out, notwithstanding this amendment, which is certainly in the fight direction, andi of which municipalities can avail themselves as well as companies "who are incorporated by Act of parliament.

Topic:   INTERIM SUPPLY BILL.
Subtopic:   RAILWAY ACT 1903.
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The MINISTER OF RAILWAYS AND CANALS.

All these people have got to do is to pay $5 or $10 and get a pass from the provincial government. I should imagine that unless these people adopt some method of that kind their telephone arrangements will not last very long.

Topic:   INTERIM SUPPLY BILL.
Subtopic:   RAILWAY ACT 1903.
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CON

Thomas Simpson Sproule

Conservative (1867-1942)

Mr. SPROULE.

But their arrangements have been running, some of them, for fifteen years, and running more successfully to-day than in The past; .so the danger of their lasting- need not he taken into account. They might not be as stable as if they were incorporated. and may be this will compel many of them to be incorporated and take in other lines which are to-day controlled

or owned by private individuals. It is a very common custom in our country for a doctor tO"*buiid lines in different directions from the town or village where he lives, for the convenience of people who call on him as well as for his own convenience, and the public always have the use of these lines. In the county of Grey some of these lines have been in operation for twelve to seventeen years, and they are increasing in number every year; and it is for the purpose of enabling these to take advantage of this Bill that I have drawn the attention of the minister to them.

On section 194,

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Subtopic:   RAILWAY ACT 1903.
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The MINISTER OF RAILWAYS AND CANALS.

I move : That section 194 be struck out and that the following be substituted in lieu thereof :-

The company shall in constructing the railway make and maintain suitable ditches and drains along each side of, and across and under the railway, to connect with any existing ditches, drains or water courses upon the land through which the railway runs, so as to afford sufficient outlet to drain and carry off the water, and so that the then natural, artificial or existing drainage of the said lands through which the railway runs shall not be obstructed or impeded by the railway.

2. Whenever any lands are injuriously affected by reason of the drainage upon, along, across or under the railway being insufficient to drain and carry off the water from such lands, or whenever any municipality or landowner 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. land of the company, the board may upon the application or complaint of the municipality or landowner, order the company to construct such drainage or lay such pipes, and may require the applicant to submit to the board a plan and profile of the portion of the railway to be affected, or may direct an inspecting engineer, or such other person as it may deem advisable to appoint, to inspect the locality in question, and, if expedient, then hold an inquiry as to the necessity of requirements for such drainage or pipes and to make a full report thereon to the board : the board may upon such report, or in its discretion, order how, where, when, by whom, and upon what terms and conditions, such drainage may he effected, or pipes laid, constructed and maintained, having due regard to all proper interests. 51 V., c. 29, s. 14 Am.

Strike out section 195, and substitute the following :

Whenever, by virtue of any Act of any province through which the railway runs, proceedings may be had or taken by any municipality or landowner for any drainage, or drainage works, upon and across the property of any other landowner in such province, the like proceedings may be had or taken by such municipality or landowner for drainage or drainage works upon and across the railway, and lands of the company, at the option of such municipality or landowner in the place of the proceedings before the board as in the last preceding section provided, and thereupon the drainage laws of the province shall apply to the lands of the company upon or across which such 194

drainage is required, to the same extent as to the lands of any landowner of such province, subject, however, to any previous order or direction of the board made or given with respect to drainage of the same lands, and provided that the company shall have the option of constructing the portion of any drain or drainage work required to be constructed upon, along, under or across its railway or lands, and in the event of the company not exercising such option, and completing such work within a reasonable time without unnecessary delay, such work may be constructed or completed in the same manner as any other portions of such work are provided under the laws of such province to be constructed; provided always that no drainage works shall be constructed or reconstructed upon, along, under or across the railway or lands of the, until the character of such works or the specification or plans thereof shall have been first submitted to and approved by the board. 63 and 64 V., c. 23, s. 2, Am.

2. The proportion of the cost to be borne by the company of the construction or reconstruction or maintenance of any such drainage or drainage works, so required to be constructed, reconstructed or maintained upon, along, under or across the railway or lands of the company, shall be in proportion to the benefit to be received by the company therefor therefrom unless the company shall have neglected to provide and maintain the necessary ditches and drains, as in subsection 1 of the last preceding section provided, for that purpose, in which case such proportion of cost shall be based upon the increase of the cost of such drainage or drainage works.

Topic:   INTERIM SUPPLY BILL.
Subtopic:   RAILWAY ACT 1903.
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LIB

Mahlon K. Cowan

Liberal

Mr. COWAN.

