11

11 U.C.Q.B. 220; Nichol v. Canada Southern Railway Company (1877), 40 U.C.Q.B. 583; Brown v. The Grand Trunk Railway Company (1865), 24 U.C.Q.B. 350.

In 1868, by the Railway Act of that year, 31 Vict. ch. 68, the former sections 13 and 19 were combined, and railway companies were required, if requested by the adjoining proprietors, to erect fences on each side of the railway and cattle guards at all road crossings suitable and sufficient to prevent cattle and animals from getting upon the railway, and it was enacted that until these fences and cattle guards were duly made, the company should be liable for all damages which might be done by their trains or engines to cattle, horses or other animals upon the railway.

This provision was further amended in 1883 by 46 Vict. ch. 24, sec. 9, and as then enacted reappeared with some verbal alterations in the Revised Statutes of 1886, ch. 109, sec. 13. It was further amended in 1888 by 51 Vict. ch. 29, sec. 194, and still further in 1890 by 53 Vict. ch. 28, sec. 2, but up till 1903 it contained the clause that upon default the company should be liable for damage done by trains and engines.

In view of this limitation it was held that damage done by trespassing cattle as in this case was not recoverable.

Young v. Erie & Huron Railway Company (1896), 27 O.R. 530; James v. Grand Trunk Railway Company (1901), 31 O.R. 672, 1 O.L.R. 127, 1 Can. Ry. Cas. 407, 409; Grand Trunk Ry. Co. v. James, 31 S.C.R. 420, 1 Can. Ry. Cas. 422.

In 1903 the Act was put into its present form (3 Edw. VII. ch. 58, sec. 199), and appears as sec. 254 of R.S.C. (1906), ch. 37, which provides that the railway companies "shall erect and mainsuitable and sufficient to tain upon the railway fences prevent cattle and other animals from getting on the railway." The provision as to liability is omitted from the section and a new provision inserted as sub-sec. 4 of sec. 237 of the Act of 1903, a further change being made in this respect in 1906 by section 294 of the present Act.

It is contended on behalf of the plaintiff that the omission

of the penalty for default has altered the law so that the requirements are now the same as they had been prior to confederation, and that the railway is now bound to erect the division fence of the quality and kind referred to, as to separate its land from the lands of adjoining proprietors.

To consider the purposes for which the legislature might have imposed upon them obligation to fence, and the extent of their liability :

(a) Protection of animals from injury by trains.

(1) This has always been in terms the statutory purpose in regard to animals belonging to adjoining proprietors; but

(2) The extent of the liability to include the animals of other than adjoining proprietors only began in 1890 when sec. 194 (3) of 51 Vict. ch. 29 was by 53 Vict. ch. 28, sec. 2, extended to the case of an animal getting upon the railway from an adjoining place where under the circumstances it might properly be, further extended by section 237(4) of the Railway Act, 1903, and still further by section 295 of the Railway Act of 1906. Even under the Act of 1903 there still remained a doubt.

See judgment of Phippen, J.A., Carruthers v. Canadian Pacific Railway Company (1906), 16 Man. L.R. 323, 39 S.C.R. 251, 6 Can. Ry. Cas. 13, 15, 7 Can. Ry. Cas. 23.

That doubt has probably now been set at rest.

(b) Protection of animals from other injuries.

(1) Belonging to adjoining proprietors. No liability unless resulting from actual contact with train, prior to 1903. See McKellar v. Canadian Pacific Railway Co. (1904), 3 Can. Ry. Cas. 322, 14 Man. L.R. 614.

But this liability has probably existed since 1903, though quære as to effect of section 295 of the Act of 1906.

For the law in England see Dixon v. Great Western Ry. Co. (1896), 2 Q.B. 333, (1897) 1 Q.B. 300, 66 L.J.Q.B. 132, 75 L.T. 539, 45 W.R. 226.

(2) No matter to whom the animals belong.

The remarks above in regard to prevention of injuries to animals other than those of adjoining proprietors by trains or engines apply equally under this head.

(c) Prevention of injuries to passengers by reason of collision with stray animals.

Question not considered in Canada, but see Buxton v. North Eastern Ry. Co. (1868), L.R. 3 Q.B. 549, 9 B. & S. 824, 37 L.J.Q.B. 258, 18 L.T. 795, 16 W.R. 1124.

(d) Prevention of animals escaping from adjoining lands. This was not covered at all events until the year 1903. James v. Grand Trunk Ry. Co. (1901), 31 O.R. 672, 1 O.L.R. 127, 1 Can. Ry. Cas. 407, 409: see also Grand Trunk Ry. Co. v. James, 31 S.C.R. 420, 1 Can Ry. Cas. 422.

(e) Prevention of animals escaping from the railway lands into adjoining lands.

To come to a conclusion that this is involved in the duty imposed, it is necessary:

1. To read into the statute a direction to make a division fence dividing the company's lands from adjoining lands.

2. To interpret the word "railway" not in its proper sense of a way on rails, but in the sense of "the railway lands," making the word "railway" an adjective, and reading the word "lands" into the statute after it, and so to require the fencing of station grounds, freight yards, etc., etc.

