deposit by the railway company of the plan, profile, and book of reference, was awarded to the respondents.

The respondents also moved for payment to them, out of the sums paid into Court by the appellants on obtaining warrants of possession, of the compensation so awarded, with interest from the 14th March, 1907.

The appeals and motion were heard before MEREDITH, C.J.C.P., sitting in the Weekly Court, on March 3rd, 1909.

I. F. Hellmuth, K.C., and Angus MacMurchy, K.C., for the appellants.

B. F. Justin, K.C., for the respondents.

March 23, 1909. MEREDITH, C.J.C.P.:-At the close of the argument I determined that the appellants had not made a case for reducing the sums awarded as compensation on the ground that they were excessive, and reserved judgment on the two other questions argued: (1) that the arbitrators had no authority to award interest; and (2), that the respondents were not entitled to anything beyond the compensation awarded, except such interest as, according to the practice of the Court, is payable on the amounts awarded as compensation while they have been in Court.

By sub-sec. 2 of sec. 192 of the Act it is provided that the date of the deposit of the plan, profile, and book of reference which a railway company is by sec. 158 required to make, is to be the date with reference to which the compensation or damages which the company is by sec. 155 required to pay are to be ascertained.

The first step to be taken by the company, in case it is unable to agree with a land owner as to the compensation or damages which he is entitled to receive, is to serve upon him a notice describing the lands to be taken or the powers intended to be exercised with regard to any lands described in the notice, and a declaration of readiness to pay "a certain sum or rent" as compensation for the lands or for the damages: sec. 193.

Section 215 deals with the right of the company to take possession, and is as follows:

"215. Upon payment or legal tender of the compensation or annual rent awarded or agreed upon to the person entitled to receive the same, or upon payment into Court of the amount of such compensation, in the manner hereinbefore mentioned, the award or agreement shall vest in the company the power forthwith to take possession of the lands, or to exercise the right or to do the thing for which such compensation or annual rent has been awarded or agreed upon."

By sec. 217 provision is made for the granting, before an award or agreement has been made, a warrant for possession, on the Judge being satisfied by affidavit that the immediate possession of the lands or of the power to do the thing mentioned in the notice is necessary to carry on some part of the railway with which the company is ready forthwith to proceed; but the warrant is not to be granted until after a prescribed notice or unless the company gives security to the satisfaction of the Judge by payment into Court of a sum, in his estimation, sufficient to cover the probable compensation and costs of the arbitration, and "not less than fifty per centum above the amount mentioned in the notice served upon the party stating the compensation offered:" sec. 218.

The plan, profile, and book of reference, as I have mentioned, were deposited on the 14th March, 1907.

The notice provided for by sec. 193 was served on the 16th July, 1907, and on the 1st August, 1907, warrants for possession were obtained in both cases, $2,300 in the first case and $1,800 in the second case having been paid into Court by the company, pursuant to sec. 218.

I am of opinion that the arbitrators had no authority to award interest upon the amounts of the compensation awarded; their authority was only to determine the amount of the compensation, and that they were required to fix as of the date of the deposit of the plan, profile, and book of reference: sec. 192.

It may be and has been said that it is most unjust to a land owner that he should be restricted in his claim to compensation to the value of the land at the date of the deposit of the plan,

profile, and book of reference; that when these have been deposited, the power of the land owner to deal with his land is curtailed, and in the case of a farmer the cropping and cultivation of his land is interfered with, and that, if interest be not allowed, he receives no compensation for the injury caused by so tying up his land; but these are considerations to be urged upon Parliament as reasons for a change in the law, and do not justify a Court in straining the language of the statute so as to obviate inflicting injustice.

The question has recently been considered by the Court of Appeal for Manitoba, in In re Canadian Northern R.W. Co. and Robinson (1908), 17 Man. L.R. 396, and, after full consideration and discussion of the various provisions of the Railway Act, the conclusion was reached that "interest on the amount awarded should not be added by the arbitrators, especially in a case where the claimant remains in possession of the property until after the date of the award."

I entirely agree with the conclusion reached by the Manitoba Court and with the reasons given by Mr. Justice Phippen for that conclusion, and differ, therefore, as that Court did, from the view taken by my brother Riddell in In re Cavanagh and Canada Atlantic R.W. Co. (1907), 14 O.L.R. 523.

