THE CANADIAN PACIFIC RAILWAY COMPANY Vs. KING

JUDGEMENT

(1.) This appeal was brought against a judgment of the Supreme Court of Canada, which in part, dismissed the appellant's appeal, and in part allowed the respondent's appeal, from a judgment of the Exchequer Court of Canada in proceedings, in which the Crown, on the information of the Attorney-General of Canada, was plaintiff, and the Canadian Pacific Railway Company (the appellant here) was defendant. The object of the proceedings was to obtain the removal from the roadway and lands of the Intercolonial Railway, of the appellant's line of telegraph poles and wires. The Intercolonial Railway forms part of the Canadian Government Railways system, and its roadway lies in the provinces of New Brunswick and Nova Scotia.

(2.) The appellant's telegraph line was, at the date of the filing of the information (15 September 1926), substantially all erected upon and carried along the Intercolonial Railway's roadway. The telegraph line forms part of a telegraph system worked by the appellant, and is of undoubted importance both to itself and to the public, inasmuch as it connects with the cable station at Canso, as well as with Halifax and other important points in the Maritime Provinces. For the purpose of determining the rights of the parties the Supreme Court, in considering the case, divided the appellant's telegraph line into three sections. This appears to their Lordships to be a convenient course, and they propose to adopt it in this judgment. The three sections are as follows: (a) The "Main Telegraph Line," viz., from Coldbrook near St. John through Moncton and Truro to Fairview Junction near Halifax, and from Truro to New Glasgow. This was constructed in the years 1888, 1889 and 1890. (b) The "Branch Telegraph Line," viz., from New Glasgow to Sydney. This was constructed in 1893. (c) The "Westville Telegraph Line," viz., from Westville to Picton. This was constructed in 1911.

(3.) It will be necessary to consider the circumstances in which each of these sections was constructed, where the poles were placed, and how it came about that eventually substantially the whole system came to be situated on the lands of the Intercolonial Railway. But before doing so it will be advisable to state exactly what were the claims which were put forward by the Crown, and how each Court has dealt with those claims.