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Granting

tolls, when.

To exact tolls, when.

TOLLS ON, MAY BE Granted.

14. For granting to any person, in consideration or part right to take consideration of planking, gravelling or macadamizing a road, or of building a bridge, the tolls fixed by By-law to be levied on the work for a period of not more than twenty-one years after the work has been completed and after such completion has been declared by a By-law of the Council authorizing tolls to be collected. And the grantee of such tolls shall, during the period of his right thereto, maintain the road or bridge in repair. (1)

When a road is substi

tuted for an original allowance.

OLD HOAD ALLOWANCES.

318.-In case any one in possession of a Concession road or side line has laid out and opened a road or street in place thereof without receiving compensation therefor, or in case a new or travelled public road has been laid out and opened in lieu of an original allowance for road, and for which no compensation has been paid to the owner of the land appropriated as a public road in place of such original allowance, the owner, if his lands adjoin the concession road, side line, or original allowance, shall be entitled thereto, in lieu of the road so laid out, (m) and the Council of the Municipality upon the report in writing, of its Surveyor, or of a Deputy Provincial Land Surveyor, (n) that such new or travelled road is sufficient for

construction of Roads and other Works in Upper Canada, is 16 Vic. cap. 190. In addition to this, there are, no doubt, private acts of incorporation.

(1) A grant for a term of years is authorized for a consideration stated. The grant is to be of the rates fixed by by-law to be levied, &c. The term is not to be more than twenty-one years; and the consideration, or part consideration, is to be that of planking, gravelling, or macadamizing the road, &c., or of building a bridge, &c.

(m) So far, this section provides for two cases; first, where a person in possession of a concession road or side line has himself laid out and opened a road, &c., in place thereof; secondly, where a new or travelled road has been laid out and opened by, it is conceived, the proper authority, in lieu of an original allowance for road, &c. In either of these cases, if no compensation has been paid to the owner of the land, and if his lands adjoin the concession road, side line, or original allowance, he shall be entitled to the original road allowance in lieu of the road laid out. But though entitled, it would appear from what follows, that to make his title complete there must be a conveyance from the Municipal Council to him of the original road allowance.

(n) If the Municipal Council has a surveyor in its employment, the report is to be by him; if not-by any deputy provincial land surveyor.

1

the purposes of a public highway, (o) may convey the said original allowance for road in fee simple to the person or per-t sons upon whose land the new road runs, (p) and when any such original road allowance is, in the opinion of the Council, useless to the public, and lies between lands owned by different parties, the Municipal Council may, subject to the conditions aforesaid, sell and convey a part thereof to each of such parties as may seem just and reasonable; (9) And in case Conveying compensation was not paid for the new road, and the person road allowthrough whose land the same passes does not own the land ad- ance. joining the original road allowance, the amount received from the purchaser of the corresponding part of the road allowance when sold, shall be paid to the person who at the time of the sale owns the land through which the new road passes. (r)

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POSSEESION OF ROAD ALLOWANCES.

of former

allowances

deemed legal

is passed for

319.-In case a person is in possession of any part of a Original Government allowance for road laid out adjoining his lot and for roads, enclosed by a lawful fence, and which has not been opened for when to be public use by reason of another road being used in lieu there- ly possessed of, or is in possession of any government allowance for road till a by-law parallel or near to which a road has been established by law opening in lieu thereof, such person shall be deemed legally possessed thereof as against any private person, until a By-law has been passed for opening such allowance for road by the Council having jurisdiction over the same. (s)

(0) The surveyor, on making his report, cannot do better than adopt the very language of this section." He should in his report be particular to show the exact width of the road and the line it is to run. (The King v. Sanderson, 3 U. C. O. S. 103; see also Purdy v. Farley, 10 U. C. Q. B. 545.)

(p) It is not said whether the conveyance should be effected by bylaw or by ordinary deed of conveyance. The proper course would be, it is apprehended, to pass a by-law authorizing the conveyance, and afterwards, in pursuance thereof, to execute a formal deed of conveyance. (In re Choate et al. and the Municipality of the Township of Hope, 16 U. C. Q. B. 424.) The power to sell the allowance for road exists when, in the opinion of the Council, it is useless to the public; as to which see Purdy v. Farley, 10 U. C. Q. B. 545.