Mr. Justin contended that, according to the decisions of the Courts of this Province, the arbitrators had power to award the interest in addition to the compensation, but with that contention I am unable to agree.

In re Cavanagh and Canada Atlantic R.W. Co., no doubt, supports his contention; but it may be pointed out that in that case the railway company had, under the provisions of what is now sec. 178, obtained from the Board of Railway Commissioners authority to take the lands in respect of which the compensation had been awarded, and, by so doing, as my brother Riddell said (p. 530), made it "practically impossible for the owner to do anything with his land except hold it for the company;" but I am not at all sure that my learned brother would not have reached the same conclusion if that circumstance had not existed.

My learned brother followed James v. Ontario and Quebec R.W. Co. (1886), 12 O.R. 624, which, he said, decided that "interest is properly allowed to the land owner on the amount of his compensation from the time of taking," which he interpreted as meaning from the time the land owner knew that he had to give up the land "to the time of the award."

In the James case the arbitrators had allowed interest from the time of the service on the land owner of the notice provided for by what is now sec. 193, and all that was decided was that the award was not in that respect open to objection.

There was an appeal in that case to the Court of Appeal (1888), 15 A.R. 1, and one of the objections to the award taken there was that the arbitrators had charged the railway company with interest from the date of the notice to arbitrate, whereas it should only have been charged from the date on which the company took possession of the land. Dealing with this ground of appeal, Osler, J.A., said (p. 10): "The point was somewhat laboured on the argument, but as the difference appears to be, as one of the learned counsel for the company expressed it, 'so small as to be scarcely worth troubling about,' we may adopt that view, and decline to decide it."

The question, therefore, as far as the Court of Appeal is concerned, is left open for future decision.

In In re Birely and Toronto Hamilton and Buffalo R.W. Co. (1897), 28 O.R. 468, the arbitrators had allowed interest on the amount awarded from the time the work was completed and the powers were exercised: p. 469; and, in dismissing an appeal against this allowance, Armour, C.J., held that the arbitrators might, in awarding compensation, make an allowance in the nature of interest from the time when the right to compensation accrued: p. 470.

The cases of arbitration under the Municipal Act are distinguishable.

In In re McPherson and City of Toronto (1895), 26 O.R. 558, Street, J., pointed out that the effect of the by-law by reason of which the compensation became payable was to vest the land

immediately in the corporation as a public road, and he thought that the land must, therefore, from the date of the passing of the by-law be deemed to have been taken by the corporation, and, therefore, that, as declared by authorities binding on him-mentioning Rhys v. Dare Valley R.W. Co. (1874), L.R. 19 Eq. 93; In re Shaw and Corporation of Birmingham (1884), 27 Ch. D. 614, 619; James v. Ontario and Quebec R.W. Co., supra-the land owner was entitled to interest from the date of the by-law.

The reference by Osler, J.A., in In re Leak and City of Toronto (1899), 26 A.R. 351, 357, is to arbitrations under the Municipal Act, and the observations I have made as to the McPherson case apply to what was said by him.

As my decision is not subject to appeal to any Ontario or Canadian Court-if, indeed, it be not absolutely final and without appeal to any tribunal, which must remain an open question until the Judicial Committee of the Privy Council has dealt with an appeal taken to it from an adjudication upon an appeal under sec. 209-I am not bound to follow the decision of my brother Riddell, but I am at liberty to follow that of the Manitoba Court, though not binding on me, in preference to it. I take this course the more readily because the question is one arising on a Dominion statute, and it is important that the same construction should. be given to it in all the Provinces, and because the Manitoba decision accords with my own view of what the law is.

The result, therefore, of the motions by way of appeal from the awards is that each award must be varied by striking out that part of it which deals with the interest, and that in other respects both motions must be dismissed.

The appellants must pay to the respondents the costs of both appeals, except so much of them as relates to the question of interest, and as to this there will be no costs to either party. I give no costs of this branch of the appeal, because I think that, in view of the Cavanagh and Canada Atlantic R.W. Co. case, the arbitrators were justified in awarding interest and the respondents in claiming it.