This matter was up for discussion the other day, and I am very glad to say that apparently the Minister of Railways and Canals seems anxious to meet the requirements of drainage. There are some things, however, in these sections which he now proposes which I would like to draw attention to. The first section starts out:

The company shall in constructing the railway make and maintain suitable ditches.

I cannot for the life of me see why the words ' in constructing the railway ' should be inserted in that clause at all, because it seems to me that under the decision which I quoted the other day those words would be construed not to apply to roads constructed prior to the passing of this Act. Section 195 referring to subsection 1 of section 194 might I think be construed as applying only to railways constructed after the passing of this Act. It seems to me that 'the minister should strike out the words ' in constructing the railway ' and simply let the section read :

The company shall make and maintain suitable ditches and drains along each side of, and across and under the railway.

I strike out the word ' its ' before railway and substitute the word ' the.'

To connect with any existing ditches, drains or water courses upon the land through which the railway runs.

That would refer generally to a railway and not to the railway previously mentioned. Instead of the word ' runs ' I think it would

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be very much better to use the words ' has been constructed.' It would make it then absolutely clear that this section applies to railways now in existence as well as to those hereafter to be constructed.

So as to afford sufficient outlet to drain.

I suggest that the word ' efficiently ' should be inserted before the word ' drain.'

-to efficiently drain and carry off the water

Tiie amendment reads * the then natural or artificial.' As I pointed out, when these railways were constructed there was no artificial drainage in the northern portion of the county of Essex through which these large trunk lines pass. But under this amendment it says :

The then natural or artificial.

There was no artificial drainage then, and I think the word ' then ' should be striken out so as to read:

And the natural or artificial drainage of the said land through which the railway runs shall not be obstructed or impeded by the railway.

I do not think there is any doubt that the intention of the Minister of Railways and Canals is that this shall apply to railways which are in existence as well as to those to be constructed hereafter. The changes In the direction which I suggested would put that beyond any question of doubt.

Topic:   INTERIM SUPPLY BILL.
Subtopic:   RAILWAY ACT 1903.
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CON

Samuel Barker

Conservative (1867-1942)

Mr. BARKER.

As I understand these clauses 194 and 195 they deal with two phases of railway construction. Clause 194 deals with the duty of the railway company in constructing its railway, and I suppose the language which the minister here uses is proper. They construct their drains to the then requirements, but the subsection of that section seems to provide for subsequent events, it provides for what may be necessary at any time after the railway has been constructed.

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Subtopic:   RAILWAY ACT 1903.
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LIB

Mahlon K. Cowan

Liberal

Mr. COWAN.

The word ' the ' is used in the second line of subsection 2, and it refers to the railway spoken of in subsection 1.

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Subtopic:   RAILWAY ACT 1903.
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The MINISTER OF RAILWAYS AND CANALS.

Not at all. The hon. member has stated correctly my intention with regard to this section, but you must have a little uniformity in framing a section of this kind to cover all the ground, and I think, that after careful examination the hon. gentleman will find, that the idea was to lay down a principle for the guidance of railway construction in the future. I wanted it distinctly called to the attention of railway companies that in constructing their line they should study the situation from the drainage point of view at the very commencement, and that if while they are constructing it is brought to the attention of the hoard that they are failing to discharge their duty in the matter, the board shall have power to compel them to perform

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Subtopic:   RAILWAY ACT 1903.
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LIB

Mahlon K. Cowan

Liberal

Mr. COWAN.

their duty. The fact that we have laid down a general provision does not warrant the inference that in all the subsequent sections we are dealing only with respect to railways that are to be constructed in the future. The language of the following clauses does not justify that interpretation. I must confess that I think my hon. friend 1 Mr. Cowan) is a little hypercritical about it. Let me deal with one or two suggestions he makes as to the phraseology cf the first section. The hon. gentleman would have us put in the word ' efficiently ' before the word ' drain.' They are bound to afford a sufficient outlet to carry off the water. I do not think you can add anything to make the meaning and intent any clearer.

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Subtopic:   RAILWAY ACT 1903.
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LIB

Mahlon K. Cowan

Liberal

Mr. COWAN.

You might drain off the water in a week, which is long enough to destroy a crop.

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Subtopic:   RAILWAY ACT 1903.
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The MINISTER OF RAILWAYS AND CANALS.

