I consider the defendants liable, but only for the value of the 900 bushels expressed to have been received by them for carriage and delivery. The words "more or less" should not in the circumstances be held to affect the quantity. The plaintiff or his shipper knew that the quantity of wheat shipped was 202 bushels in excess of the quantity mentioned in the bill of lading. "Underbilling," as it is called, may be a common custom among grain shippers, and carriers protect themselves against it by making the quantity expressed subject to ascertainment. But the practice is reprehensible and dishonest.

The plaintiff is entitled to recover for but 900 of the 1,102 bushels shipped. There will be judgment in his favour for $864, with interest from December 2nd, 1908, and costs.

ALBERTA.]

EXPROPRIATION.

[SUPREME COURT.

MARSAN V. GRAND TRUNK PACIFIC R.W. Co.

(2 Alta. L.R. 43.)

The Railway Act, secs. 158, 177, 217, 220—Expropriation of lands—Requirements of plans, profiles and books of reference—Injunction—Undertaking of railway company to comply with Act-Plan filed of land subsequently sub-divided-Practice-Appeal-Judgment of a persona designata-Stated case-Admissions of counsel in stated case, effect of.

While a substantial compliance only is needed with the provisions of sec. 158 of the Railway Act with respect to plans, profiles and books of reference to be filed prior to expropriation proceedings being taken, it must clearly appear from the plans, profiles and books of reference filed, exactly what portion of the land of each separate owner the railway company requires, and the mere indication of the centre line of the proposed railway is not sufficient; the book of reference is a necessary part of the filings to substantially comply with the provisions; if the first definite information of the owner as to the quantity of land to be taken is obtainable only from the notice served, there has not been substantial compliance with the Act.

In the absence of evidence that the company has been oppressive or highhanded, an injunction will not be granted to restrain the railway company from proceeding with the railway, even if there has not been substantial compliance with the Act, provided the railway company will enter into an undertaking to comply forthwith with the requirements of the Act and to facilitate the proceedings for determining the amount of compensation to be paid-following Corporation of Parkdale v. West, L.R. 12 A.C. 602, 56 L.J.P.C. 66, 57 L.T. 602, and Hendrie v. Toronto, Hamilton and Buffalo Ry. Co., 26 O.R. 607, affirmed 27 O.R. 46.

But the Court will reserve to the plaintiff the right to apply to a single Judge for an injunction to prevent any unnecessary delay in proceeding to comply with the Act and pay compensation.

Warrants of possession improperly granted to a railway company which has not complied with the provisions of the Act will not prevent or render invalid the registration of a plan sub-dividing the lands required by the railway company, but,

Held, that in the absence of acceptance by the municipality of the streets, and evidence of a user of the streets by the public, or of evidence of the sale of lands in the sub-division, the streets shewn on the plan do not become highways.

Quære, per STUART, J.-Whether or not the judgment of a Judge who is persona designata is appealable in view of the decision in C.P.R. v. Little Seminary of Ste. Therese, 16 S.C.R. 606, since the enactment of sec. 220 of the Railway Act.

Quære, per STUART, J.—Whether or not a dissatisfied litigant who has the right to appeal must appeal and is not at liberty to bring the same matter before the Court in a different way, but

Held, that where the right of appeal was doubtful and the plaintiff had given notice of appeal, and at the same time brought an action for injunction, in which action the validity of the order appealed from would have to be inquired into, the matter was properly before the Court. Held, also, that the Court will not be bound by agreements of counsel in a stated case as to the effect upon the rights of parties to the action by determination of certain questions submitted in certain specified ways.

Sections 158 and 177 of the Railway Act, ch. 37, R.S.C., read as follows:

158. Upon compliance with the provisions of the last preceding section, the company shall make a plan, profile and book of reference of the railway. 2. The plan shall shew,

(a) the right of way, with lengths of sections in miles;

(b) the names of terminal points;

(c) the station grounds;

(d) the property lines and owners' names;

(e) the areas and length and width of lands proposed to be taken, in figures, stating every change of width;

(f) the bearings; and

(g) all open drains, watercourses, highways and railways proposed to be crossed or affected.

3. The profile shall shew the grades, curves, highway and railway crossings, open drains and watercourses.

4. The book of reference shall describe the portion of land proposed to be taken in each lot to be traversed, giving numbers of the lots, and the area, length and width of the portion of each lot proposed to be taken, and names of owners and occupiers, so far as they can be ascertained.

5. The Board may require any additional information for the proper understanding of the plan and profile.

6 The plan, profile and book of reference may be of a section or sections of the railway.

7. In the Province of Quebec the portion of the railway comprised in each municipality shall be indicated on the plan, and in the book of refer ence, by separate number or numbers. 3 Edw. VII. ch. 58, sec. 122.

177. The lands which may be taken without the consent of the owner shall not exceed,

(a) for the right of way, one hundred feet in breadth, except in places where the rail level is or is proposed to be more than five feet, above

or below the surface of the adjacent lands, when such additional width may be taken as shall suffice to accommodate the slope and side ditches;

(b) for stations, depots and yards, with the freight sheds, warehouses, wharfs, elevators and other structures for the accommodation of traffic incidental thereto, one mile in length by five hundred feet in breadth, including the width of the right of way. 3 Edw. VII. ch. 58, sec. 138.

