Michigan Central have an expensive bridge on the part of its line over which the rate in question is effective.

The third reason given for the increase was, that as the railways interested did not carry any of the raw product, it was felt that two cents was not sufficient.

We were then told that the wages were increased from 12 cents a car for a movement over the line to 50 cents at the time the increase in the rate was contemplated; but that this was afterwards reduced to 25 cents. But, we were not given details of any specific increase of cost in this particular service, although they were asked for.

Mr. Paul was, of course, trying to give us the best evidence he could when he gave us his opinion that the two cent rate was not sufficient to pay the ordinary expenses in connection with the handling of the freight. If the company desired however to make a point out of the question of the cost of operation, it should have submitted details of the expense of operation when the two cent rate was in effect and details of its operation under the three cent rate for comparison.

It is unnecessary to analyse the evidence further. It does not, in my opinion, satisfactorily rebut the presumption that the two cent rate was a fair and reasonable rate.

The company having failed to justify the increased rate, it should be disallowed, and the old two cent rate re-established.

THE CHIEF COMMISSIONER and MR. COMMISSIONER MCLEAN, concurred.

CANADA.]

HIGHWAYS ACROSS RAILWAY.

[BOARD OF RAILWAY COMMISSIONERS.

TOWNSHIP OF CALDWELL V. CANADIAN PACIFIC RY. Co.

(File No. 10637.)

Highways Across Railway-Railway to Open and Bear Expense-Road Allowances-Reservation by Crown.

On application by a municipality for a highway crossing over the line of the Canadian Pacific Railway Company at the expense of the railway company on the town line between two townships where no road allowances had been reserved in the original survey, but under this system of survey, when patents issue, a reservation of five per cent. is made for roads, with the right in the Crown to lay out same, where necessary or expedient.

Held, in view of such reservation by the Crown, that the railway company should be repaired to bear the expense of opening the highway across its right of way.

THE application was disposed of on the material filed with the Board.

The facts are fully set out in the judgment of the Chief Commissioner.

December 8, 1909. THE CHIEF COMMISSIONER:-The township of Caldwell asks for a highway crossing over the line of the Canadian Pacific Railway on the town line between the townships of Caldwell and Springer, the railway company consents, but submits that it should be at the cost of the township of Caldwell as to construction, maintenance, and operation. This the township declines and asks for the disposition of this question of cost.

There has been much correspondence upon the matter, from which it would appear that the townships of Caldwell and Springer were surveyed in the year 1880, the former by R. H. Coleman, O.L.S., and the latter by J. K. McLean, O.L.S. The railway was constructed at the point in question in 1883, and

the plans of the survey do not shew any reservation of road allowance, as such, along or between the boundaries of these townships.

It has been well settled that municipalities asking for leave to open new streets or highways over railway lines are required to bear the expense connected therewith, but the railway companies have not been allowed, nor so far as I know have they ever asked for compensation for these lands used for such roads or streets.

The Minister of Crown Lands for Ontario informs the Board that the surveys of the townships of Springer and Caldwell shew no road allowances along either the boundaries, or the concessions or side lines, but that, under this system of survey, when patents issue, a reservation of five per cent. of the total area is made for roads, with the right in the Crown to lay roads out where necessary or expedient.

The railway line then was constructed through these townships with the knowledge of this practice of the Department of Crown Lands. Of course, the location of roads had not been defined at the time of construction, but that there must at some future time be highways somewhere was known, and that the five per cent. was being, or would be withheld by the Crown from settlers for such purpose was also known; so if the plan had shewn a highway between these townships, the company, in that event, would have had to bear the expense of opening the road, why should the same principle not apply where the company knows the Crown will reserve a portion of the land for highways, to be located at proper and convenient points in the future? It is no greater burden upon the railway company in one case than in the other; in the one the company knows that it may be at some future time called upon to bear the expense of opening a highway; in the other it knows of the five per cent. reservation in each Crown deed, but the exact point of location of highway is not known. Along the tier of lots on the boundary line between these townships the five per cent. is kept

out for highways; it was known this would be done, so it is no hardship to require the railway company to bear the expense of opening a highway along this boundary where the same crosses the railway right of way. This should be made to comply with the standard of highway crossings, and if the work cannot be done this winter, it should at least be completed by June 1st, 1910.

HIGHWAY CROSSINGS-GRADE CROSSING FUND.

CANADA.]

[BOARD OF RAILWAY COMMISSIONERS.

TOWNSHIP OF WALPOLE V. THE GRAND TRUNK RY. Co.

(File No. 9437.)

Highway Crossings-Gates-Grade Crossing Fund-Contribution by Municipality-Railway Act, secs. 238 and 239 (a).

Application by the municipality for an order requiring the company to place gates at a highway crossing already protected by an electric bell. It was shewn that this crossing was particularly dangerous owing to obstructions to the view, the heavy traffic both on highway and railway, and the bell being constantly out of repair.

Held, that the company should instal and maintain gates at this crossing, Held, that twenty per centum of the cost of installation should be payable from "The Railway Grade Crossing Fund."

Held, that ten per centum of the cost of operation be borne by the municipality.

THE application was heard at Toronto, April 27, 1909.

J. Y. Murdoch, for the municipality.

M. K. Cowan, K.C., for the company.

January 6, 1910. THE CHIEF COMMISSIONER:-On the 17th of June, 1904, the township of Walpole made an application before the Board for an order requiring the Grand Trunk Railway Company to place a watchman, during the daytime, at the highway crossing where the Air Line crosses the Port Dover Plank

Road. The hearing was continued on the 25th of June, 1904, and as a result of the application the railway company was required to install an electric bell. This was done and the bell has been the only protection that has since existed at this crossing.

It is not denied that the crossing is extremely dangerous. A mill on the south-west corner and a hotel and trees on the north-west corner, obstruct the view. There are four tracks that the public have to cross in driving to and coming from Jarvis; and within the last two or three years the Grand Trunk Railway Company in constructing its new station built it on the north side of the main line, whereas it formerly stood on the south side, and this requires all passengers coming to the station from the village and returning to the village from the station to pass over three tracks.

Complaints have repeatedly come to the Board that this bell is generally out of working order, and consequently a menace instead of a protection.

The matter was again heard before the Board at Toronto, on the 27th of April last, and disposition of it was delayed in order that the railway company might furnish statistics of dates of inspection of the bell, and as to the condition that the same was found to be in by their signal engineer.

It was afterwards shewn by this statement that between the 25th of April, 1908, and the 25th of April, 1909, the bell had been found to be out of working order no less than ten times; twice in October; twice in November; three times in December; once in March, and twice in April. Various reasons are given; mostly the cause is set down as being broken bond wires. Why this state of affairs should have been in existence so long here, it is difficult to understand.

There is a large amount of railway traffic at this point.

When the application was heard on the 25th of June, 1904, it was shewn that on the preceding Friday forty trains had crossed this road, twenty-two of which did not stop. They were mostly fast Wabash freight and passenger trains running at a