(a) A description of the lands to be taken, or of the powers intended to be exercised with regard to any lands (describing them);

(b A declaration of readiness to pay some certain sum or rent, as the case may be, as compensation for such lands or for such damages; and

(c) The name of a person to be appointed as the arbitrator of the company, if the offer be not accepted.

Must be cash offer not coupled with privileges: Brooke v. Toronto Belt Line Ry. Co., 21 O. R. 401.

Must be definite as to interest in property intended to be acquired: Toronto and N. P. Co. v. Lees, 12 0. L. R. 505; 6 Can. Ry. Cases 128; 8 O. W. R. 294.

Must not include lands-company not authorized to take: G. T. R. v. Lindsay, &c., Ry. Co., 3 O. W. R. 54; or not intended to be taken: Wood v. Atlantic, &c., Ry. Co., Q. R. 2 Q. B. 335.

As to easement: see Re James Bay Ry. Co. and Worrell, 6 0. W. R. 512; see also Widder v. Buffalo and L. H. Ry. Co., 24 U. C.` Q. B. 520.

If defective, notice of desistment should be given under sub-sec. 17, and a fresh notice served, describing accurately lands authorized to be taken by the company.

(2) The notice shall be accompanied by the certificate of an Ontario Land Surveyor, disinterested in the matter and not being the arbitrator named in the notice to the following effect:

(a) That the land (if the notice relates to the taking of land,) shewn on the map or plan, is required for the railway (or is within the limits of deviation by this Act allowed);

(b) That he knows the land, or the amount of damage likely to arise from the exercise of the powers; and

(c) That the sum so offered is, in his opinion, a fair compensation for the land, and for the damages as aforesaid.

(3) If the owner is absent from the district or county in which the lands lie, or is unknown, then upon application to a Judge of the County Court of the County in which the land lies, accompanied by such certificate as aforesaid, and by an affidavit of some officer of the company that such

owner is so absent, or that, after diligent inquiry, the owner on whom the notice ought to be served cannot be ascertained, the Judge shall order a notice as aforesaid, but without such certificate, to be inserted three times in the course of one month in some newspaper published in the said county.

(4) Where a Judge of a County Court is interested in lands taken or required within the county in which he is a Judge, by any company, for railway purposes, a Judge of the High Court shall, on application of the company, exercise in such case all the powers given to a Judge of a County Court by the provisions of this section in cases in which such Judge of a County Court is not interested.

(5) If within ten days after the service of the notice, or within one month after the first publication thereof as aforesaid, the person served does not notify the company of his acceptance of the sum offered by it, or notify it of the name of a person whom he appoints as arbitrator, the Judge shall, on the application of the company, appoint an Ontario Land Surveyor, to be sole arbitrator for determining the compensation to be paid as aforesaid.

(6) If the opposite party within the time aforesaid, notifies the company of the name of his arbitrator, the two arbitrators shall jointly appoint a third, or if they cannot agree upon a third, the Judge shall, on the application of the party or of the company (previous notice of at least one clear day having been given to the other party), appoint a third arbitrator.

Opposite party includes both mortgagor and mortgagee: C. P. R. v. Batter, 1 Can. Ry. Cases 457; Re T. H. & B. Ry. Co. v. Burk, 27 O. R. 690.

As to sale pending expropriation: C. P. R. v. Batter, supra.

(7) If lands have been entered on and taken by the company with or without the license of the person in possession thereof, and without any agreement as to the compensation to be paid therefor, or if the lands, though not taken, are injuriously affected by or through the construction of the railway, any owner or person interested in

such lands shall have the right to commence proceedings to ascertain the compensation to which he is entitled in respect of the lands so taken or injuriously affected, by giving to the company notice in writing of the name of a person to be appointed as his arbitrator, the description. of the lands taken or injuriously affected, and the amount of compensation or damages claimed by him, and thereupon like proceedings shall be taken to ascertain such compensation as are prescribed in cases where the company commences proceedings.

(8) The arbitrators, besides awarding to the owner the amount which they find to be the value of the land, shall state what they find to be the total amount to be paid to compensate the owner or for damages.

See notes to next sub-section.

(9) The arbitrators, or any two of them, or the sole arbitrator, being sworn before a Justice of the Peace or commissioner empowered to take affidavits, faithfully and impartially to perform the duties of their office, shall proceed to ascertain the compensation in such a way as they or he, or a majority of them, deem best; but no award shall be made or any official act be done by the majority, except at a meeting held at a time and place of which the other arbitrator has had at least one clear day's notice, or to which some meeting at which the third arbitrator was present, had been adjourned; and no notice to either of the parties shall be necessary, but each party shall be held sufficiently notified through the arbitrator appointed by him, or whose appointment he required.

As to method of valuation: see James v. Ont. and Quebec Ry. Co., 15 A. R. 1; 12 O. R. 624.

Future damages included: Evans v. Atlantic and N. W. Ry. Co., M. L. R. 6 S. C. 493.

Effect of severance: Paint v. The Queen, 18 S. C. R. 718; In re Ont. and Q. Ry. Co. and Taylor, 6 O. R. 338.

Depreciation: Guay v. The Queen, 17 S. C. R. 30.

Loss of profits: St. Catharines Ry. Co. v. Norris, 17 O. R. 667; Todd v. Town of Meaford, 6 O. L. R. 469; 2 O. W. R. 12, 779. Re Cavanagh and Canada Atlantic Ry. Co., 9 O. W. R. 842. Injury to lands not taken: Re Birely v. T. H. & B. Ry. Co., 28 O. R. 468.

