1903-07-08

QUESTIONS.


[Stage Direction]
Mr. WADE-by Mr. Campbell-asked:
1.	What is the address and occupation of Mr. J. B. Metts, of Annapolis, N.S., whose name appears on page B-6 of the Auditor General's Report for the year ending June 30, 1902, as being in arrears to the Department of Militia and Defence ?
2.	When and how did such indebtedness arise ?
3.	Has the correctness of said claim ever been disputed ?
The MINISTER OF MILITIA AND DEFENCE (Hon. Sir Frederick Borden) :: 
I.C.R.-RATE FOR CARRIAGE OF COAL.
[Stage Direction]
Mr. KENDALL-by Mr. Calvert-asked :
1.	What is the rate per mile charged by the Intercolonial Railway for carrying coal for the short and long hauls ?
2.	What is the cost of such traffic per mile ?
3.	What is the rate per ton of coal from Spring Hill Junction to Moncton, St. John, Quebec, Montreal and St. Hyacinthe ?
4.	What is the rate from Stellarton to the same points ?
5.	What is the rate from Sydney and North Sydney to the same points ?
6.	What is the rate from Stellarton to Port Mulgrave ?
7.	What is the rate from Sydney to Point Tupper ?
8.	What is the estimated cost of transfer of coal at the Strait of Canso ?
9.	What is the rate for carriage of coal from Sydney and North Sydney to New Glasgow ?
10.	What are the rates from Sydney and Stellarton, respectively, to Halifax ?
The MINISTER OF RAILWAYS AND CANALS (Hon. A. G. Blair).: This is information that cannot be given by means of an answer to a question.


Mr. AVERY.: 


COMMISSIONERS TO INVESTIGATE ACCIDENT AT WEST LORNE.
Mr. CLARKE asked :: 1.	Where do Messrs. J. E. Duval and Gerald Ruel, the commissioners appointed by the government to report upon the causes of the fatal railway accident at West Lome, reside 1
2.	Are both of the gentlemen engineers, or have they had any experience in railroad operation or management ?
3.	What is the profession, or occupation, of each of the gentlemen ?


The MINISTER OF RAILWAYS AND CANALS (Hon. A. G. Blair) :: 1.	In the city of Ottawa.
2.	Neither is an engineer. Mr. ,T. E. Duval has had long and varied experience in railway operation and management, Mr. Ruel only as regards legal matters.
3.	Mr. Ruel is a lawyer of high standing, and is in the Department of Railways and Canals. Mr. Duval is a member of the operating staff of the Canada Atlantic Railway.


P.E.I. RY.-CONSTRUCTION OF BRANCH LINE.
Mr. HACKETT asked :: 1.	Has the government received a petition from the inhabitants of Lots 6, 7, 8, and 9, in Prince county, province of Prince Edward Island, asking for the construction of a branch line of railway from, at or near, O'Leary Station, to a point at or near Cape Wolfe ?
2.	If so, is it the intention of the government to proceed immediately with the construction of said branch railway ?


The MINISTER OF RAILWAYS AND CANALS (Hon. A. G. Blair) :: 1.	Yes.
2.	The subject is under consideration.


COMMISSION ON LUMBER TRADE.
Mr. SCOTT asked :: 1.	Has a commission been appointed to hold inquiry into the matter of complaints arising in Manitoba and the North-west Territories, concerning the lumber trade ?
2.	If so, who has been appointed commissioner ; when and where will the commission begin the inquiry; and what is the scope of such inquiry ?


The MINISTER OF FINANCE (Hon. W. S. Fielding).: In answer to the question of the hon. member (Mr. Scott) I may say that a commission has been appointed for the purpose of inquiring into the alleged lumber combine, that the commissioner is Mr. Justice Richards, of the province of Manitoba, and that the time at which he is to begin the investigation is necessarily left to his own discretion. He has informed me that he will be able to undertake the work as soon as the routine business in connection with this court is disposed of. I understand the investigation will begin at once.


PAYMENTS ON MANITOBA SCHOOL LANDS.
Mr. McCREARY asked :: In deciding to pay over to the province of Manitoba interest upon the deferred payments upon the sale of school lands, was the government influenced by instructions, advice or suggestions from the Colonial Secretary, or any one acting on behalf of the imperial government ?


The PRIME MINISTER (Rt. Hon. Sir Wilfrid Laurier).: In deciding to make the payment referred to, the government was not influenced by anything except its own conception of wise public policy. No instructions, suggestions or advice of any kind upon the subject have ever been conveyed either directly or indirectly, orally or in writing, on behalf of the imperial government or any of its members.