(4) The expression, "subject to the conditions aforesaid," refers to the report of the surveyor, &c.

(r) If the person from whom the land for the new road is taken has not land adjoining the old road allowance, the allowance would be of little or no use to him. For this reason it is provided that in such case the allowance shall be sold, and the proceeds paid to the person whose land is taken for the new road.

(s) This section provides for the security of, first, a person in possession of any part of a Government allowance for road, &c., not

them.

By-law for

roads, &c., to

NOTICE OF BY-LAWS FOR OPENING SUCH ALLOWANCES.

320.-But no such By-law shall be passed until notice în opening, &c., writing has been given to the person in possession, at least require eight days before the meeting of the Council, that an application will be made for opening such allowance. (t)

notice.

Aiding Coun

AIDING COUNTIES IN MAKING ROADS AND BRIDGES.

321.-The Municipal Council of every Township, City, Town and Incorporated Village, (u) may pass By-laws; (v) 1. For granting to the County or United Counties in which ties in mak- such Municipality lies, aid, by loan or otherwise, towards openand bridges. ing or making any new road or bridge on the bounds of such Municipality (w)

ing roads

opened for use "by reason of another road being used in lieu thereof;" and secondly, a person in possession of any Government allowance for road, parallel or near to which "a road has been established by law in in lieu thereof," &c. A person so circumstanced is to be deemed legally possessed as against any "private person," but not as against the Crown; and he is to be deemed so possessed "until a by-law has been passed for opening such allowance," &c. So that as well against private persons as Municipal Councils, until a by-law is passed for opening, &c., he is to be deemed legally possessed. By an act of 1810, all allowances for roads laid out by public authority were declared, whether opened or not, used or not, "public highways;" (50 Geo. III. cap. 1, sec. 12) but for the security of persons in possession of them when not used, it was in 1846 enacted that no allowance for road in possession of a private person should be opened unless upon notice to him, and the passing of an order of the proper municipal authority. (9 Vic. cap. 8.) Both these enactments are now repealed by sec. 403 of this act, but are in substance reënacted. A person in possession of a road allowance where a new road has been opened or is used in lieu of it, to save himself from all disturbance, had better acquire a legal title thereto, pursuant to sec. 318 of this act. (See Purdy v. Farley, 10 U. C. Q. B. 545.)

(1) Such was the old law. (See preceding note.) As to the computation of the time ("at least eight days before, &c."), see note d to

sec. 97.

(u) Counties are not here mentioned, because the object of the section is to enable the Councils of the Municipalities named to assist the Councils of Counties.

(v) By-laws.-Ses note v. to sec. 186.

(w) As a rule, Councils of Municipalities, less than Counties, have not power spontaneously to assess themselves for county purposes. (See note u to sec. 186.) The power given by this clause is to grant aid by loan or otherwise towards opening or making any new road, i. e. not stating whether the same may be done voluntarily, or only upon the solicitation of the Council of the County.

with other

2. For entering into and performing any arrangement with Joint works any other Council in the same County or United Counties, (x) Municipali for executing, at their joint expense and for their joint benefit ties. any work within the jurisdiction of the Council. (y)

HIGHWAYS IN CITIES, TOWNSHIPS, TOWNS AND
INCORPORATED VILLAGES.

cities, towns,

ges, how far

322.-Every public road, street bridge or other highway, Streets in in a City, Township, Town or incorporated Village, shall be and incorpovested in the Municipality, (z) subject to any rights in the rated villasoil which the individuals who laid out such road, street, bridge vested in or highway, reserved; (a) and except any concession or other Municipaliroad within the City, Township or Town or incorporated Village, taken and held possession of by an individual in lieu of a street, road or highway, laid out by him without compensation therefor. (b)

(z) A distinction is made in this section between counties and other municipalities. The clause here annotated applies to Councils other than County Councils.