O.R.A.-4.

Personal inconvenience: Powell v. T. H. & B. Ry. Co., 25 A. R. 209; St. Louis S. F. & T. Ry. Co. v. Shaw, 6 L. R. A. (U.S.) 245.

Injuriously affected: In re T. H. & B. Ry. Co. and Kerner, 28 O. R. 14; Regina v. Eastern Counties Ry. Co., 2 Q. B. 347; Metropolitan v. McCarthy, L. R. 7 H. L. 243.

Deviation and closing street: In re Medler and Arnott and Toronto, 4 Can. Ry. Cases 13.

Alteration in street, access, smoke: Re Macdonald and T. H. & B. Ry. Co., 2 O. W. R. 721, 723.

Proceeding on wrong principle: G. T. Ry. Co. v. Coupal, 28 S. C. R. 531; Fairman v. Montreal, 31 S. C. R. 210.

Insufficient compensation: In re Armstrong and James Bay Ry. Co., 12 O. L. R. 137.

Single Court. July 8, 1907. Falconbridge, C.J., in Re Tolsma and Canada Southern R. W. Co. On appeal by Charles L. Tolsma from the award of two arbitrators (one arbitator dissenting) as to the value of lands taken for the railway, on the ground of insufficiency of amount, held, that though larger compensation might, in the evidence, have been awarded, the court ought not, having regard to all the authorities on the subject, to interfere.

Under sec. 198 of the Railway Act (Dom.), the increased value of the remaining lands by reason of the railway must be considered : see Paint v. The Queen, supra.

The damage to which a party is entitled is only damage to land or an interest in land, and the Birely case, supra, would appear to be overruled by the Powell case: see also St. Catharines Ry. Co. v. Norris, 17 O. R. 667, and Bowen v. C. S. Ry. Co., 14 A. R. 1; but see Long v. Midland Ry. Co. (1902), 2 K. B. 574.

Access to waterway, &c., cut off: Quillinan v. C. S. Ry. Co., 6 O. R. 567; Mason v. South Norfolk Ry. Co., 19 O. R. 132; Knill v. G. T. R., 8 O. W. R. 870.

Damage not to be in respect to any particular use to which property is put to: Re Devlin and Hamilton and Lake Erie Ry. Co., 40 U. C. R. 160.

No action lies when arbitration proceedings proper remedy: Todd v. Town of Meaford, 6 O. L. R. 469; 2 O. W. R. 12. 779); Peterborough v. G. T. R. Co., 32 O. R. 154, 1 O. L. R. 144; but see Hanley v. T. H. & B. Ry. Co., 11 O. L. R. 91; 6 O. W. R. 841, 5 Can. Ry. Cases 25; and Inverness, &c., Ry. Co. v. McIsaac, 37 S. C. R. 134. 6 Can. Ry. Cases 421; Wicher v. C. P. Ry. Co., 6 Can. Ry. Case! 181

Business losses: The Burnt District Case, 4 Can. Ry. Cases 290; Liquor license-good will: Re Cavanah and Canada Atlantic Ry. Co., 9 O. W. R. 842.

Interest on amount awarded: Ib.

As to fixtures placed on land by company before filing plan: see Ruttan and Dreifus v. Canadian Northern Ry. Co., 7 O. W. R. 568; 12 O. L. R. 187.

(10) In any arbitration under this Act, the costs of the arbitration shall be in the discretion of the arbitrator or arbitrators, and if they are to be borne by the opposite party to the company, may be deducted from the compensation

awarded, and in any case they may, if not agreed upon, be fixed by the arbitrator or arbitrators, or taxed by one of the taxing officers of the Supreme Court of Judicature.

Compare sec. 199 of Dominion Act where fixed rule governs: see Re Oliver and Bay of Quinte Ry. Co., 7 O. L. R. 567, 3 Can. Ry. Cases 368.

Company's remedy to recover: In re Foster and G. W. Ry. Co., 32 U. C. Q. B. 503.

Owner not entitled to lien on the land for costs of the arbitration Ferrars v. Stafordshire, &c., Ry. Co., L. R. 13 Eq. 524.

66

'Costs" includes fees, counsel fees and expenses: sub-section 7 of sec. 2.

(11) The arbitrators, or a majority of them, or the sole arbitrator, may examine on oath or solemn affirmation the parties, or such witnesses as appear before him or them, and may, administer such oath or affirmation.

(12) Any party to an arbitration under this Act may, without leave or order, obtain and issue out of the High Court upon præcipe, setting forth the names of the witnesses to be subpoenaed, the names of the arbitrators, and the place and time of meeting, a subpoena commanding the attendance for examination of any witness, and also the production of any document to or before the arbitrator or arbitrators, and at the time and place mentioned in such subpœna; and the disobedience of such subpoena shall be deemed a contempt of court, and shall be punishable in the same manner and to the like extent as in the case of subpoenas issued in a civil case.

(13) The like fees shall be payable for such subpoenas as in the case of subpoenas issued in civil cases, and the witnesses shall be entitled to the like conduct money.

(14) The evidence shall be taken down in writing, and after making their award the arbitrators shall forthwith deliver or transmit by registered letter, at the request of either party in writing the depositions, together with the exhibits referred to therein, and all papers connected with the reference, except the award, to the central office of the High Court of Justice, with the proper stamps (which shall be furnished by the party making the request) to be filed with the Records of the Court.