LEAD BOUNTIES.
[Stage Direction]
The MINISTER OF FINANCE (Hon. W. S. Fielding) moved that the House go into committee to-morrow to consider the following proposed resolution :
That it is expedient to repeal chapter 8 of the statutes of 1901, intituled : ' An Act to provide for the payment of bounties on lead refined in Canada,' and to enact as follows :
1.	The Governor in Council may authorize the payment of a bounty of seventy-five cents per one hundred pounds on lead contained in leadbearing ores mined in Canada; such bounty to be paid to the producer or vendor of such ores, upon evidence that such ores have been smelted in Canada. Provided, that the sum to be paid as such bounty shall not exceed five thousand dollars in any fiscal year. Provided, also, that when it appears to the satisfaction of the minister charged with the administration of this Act that the standard price of pig lead in London, England, exceeds twelve pounds ten shillings1 sterling per ton of two thousand two hundred and forty pounds, such bounty shall be reduced proportionately by the amount of such excess.
2.	Payment of the said bounty may be made from time to time to the extent of sixty per centum of the full bounty authorized, subject to the adjustment at the close of each fiscal year. If at the close of any year it shall appear that during the year the quantity of lead produced, on which the bounty is authorized, exceeds thirty-three thousand1 three hundred and thirty-three tons' of two thousand pounds, the rate of bounty shall be reduced to such sum as will bring the payments for the year within the limit mentioned in section one.
3.	If at any time it shall appear to the satisfaction of the Governor in Council that the charges for transportation and treatment of lead ores in Canada are excessive, or that there is any discrimination which prevents the smelting of such ores in Canada on fair and reasonable terms, the Governor in Council may authorize the payment of bounty at such reduced rate as may be deemed just, on the lead contained in such ores* mined in Canada and exported for treatment abroad.
4.	The said bounties shall cease and determine on the thirtieth day of June, one thousand nine hundred and eight.
5.	The Governor in Council may make regulations for carrying1 out the intention of this Act.
He said : I beg to say that His Excellency the Governor General, having been made acquainted with the subject matter of this resolution, recommends it to the consideration of the House.
Motion agreed to.

[Stage Direction]
House again in committee on Bill (No. 21) to amend and consolidate the law respecting railways.-The Minister of Railways and Canals.
The MINISTER OF FINANCE.: If the committee would permit me, I would ask that it should rise, report progress and ask leave to sit again this day, as I would like to take the final stages in the Supply Bill. It is a purely formal matter, and will occupy only a few minutes.


Mr. BORDEN (Halifax).: Very well.
Progress reported.



INTERIM SUPPLY BILL.

[Stage Direction]
House went into Committee of Ways and Means to consider supplies to be granted to His Majesty.
['This Railway Bill and one or two Bills on the Order Paper that may be dealt with, and if we reach Supply we will take up the estimates of the Department of the Interior.']
The MINISTER OF FINANCE moved :: Resolved, that towards making good the supply granted to His Majesty on account of certain , expenses of the public service for the financial year ending 30th June, 1903, the sum of $708,179.52 be granted out of the Consolidated Revenue Fund of Canada.


[Stage Direction]
Resolution agreed to.
['Resolved, that towards making good the supply granted to His Majesty on account of certain , expenses of the public service for the financial year ending 30th June, 1903, the sum of $708,179.52 be granted out of the Consolidated Revenue Fund of Canada.']
The MINISTER OF FINANCE.: With regard to the sums which the committee has passed for the current fiscal year, I beg to move :
Resolved, that towards making good the supply granted to His Majesty on account of certain expenses of the public service for the financial year ending 30th June, 1904, the sum of $18,342,669.39 be granted out of the Consolidated Revenue Fund of Canada.


Robert Laird Borden: This covers the items that have been passed and also the 20 per cent ?


The MINISTER OF FINANCE.: Yes.


Robert Laird Borden: Will it not be a little inconvenient to deal with the two in the one Bill ?


The MINISTER OF FINANCE.: I think not ; it is the usual method. They form the one Supply Bill, but they will be separated in the Bill.


Robert Laird Borden: Very good.
Resolutions reported, read the first and second time, and agreed to.
The MINISTER OF FINANCE moved for leave to introduce Bill (No. 218) entitled an Act for granting to His Majesty certain sums of money for the public service for the financial years ending respectively the 30th June, 1903, and the 30th June, 1904.

Motion agreed to ; Bill read the first and second time, and House went into committee thereon.


Mr. SPROULE.: What portion of the estimates are we voting now ?


The MINISTER OF FINANCE.: So much of the main estimates as we have passed upon in committee, and one-fifth of that portion of the estimates which have not been taken up.


Thomas Simpson Sproule: Why is the need so urgent for passing these now ? We have only just reached the 1st of July, the financial year has only ended, and payments for the current year will not require to be made so early.


