Canadian Pacific Ry. Company v The King
| Jurisdiction | UK Non-devolved |
| Judgment Date | 1931 |
| Date | 1931 |
| Year | 1931 |
| Court | Privy Council |
Canada - Licence - Licence to erect Telegraph Poles on Crown Land - Trespass - Acquiescence - Revocability of Licence - Absence of Contract - Notice necessary to determine Licence.
Whether any and what restrictions exist on the power of a licensor to determine a revocable licence to occupy land depends upon the circumstances of each case.
In 1926 the Crown proceeded against the appellants alleging that poles, carrying telegraph wires, which they had erected on the roadway of a Canadian Government railway, were a trespass thereon, and claiming damages; alternatively the Crown claimed a declaration of the appellants' rights, if any. As to the main section of the telegraph line, the poles, as they stood in 1926, had been erected upon the roadway between 1905 and 1910 without leave or licence. As to two branch lines, the poles had been erected in 1893 and 1911 respectively, in each case while an agreement was in negotiation though no agreement was eventually concluded. The whole telegraph line, which was about 500 miles in length, was used by the public as well as by the appellants.
Held, (1.) on the facts, that at the date of the proceedings all the poles were on the roadway with the licence of the Crown. Although the appellants had originally been trespassers in respect of the main line poles, many years' acquiescence and a claim to the payment of rent, had long since prevented them from being so regarded; in the case of the branch lines, it was to be inferred that the poles had been erected by licence.
(2.) That the licence was revocable in the absence of any facts from which a contract that it should be irrevocable could be implied.
(3.) That, having regard to the circumstances, the licence could be revoked only by a notice determining it upon a specified future date such as would give the appellants sufficient time, not only to remove the poles and wires, but also to arrange for erecting them elsewhere.
APPEAL (No. 87 of 1930) by special leave from a judgment of the Supreme Court of Canada (June 11, 1930) in part dismissing the appellants' appeal and in part allowing the respondent's cross-appeal from a judgment of the Exchequer Court of Canada (March 21, 1929).
The Crown, on the information of the Attorney-General for Canada, proceeded against the appellant railway company complaining that they had erected and were maintaining poles carrying telegraph wires along about 500 miles of the roadway of the Intercolonial Railway, part of the Canadian Government Railway system, and that the company had thereby committed and were committing a trespass. Possession and mesne profits were claimed, but by an amendment made at the trial damages were claimed instead of mesne profits, and alternatively a declaration was sought as to the rights (if any) of the company.
The facts appear from the judgment of the Judicial Committee.
The trial judge (Audette J.) made a declaration that the telegraph poles, from the respective dates when they had been erected, had been on the land by the leave and licence of the Crown, but that the licence was not irrevocable. The learned judge gave either party leave to apply for further directions.
Upon an appeal and cross-appeal to the Supreme Court of Canada the judgment was varied. As to the whole line except that between Westville and Pictou it was held that the company had been and were trespassers; and, as to the line between Westville and Pictou, that they had an irrevocable licence. The case was remitted to the Exchequer Court for further trial. The proceedings on appeal are reported at [
1930. Dec. 4, 5, 8, 9, 11. Tilley K.C., Hon. Geoffrey Lawrence K.C., and C. F. H. Carson for the appellants.
Rowell K.C. and Rand for the respondent.
[Reference was made for the appellants to Duke of Devonshire v. EglinF1; Plimmer v. Mayor of WellingtonF2; Attorney-General of Southern Nigeria v. John Holt & Co.F3; Ramsden v. DysonF4; Llanelly Ry. and Dock Co. v. London and North Western Ry. Co.F5; and Laird v. Birkenhead Ry. Co.F6 For the respondent reference was made to Black v. The QueenF7; Bank of Montreal v. The KingF8; Ontario Mining Co. v. SeyboldF9; and to the Railway Act (R. S. Can., 1927, c. 171), ss. 7, 15.]