(y) A bridge between two Municipalities-Townships, for example-divided by a stream, is a good example of a work that may be executed at "joint expense" and for "joint benefit."

(z) This section it will be observed applies to Cities, Townships, Towns and Incorporated Villages. The old Act 13 & 14 Vic. cap. 15, applied to Cities and Towns only. "Townships" were introduced by the Legislative Council after the bill had passed the Legislative Assembly; and the introduction of them may give rise to a question, how far roads owned by the government, sold by the government to companies or otherwise owned by companies, are liable to be affected by this section. So long as the law was confined to Cities and Towns, and perhaps Incorporated Villages, there could be no conflict, as the roads or parts of roads therein did not pass from the government to private companies. To obviate the difficulty it will be necessary to read the section under consideration in reference to sec. 404, which provides that statutes not mentioned in this Act are not to be affected by it. Neither the 9 Vic. cap. 37, secs. 7, 12, 13, 23, sch. A.; nor 10 & 11 Vic. cap. 24, as to roads owned by government; nor 12 Vic. cap. 5, secs. 12 and 13; nor 14 & 15 Vic. cap. 57, sec. 1, respecting the sale of public works, including certain roads; nor 16 Vic. cap. 190, respecting joint stock road companies, are mentioned in this Act and are therefore not affected by it, as to the rights acquired under them. Besides it is also expressly enacted that no Council shall interfere with any public road or bridge vested as a provincial work in Her Majesty, or in any public department or board. (Sec. 303.)

(a) It is seldom if ever, in Upper Canada, that a person granting land for a public road makes any reservation as to the soil.

(b) If this section were read alone, it might be inferred that concessions or other roads taken and held possession of by an individual, in lieu of a street, &c., laid out by him, without compensation, are

ties.

To be kept in

Corporation, on pain of damages.

323.-Every such road, street, bridge and highway shall repair by the be kept in repair by the Corporation, (c) and the default of the Corporation so to keep in repair, shall be a misdemeanor punishable by fine in the discretion of the Court, (d) and the Corporation shall be further civilly responsible for all damages sustained by any person by reason of such default, (e) but the action must be brought within three months after the damages have been sustained. (f) And this Section shall not apply to any road, street, bridge or highway laid out without the consent of the Corporation by By-law, until established and assumed by By-law. (g)

LOCAL IMPROVEMENTS OF STREETS.

324.-The Council of every City, Town and Incorporated Village, (h) may also pass By-laws, (i) for the following

purposes:

not vested in the Municipality; but unless such a person hold a conveyance of such concession, &c., obtained under sec. 318, it is conceived his title would only be possession under sec. 319, subject to be terminated as therein enacted. (See Purdy v. Farley, 10 U. C. Q. B. 545.)

(c) It was held, under the Municipal Act of 1849, that a Municipal Council of a township had not power to appropriate the revenue arising from a tax imposed on the owners of dogs in only one part of the township, to the improvement of the public streets and to other purposes within the limits of such part of the township. (In re Richmond v. the Municipality of the Front of Leeds and Lansdowne, 8 U. C. Q. B. 567.)

(d) Misdemeanor.-See note r to sec. 45. As a corporation cannot be compelled at the assizes or sessions to appoint an attorney, an indictment found against it must be by certiorari, moved into one of the superior courts of common law, and then proceedings be had by venire facias and distringas, if necessary, to compel the corporation to appear and plead to the indictment. (Archbold's Crown Office, 171.) When issue is joined, a record may be made up and sent down for trial before a jury, as in an ordinary case. (Ib.)

(e) Whenever it is made the duty of a corporation to do a particular thing-keep a highway in repair, for example-if from neglect of that duty injury results to a private individual, a remedy generally follows.

(f) The months intended are calendar months. (12 Vic. cap. 10, sec. 5, subsec. 11.)

(g) By-law.-See note v to sec. 186.

(h) Neither counties nor townships are mentioned. The provisions of this section are such as do not apply to rural municipalities.

(i) By-laws-See note v to sec. 186.

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