Two appeals consolidated by order of Mr. Justice Beck; the one from an order of Mr. Justice Beck dated 22nd of October, 1908, made in pursuance of the provisions of sec. 217 of the Railway Act, ch. 37, R.S.C. (1906), whereby he directed warrants of possession to issue in favour of the defendant company in respect to certain portions of the plaintiff's property; the second from the judgment of the Chief Justice in favour of the defendant company, delivered on the 27th of November, 1908, after the argument of a case stated by the parties, wherein the questions submitted were, in general, whether or not the defendant company had complied with the provisions of the Railway Act in respect to the filing of plans, profiles and books of reference, and also in other respects, so as to authorize them to expropriate and take possession of certain lands of the plaintiff.

Both the Chief Justice and Mr. Justice Beck felt that in the circumstances they should not take part, and, Mr. Justice Scott being through illness unable to take part, it became necessary to resort to the provisions of sec. 34 of the Supreme Court, ch. 3 of the Acts of Alberta, 1907, and a special order was accordingly made that the Court for the purpose of these appeals should be composed of two Judges only.

The facts and points of dispute appear sufficiently from the judgment.

The appeals were heard by Harvey and Stuart, JJ., at Edmonton, on March 3rd and 4th, 1909.

Edwards, K.C., for appellant (plaintiff) :-The appeal from the judgment of the Hon. Mr. Justice Beck directing warrants to issue for possession, is taken formally in consequence of the

objection of counsel for the defendant that the plaintiff's remedy, if any, is by way of appeal under section 220 of the Railway Act. The company has not complied with the provisions of the Railway Act as to the deposit of plan and book of reference, and in consequence it is not authorized to commence the construction of the railway or to exercise the compulsory powers of the Act: Parkdale v. West, L.R. 12 A.C. 602, 56 L.J.P.C. 66, 57 L.T. 602, see pp. 611, 612 of L.R.; Kingston & Pembroke Railway Co. v. Murphy, 17 S.C.R. 582, see pp. 586, 590 and 593, see in same case, 11 O.R. 582, at p. 586; Brooke v. Toronto Belt Line Railway Co., 21 O.R. 401; Grand Junction Railway v. Peterboro, L.R. 13 A.C. 136, at p. 144.

The amendment of the Railway Act in 1903 as carried into section 158 of the Revised Act introduced particulars to be shewn upon the plan and book of reference which were not required under the earlier Act. There has been no attempt to comply with the requirements of this in the amendment. The owner of the property is entitled to know definitely what land is proposed to be taken. The plan deposited shews an intention to take over 500 feet in width, while the order of the Board authorizing the construction of the branch line only authorizes 100 feet in width for the right-of-way and 500 feet for station, etc. It could not be ascertained by reference to the plan and book of reference whether 100 or 500 feet or more was required to be taken. The last notice to expropriate limits the land to 100 feet; the prior notices under the same plan had claimed the full 566 feet.

The plaintiff and other owners of the property have registered a plan by which the land and property is subdivided and streets are laid out. This plan is entitled to priority over an invalid plan of the company. Sales of land have been made under it. The notice to expropriate was defective in that it was not accompanied by a surveyor's certificate.

The company must shew compliance with the Act to entitle it to possession: Murphy v. Kingston & Pembroke Ry., 11 P.R. 304, per Boyd, C., at p. 309.

Where there is a failure to comply with the Act the jurisdiction of the Judge is wanting, and the company may be restrained from acting under a warrant granted: Brooke v. Toronto Belt Line, 21 O.R. 401.

G. B. Henwood, for respondent (defendant) :-The warrants in question in these appeals were granted by Mr. Justice Beck under and in pursuance of the power given in sections 217 and 218 of the Railway Act, and the learned Judge in granting such warrants acted as persona designata, and there can be no appeal from his decision: C. P. R. v. Little Seminary of Ste. Therese, 16 S.C.R. 606, and, particularly, the language of Mr. Justice Patterson, p. 618. For this reason, as the second action was in the nature of an appeal, the question "X" in the stated case should have been answered in the negative, and the second action dismissed on that ground. See remarks of Boyd, C., in Kingston & Pembroke Ry. Co. v. Murphy, 11 P.R. 304, at p. 309, and Jacobs on Railway Act, edition 1909, pp. 323 and 324.

As to the company's main line, the plan, profile and book of reference were approved by the Board of Railway Commissioners, in pursuance of section 159 of the Railway Act, on August 15th, 1907, by order No. 3463, and the plan, profile and book of reference so approved were registered in the Land Titles Office, Edmonton, on August 29th, 1907, as plan 4012-S; subsequently, on the 19th November, 1907, a plan of this line drawn to a larger scale was deposited in the Land Titles Office as plan 7690-S, and notice of deposit was published in the "Edmonton Saturday News," on December 7th, 1907.

As to the branch line, the preliminary plan, profile and book of reference were deposited in the Land Titles Office on July 17th, 1907, as No. 7851-R, and were approved by the Board of Railway Commissioners by order dated January 21st, 1908. This order, with the plan, profile and book of reference, was filed in the Land Titles Office on March 6th, 1908, and notice of the deposit of the plan was published in the "Edmonton Bulletin" on August 31st, 1908.

23-IX. C.RY.C.