1931. Feb. 19. The judgment of their Lordships was delivered by
LORD RUSSELL OF KILLOWEN. This appeal was brought against a judgment of the Supreme Court of Canada, which in part dismissed the appellant's appeal, and in part allowed the respondent's appeal from a judgment of the Exchequer Court of Canada in proceedings, in which the Crown, on the information of the Attorney-General of Canada, was plaintiff, and the Canadian Pacific Railway Company (the appellant here) was defendant.
The object of the proceedings was to obtain the removal from the roadway and lands of the Intercolonial Railway of the appellant's line of telegraph poles and wires. The Intercolonial Railway forms part of the Canadian Government Railways system, and its roadway lies in the Provinces of New Brunswick and Nova Scotia.
The appellant's telegraph line was, at the date of the filing of the information (September 15, 1926), substantially all erected upon and carried along the Intercolonial Railway's roadway. The telegraph line forms part of a telegraph system worked by the appellant, and is of undoubted importance both to itself and to the public, inasmuch as it connects with the cable station at Canso, as well as with Halifax and other important points in the Maritime Provinces.
For the purpose of determining the rights of the parties the Supreme Court, in considering the case, divided the appellant's telegraph line into three sections. This appears to their Lordships to be a convenient course, and they propose to adopt it in this judgment. The three sections are as follows:—
(a) The “Main Telegraph Line” — namely, from Coldbrook near St. John through Moncton and Truro to Fairview Junction near Halifax, and from Truro to New Glasgow. This was constructed in the years 1888, 1889 and 1890.
(b) The “Branch Telegraph Line” — namely, from New Glasgow to Sydney. This was constructed in 1893, and
(c) The “Westville Telegraph Line,” — namely, from Westville to Pictou. This was constructed in 1911.
It will be necessary to consider the circumstances in which each of these sections was constructed, where the poles were placed, and how it came about that eventually substantially the whole system came to be situated on the lands of the Intercolonial Railway. But before doing so it will be advisable to state exactly what were the claims which were put forward by the Crown, and how each Court has dealt with those claims.
According to the information as it was filed and as it stood at the opening of the trial, the Crown's case was that the appellant was from the very start a trespasser in respect of its entire line. No other case was suggested. The allegation ran thus: “(2.) On or before or since the first day of January, 1890, the defendant in or upon the possession of the plaintiff of and in the premises, wrongfully and in violation of the plaintiff's rights, entered and intruded and constructed thereon, a line of poles and wires which the said defendant has ever since operated as part of, a telegraph system.”
The relief claimed was possession and mesne profits. At the trial leave to amend was asked for and granted, with the result that damages for trespass were claimed as an alternative to the claim for mesne profits, and, as alternative relief, a declaration was sought in the following terms: “(b) — (1.) In the alternative a declaration as to the rights, if any, of the defendant in said lands in respect of the said line of poles and wires.” The appellant had pleaded licence either irrevocable or, if revocable, unrevoked, and this no doubt was the reason why it was thought prudent by the Crown's advisers to include a claim for a declaration as to the defendant's rights in the Crown lands, notwithstanding that such a claim would appear to be inconsistent with any claims founded upon trespass. It is, however, true to say that the Crown's primary contention throughout has been, that the appellant was and is a trespasser, and nothing else.
The action was tried by Audette J., and after a hearing which lasted for nine days, the learned judge delivered his judgment on March 21, 1929. By his formal judgment, after making a declaration to the effect that the roadway in question of the Intercolonial Railway was owned by and in the possession of the Crown, he made an order in the following terms: “And this Court doth further order, adjudge and declare that the property of the defendant now on the said lands and premises consisting of a line of telegraph poles erected thereon and carrying wires for telegraph purposes is and has, from the respective dates when the several portions thereof were originally placed theron, been on the said lands and premises with the leave and licence of the plaintiff, but not an irrevocable licence.
“And this Court doth further order that either party to this action have leave to apply, upon notice, for further directions.
“And this Court doth further order and adjudge that the question of costs between the parties be reserved.”
The learned judge, it will be observed, drew no distinction in regard to the rights relating to any particular section of the telegraph line. His view of the result of the evidence was, that as regards the whole, the...
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