I do not think the outlet would be held to be sufficient if it would not carry off the water in a week. It should be sufficient to carry off the water in a reasonable time. The conditions might be so exceptional that no company could be supposed to anticipate such a demand on the outlet ; but if the outlet had been made sufficiently large to carry off the water under the ordinary conditions which prevail, without allowing the water to lie long enough to do any damage, it would be sufficient. My hon. friend must understand that these provisions are made with respect to conditions which exist not only in the county of Essex, but all over the country, wherever drainage is required. Where there is natural drainage going on when the railway is constructed, it is the business of the railway company to provide a sufficient outlet for that drainage. It is not necessary that they should make provision for artificial drainage, if there is not any or if the conditions are such as would not require it in other places, When we pass from the main clause of the section, we come to deal, not with the laying down of a general principle, but with the duties which attach to the railway company in the condition of things as they are to-day. These refer not simply to a railway which may be built after the passing of this Act, but to any railway wherever the trouble occurs and the remedy is being sought. But when we come to the next section, 195, we are drawing into the operations of this Act the provisions of the provincial law and applying them to the case that exists, so as to enable the landowner or the corporation that has drainage to proceed according to the practice laid down under that law and follow the remedy out to its conclusion. My hon. friend, I think, has indicated his satisfaction with that portion of the Bill.

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Subtopic:   RAILWAY ACT 1903.
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LIB

Mahlon K. Cowan

Liberal

Mr. COWAN.

I do not think we need have very much quarrel about section 194 ;

but section 195 is the important section, and if tbe bon. minister would change the word ' runs,' in the second line, so as to make it beyond all doubt apply to railways heretofore constructed as well as hereafter, I would have no fault to find with subsection 1 of that section.

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Subtopic:   RAILWAY ACT 1903.
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The MINISTER OF RAILWAYS AND CANALS.

Does my hon. friend say that these words, ' through which the railway runs,' would imply that the section had reference only to a railway to be run after the passage of this Act ?

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Subtopic:   RAILWAY ACT 1903.
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LIB

Mahlon K. Cowan

Liberal

Mr. COWAN.

All I can say is the case I read the other day in volume 1 of the Ontario Reports of 1901, in which the Divisional Court of this province held that the words 1 is carried ' referred only to railroads constructed after the passing of the Act and not to railways constructed before; and when the hon. minister asks me if I think these words refer only to a railway to be constructed after the passing of this Act, I think it is a pretty close decision, stretching the words of the statute possibly further than the average legal mind would stretch them, but it has been done, and I think the words 'is carried' are just as strong as the words ' is run.'

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Subtopic:   RAILWAY ACT 1903.
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The MINISTER OF RAILWAYS AND CANALS.

I would not agree with my hon. friend in that. I think there is the clearest possible distinction between the case he refers to and the language of this clause. I am not going to venture to suggest that the decision is anything but right ; it is not necessary ; but if we were to make this section read ' is run,' then you would bring it within the judgment, at all events of that judge, and he would be bound, if he is to adhere to his original decision, to hold that the words had reference to a future act and not to conditions which exist to-day. But the distinction is very clear to my mind. All a judge has to ascertain and determine is : is there any railway running through that district to-day, at the moment when this remedy is applied ? When he finds that a railway is running, it is a matter of indifference to him when that railway was put through. I am quite sure that my hon. friend is wrong in that, and I think he will himself agree that there is no room for question when he thinks a little more about it. This clause is acceptable to my hon. friend with that one doubt in his mind. That being removed, the section, I take it, will meet with the approval of the committee.

Topic:   INTERIM SUPPLY BILL.
Subtopic:   RAILWAY ACT 1903.
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LIB

Mahlon K. Cowan

Liberal

Mr. COWAN.

I would like to draw the minister's attention to this point. The clause provides that no drainage works shall be constructed until the character of such works, or the specification or plans thereof, shall have been first submitted to and approved by the board. Under section 16 of the Ditches and Watercourses Act of Ontario the engineer must make his report 194*

within thirty days, and he cannot make his award without the approval of the chief engineer of the railway commission ; or, if he does make the award, and approval is withheld by the commissioners, there is no machinery in the provincial legislation providing for the expense incurred, and the provincial statute will have to be amended to meet that case.

Topic:   INTERIM SUPPLY BILL.
Subtopic:   RAILWAY ACT 1903.
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The MINISTER OF RAILWAYS AND CANALS.

You will not have to amend any provincial Act. You will have to work out ] the matter in addition to what the provin-' cial Act requires. As respects Dominion railways, you cannot dig under them until the character of the work you have to perform has been approved by the board. There must be some superior tribunal to pass upon it.

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Subtopic:   RAILWAY ACT 1903.
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LIB

Mahlon K. Cowan

Liberal

Mr. COWAN.

I understand that the hon. minister has made up his mind on that, so I accept that.

Topic:   INTERIM SUPPLY BILL.
Subtopic:   RAILWAY ACT 1903.
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July 8, 1903