3. To require the railway to fence its lands underlying bridges and trestles, although no possible danger could come to animals by reason of the absence of the fence. 4. To compel the railway to retain upon its right of way any animals which may have got there and to prevent it from so building its fence that animals although they cannot come upon the right of way can nevertheless get off it.

The only case upon the subject is a case of Grand Trunk v. James, 31 S.C.R. 420, 1 Can. Ry. Cas. 422.

Counsel analyzed this case, and distinguished the cases referred to in the judgment of Harvey, J.

In Pound v. Port Huron and South Western Railway Company (1884), 19 Am. & Eng. Ry. Cas. 640, the statute required the railway company to fence its right of way, and so the statute under consideration in Levesque v. The New Brunswick Railway Co. (1889), 29 N.B.R. 588, required fences to be erected "on each side of the land taken for the railway." Lizotte v. Temiscouata Railway Co. (1906), 37 N.B.R. 397, 6 Can. Ry. Cas. 41, cannot, as the learned trial Judge very properly points out, be considered an authority on the point in dispute.

And he submitted: 1. That this judgment of Mr. Justice Sedgewick and the Chief Justice of Canada was correct; 2. That from a consideration of the statutes in force from time to time it appears that was never the intention to require division fences, but only fences to protect animals from injury due to the dangerous business carried on by the railway upon its lands; 3. That the alteration of the section in 1903 was not made with any intention to change the law.

Reference was also made to Gorris v. Scott (1874), L.R. 9 Ex. 125, 43 L.J. Ex. 92, 30 L.T. 431, 22 W.R. 575; Couch v. Steel (1853), 23 L.J.Q.B. 121, 3 El. & Bl. 402, 2 C.L.R. 940, 18 Jur. 515, 2 W.R. 170; Atkinson v. Newcastle and Gateshead Water Works Company (1877), 2 Ex. Div. 441, 46 L.J. Ex. 775, 36 L.T. 761, 25 W.R. 794 (C.A.).

G. B. O'Connor, for respondent.

The Fence Ordinance does not prohibit this action. Section 2 applies only to actions against the owners of trespassing cattle. Cf. the words "liable to be distrained"; and the language of section 7: Gorris v. Scott (1874), L.R. 9 Ex. 125, 43 L.J. Ex. 92, 30 L.T. 431, 22 W.R. 575.

This action is not for "damages caused by domestic animals," it is for damages caused by the breach of statutory duty to fence:

St. Louis & San Francisco Railway Co. v. Sharp (1881), 13 Ani. & Eng. Ry. Cas. 595, 27 Kansas R. 134.

The Fence Ordinance is not pleaded, and is not noted in the margin to the plea, "Not guilty by statute," and the trial Judge rightly refused to allow it to be added by amendment. On a fair construction of section 254 of the Railway Act there is a duty to fence and the company is liable for its default under section 427. Sub-section 3 of section 254 does not limit the liability. Counsel here reviewed the history of this section from pre-confederation days up to the present statute, citing Lizotte v. Temiscouata (1906), 37 N.B.R. 397, 6 Can. Ry. Cas. 41; Levesque v. New Brunswick Ry. Co. (1889), 29 N.B.R. 588, and distinguished; Blakslee v. St. John Water Co, 1 All. 639; Gibson v. Mayor of Preston (1870), L.R. 5 Q.B. 218, 10 B. & S. 942, 39, L.J.Q.B. 131, 22 L.T. 293, 18 W.R. 689; Hammond v. Vestry of St. Pancras (1874), L.R. 9 C.P. 316, 43 L.J.C.P. 157, 30 L.T. 296, 22 W.R. 826; Atkinson v. Newcastle Waterworks (1877), 2 Ex. Div. 441, 46 L.J. Ex. 775, 36 L.T. 761, 25 W.R. 794 (C.A.); Vallance v. Falle (1884), 53 L.J.Q.B. 459, 13 Q.B.D. 109, 51 L.T. 158, 32 W.R. 769, 5 Asp. M.C. 280, 48 J.P. 519; from the cases such as Couch v. Steele (1853), 23 L.J.Q.B. 121, 3 El. & Bl. 402, 2 C.L.R. 940, 18 Jur. 515, 2 W.R. 170, questioned to some extent in Atkinson v. Newcastle Waterworks (1877), 2 Ex. Div. 441, 46 L.J. Ex. 775, 36 L.T. 761, 25 W.R. 794 (C.A.), which hold that the breach of a public duty gives a right of action to persons specially damnified.

It is a matter of construction of the particular statute; cf. Hammond v. Vestry of St. Pancras (1874), L.R. 9 C.P. 316, 43 L.J.C.P. 157, 30 L.T. 296, 22 W.R. 826.

From decisions of the Ontario Courts he cited: Masson v. Grand Junction Ry. (1879), 26 Gr. 286; Rutledge v. Woodstock and Lake Erie Ry. (1855), 12 U.C.R. 663; Bradly v. G. W. Ry. (1854), 11 U.C.Q.B. 220; Young v. Erie (1896), 27 O.R. 530; James v. Grand Trunk Ry. (1901), 31 O.R. 672, 1 O.L.R. 127, 1 Can. Ry. Cas. 407, 409, pointing out that the present section is radically different from that discussed in the last cited case.