430 EXCHEQUER COURT REPORTS. [VOL. VI. 1900 IN THE MATTER OF THE PETITION OF RIGHT OF June 28. - JAMES S. GIBBON AND CHARLES 1 SUPPLIANTS. H. GIBBON .. AND HER MAJESTY THE QUEEN RESPONDENT. AND THE SAINT JOHN TERMINAL THIRD PARTY. RAILWAY COMPANY ......... . Lease—Expropriation of demised property—Lessees' loss of profits—Increased cost of carrying on business—Measure of damages. The suppliants were lessees of certain land and premises expropriated for the Intercolonial Railway. The premises had been fitted up and were used by them for the purposes of their business as coal merchants. By the terms of the lease under which they were in posse.4,ion the term for which they held could at any time be determined by the lessors by giving six months' notice in writing, in which event the suppliants were to be paid two thousand five • hundred dollars for the improvements they had made. Held, that the measure of compensation to be paid to the suppliants was the value at the time of the expropriation of their leasehold interest in the lands and premises. Apart from the sum payable for improvements there was no direct evidence to show what the value was. But it appeared that the suppliants had procured other premises in which to carry on their business, and that in doing so they had of necessity been at some loss and that the cost of carrying on their business had been increased. The amount of the loss and of increased cost of carrying on business during the six months succeeding the expropriation proceedings was in addition to the sum mentioned taken to represent the value to them or to any person in a like position of their interest in the premises. The suppliants also contended that if they bad not been disturbed in their possession they would have increased their business, and so have made additional profits, and they claimed compensation for the loss of such profits, but this claim was not allowed.
VOL. VI.] EXCHEQUER COURT REPORTS. PETITION OF RIGHT for damages resulting from the expropriation of property whereof the suppliants were lessees. The suppliants were lessees of certain premises in the City of Saint John, N.B., which were required for the purposes of the Intercolonial Railway tenancy, and while their term had six months more to run, they received notice to quit on behalf of the Do- minion Government ; and, acting on such notice, they o left the property and secured other premises wherein to carry on their business. They brought a petition of right for loss of profits and incidental damages. The other material facts are stated in the judgment. June 14th and 16th, 1900. The case came on for trial at St. John, N.B. before the JUDGE OF THE EXCHEQUER COURT. clusion of the trial. counsel asked that the argument be postponed to be heard at Ottawa. June 28th, 1900. The argument of the case was proceeded with at Ottawa. C. N. Skinner, Q. C. for the suppliants, contended that the suppliants were entitled to the loss of the profits they would have been entitled to if they had been allowed to carry on their business on the prerr ices taken. In addition to this they were entitled to the increased cost they were put to by reason of carrying bn their business elsewhere during the remainder of the term. H. A. .McKeown, for the Crown, argued that the suppliants were not entitled to loss of profits which they might 'never have earned. A. P. Barnhill replied. - A. A. Stockton, . Q.C. appeared for The St. John Terminal Railway Company (Third Party). 431 1900 GIBBON V. Tan QUEEN. TEE .Durin ~ g their SAINT JOHN TERMIN AZ RAILWAY COMPANY, A f r C g o u u m n e se n l t , At the con
432 EXCHEQUER COURT REPORTS. [VOL. VI, 1900 At the conclusion of the argument judgment was GIBBON given for the suppliants in the sum of $8,296 and costs. T$E Reasons for judgment having been subsequently QUEEN. asked for, His Lordship handed the following to the THE Registrar :— SAINT JOHN TERMINAL It was thought by the court that in view of the RAILWAY expropriation proceedings of the 20th August, 1898, COMPANY. the telegram of the Acting Minister of Railways and Re fo a r s ons Canals, of August 19th, 1898, to Mr. A. A. Stockton, Judg-ment. Mr. Stockton's notice to the suppliants of August 25th, 1898, and Mr. W. B. Mackenzie's notice, as Chief Engineer, to the suppliants, of the 8rd of September, 1898, the suppliants were fully justified in securing other premises in which to carry on their business of coal merchants, and in selling out as quickly as possible, and in the manner in which it was done, the coal stored at the time in the premises at the Long Wharf. It was not possible for them even at an increased charge for rent to get premises as suitable as those they had had for their business, and in consequence the business was carried on at an increased expense to them. It was thought that what the suppliants were entitled to as compensation was the value at the time of the expropriation proceedings of the leasehold interest held by them in the Long Wharf property. Under their lease they were entitled to be indemnified for their improvements to the extent of twenty-five hundred dollars, and to the possession of the premises for six months after notice. But for Mr. Mackenzie's notice, the effect of which was to make the possession which the Crown. permitted the suppliants to retain of very little value, the suppliants might have been put to very little loss, if any. Nor was the effect of this letter in any way destroyed by the notice subsequently given to terminates the lease. The Crown
VOL. VI.] EXCHEQUER COURT REPORTS. 433 was entitled to take possession of the premises imme-1900 diately the plan and description were filed. (The a I ôN Expropriation Act, secs. 8 and 21.) The possession that TgE Mr. Mackenze's letter left to the suppliants was tem- QUEEN. porary and for a limited object ; a possession that did THE, not permit the latter to store on the premises coal SAINT JOHN TERMINAL arriving was not worth much. RAILWAY With reference to the value of the six months' pos- COMPANY. session of the premises in question there is no direct "" ô=' evidence. There is in fact no evidence except that of au".11s. James S. Gibbon, one of the suppliants. His evidence . has not, in. the proceedings before the court, been in any way challenged either by a demand for the pro- duction of his books or by calling other witnesses. What he states, therefore, as to his losses or the increased cost of carrying on his business the court accepts as being true. He does not directly express any view as to the value of the six ,months possession of the premises to any one, in a like situation with the sup- pliants ; but he gives figures to show -the increased cost at which the business was carried on during these six months, because the suppliants were deprived of the beneficial possession of the premises. He also sets up that he lost "profits that otherwise he might have made. These have not been taken into consideration. But the actual increased cost by reason of the expro- priation proceedings and what followed thereon, of carrying on the business for the six months, has, in the absence of any other evidence, been taken as the measure of what. the value of the six months' posses- sion would have been to any one in the suppliants' position. The following are the items of such increased cost of carrying on business and of the losses as claimed by the suppliants : 29
434 EXCHEQUER COURT REPORTS. VOL. VI. 1900 Expenditure for improvements $ 7,600 00 dI ôN (Of this sum $2,500.00 was allowed under THE the terms of the lease, and an allowance QUEEN. of ten per cent. because of the compulsory THE proceedings. But for the expropriation SAINT JOHN TERMINAL proceedings the suppliants might have RAILWAY had a much longer enjoyment of the im- COMPANY' provements they had made.) g~ fo .o r a. Rent paid for new places during the six Judgment. months were as follows : Morrison $ 800 00 De Bury 162 00 962 00 Less half year's rent under the lease, $450.00 Loss on rent for six months 512 00 (This item was not objected to by counsel for the Crown.) L' ss on slack coal ... 500 00 Loss on soft coal 200 00 15 per cent. loss on reasonable increase of $20,000 3,000 00 (These three items were objected to by counsel for the Crown, and were withdrawn by counsel for the suppliants on condition that judgment should be entered up:at the time for them for other items.) 25 cents a ton loss on handling 10,000 tons of coal because of losing Long Wharf facilities 2,500 00 (Counsel for the Crown objected to this item that there was no evidence that the suppliants actually handled 10,000 tons of coal during the six months. But the evidence being pointed out, the objection was not pressed. The evidence shows
VOL. VI.] EXOHpQUE R COURT REPORTS. clearly how there might be this increased cost of handling the coal, because the sup-pliants could not use the very modern appliances with which they had pro-vided themselves.) Loss on cross hauling (The cost of hauling was increased by rea- son of change of premises.) New scale {Not objected to by counsel for the Crown.) Loss on increased freight ' {This, like the preceding item of $300, represents an increase in the cost of carrying on business that the suppliants would not have been put to if they had retained possession of the premises. Counsel the Crown did not, and I think rightly, press its objection to these two items.) Loss on telephones...,......... (Not objected to by counsel for the Crown.) Loss on selling coal to get out of building on Long Wharf, 35 cents per ton on 1,500 tons. {Counsel for the Crown objected to this item on' the ground that under Mr. Mackenzie's letter the suppliants might have sold out in the usual way and without lowering the price to make quick sales. But because of the additional expense and trouble of carrying on business in several places at the one. time I thought the suppliants had ,acted reasonably and prudently in taking the means they did of._selling out the coal stored at the Long Wharf as quickly as possible, • and allowed the item.) 29% 435 1900 GIBBON n. TUE QUEEN. TH~, 300 .SAINT SO . gN 0 0 t Tzâ*NAI. RAILWAY C63iPANY. Seasons ~ 0 00 ,R~ea ~. 600 00 po ,00 525 .00
436 EXCHEQUER COURT REPORTS. [VOL. VL 1900 Loss on coal compelled to sell from vessels GIBBON because they could not get storage. 375 00 THE (Objection to this was not pressed.) QUEEN. Interest THE (Interest as allowed not objected to by SAINT JOHN TERMINAL counsel for the Crown.) RAILWAY Extra men at each delivery. COMPANY. (Abandoned by the suppliants.) Roamons Jud gment. Total claim S 16,472 00 Of which the following items as stated above were allowed, as constituting under the evidence the com-pensaticn to which the suppliants were entitled : Improvements . $ 2,500 00 Ten per cent. on that 250 00 Half year's rent 512 00 Loss on handling 10,000 tons of coal at 25 cts. 2,500 00 Loss on cross hauling 300 00 New scale 50 00 Loss on increased freight 600 00 Loss on telephone 60 00 Thirty-five cents on 1,500 tons .... 525 00 Loss on coal sold on vessels 875 00 Compensation assessed at 7,672 00 Interest on same from 20th February, 1899 624 00 $ 8,296 00 Judgment for suppliants for $8,296 and costs. The case between the Crown and the third party was reserved. Judgment accordingly. Solicitor for suppliants : A. P. Barnhill. Solicitor for respondent : H. A. McKeown. Solicitor for third party : L. A. Stockton.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.