The MINISTER OF FINANCE.: The invariable practice is, after resolutions have passed their various stages, to collect them in the first Supply Bill. We do not need the whole of them at once, I grant; if we had one-fifth of the whole it would be ample; but inasmuch as they have passed the committee, they are all included in the Bill. It is the usual course.


Thomas Simpson Sproule: I regard the principle as an unsound one. The minister says we are adopting the usual course. It is a very unusual course. It is a very rare occurrence to pass a portion of the Supply Bill before the close of the session. I think I remember a few times when a small portion was voted, but it was only when the session was extended far beyond the usual length. You have practically the whole Supply Bill granted except a few items, so that at any time the government might avail themselves of the powers reserved to them without the permission of the House, and even though the opposition were not satisfied. It gives the control of the House into the hands of the government, I think improperly and unwisely for the safety of the country. I think we are establishing a very bad precedent.


The MINISTER OF FINANCE.: I hope my hon.'friend will find, on examination, that we are not establishing any bad precedent ; and if it will make him any more bappy, I think I may go so far as to assure my hon. friend-though I would prefer that this came from the premier-that this House will not be dissolved before we proceed again in Committee of Supply. But as to the principle involved, it is not unusual to have a vote on account. It has been done time and again when the House has found itself in session after the 1st of July. If we had not passed any items in the estimates at all, we would have asked for one-fifth of everything; but it happens that a certain portion of the estimates had been dealt with, and they are included. Soon after the beginning of July, claims will come in, some of them very urgent, though not in every department; but it is convenient to take one-fifth of the whole rather than submit the


Hon. Mr. FIELDING.: estimates of the particular departments in which these urgent claims occur. Before this House will complete the Supply Bill, it will be necessary to pay certain claims. Take, for example, the Militia Department; there is urgent need for the payment of the militia now in camp. The course we are taking is with the single desire to meet the convenience of the public service, and there is no such danger as my hon. friend imagines.


Thomas Simpson Sproule: If only one fifth were taken, it would not be so objectionable; but you have the whole of the supplies for public works, for railways and canals, for customs, and when this Bill goes through you will have practically the Supply Bill for the current year, though one of the main features of your policy, that with reference to the transcontinental railway scheme, is not yet before parliament. We are voting the supplies that will put us under the control of the government for the next year whether we will or not. Suppose we saw fit, after the government had submitted their policy to the House and the country, to refuse the Supply Bill. We could not help ourselves, because we have only held back a very small portion; and I regard it as an abandonment of the proper functions of the opposition to allow that to be done. I could understand the government requiring a small portion to keep the business of the country running; but I cannot understand why they should have practically' the whole of the supplies for the current year for public works, for railways, for canals, for militia, for customs, and other departments. After we have voted them, we are at the mercy of the government.


The MINISTER OF FINANCE.: My hon. friend is wrong in assuming that we have taken so much of the estimates. As a matter of fact, a very large portion of the estimates have yet to be dealt with. We have not yet taken a penny of the estimates for railways, or for canals, or for the Interior Department, except for the past year.


Thomas Simpson Sproule: We passed several items yesterday in connection with the Intercolonial Railway.


The MINISTER OF FINANCE.: My hon. friend is mistaken. The Minister of Railways and Canals has not yet passed his estimates at all. These large spending departments have yet to bring the great bulk of their estimates before the House. The House will have ample opportunity of sitting in judgment on the expenditures of the government, and I have no doubt my hon. friend will avail himself of it.
Bill reported, read the third time, and passed.



[Stage Direction]
House again in committee on Bill (No. 21) to amend and consolidate the, law respecting

railways.-The Minister of Railways and Canals.
On section 184,
The MINISTER OF RAILWAYS AND CANALS proposed to add subsection 2 to this section as amended :
But nothing in this section shall deprive any such company of rights conferred upon it by any special Act of the parliament of Canada or amendment thereof passed prior to the present session of parliament.
Amendment agreed to.
Mr. HENDERSON moved that the following words be inserted:	Af-ter the word
* town ' where it occurs in the section as amended, ' or ether municipality.'
Amendment negatived, on division.
Section as amended agreed to.
On section 192-construction of telegraph and other lines on the highway.
The MINISTER OF RAILWAYS AND CANALS.: I move that the following be inserted as section 192 :
The company may construct and operate telegraph and telephone lines upon its railway for ohe purposes of its undertaking ; and for the purpose of operating such lines or exchanging and transmitting messages, may enter into contracts with any companies having telegraph or telephone powers, and may connect its own lines with the lines of, or may lease its own lines to any such companies.
2.	The company may transmit messages for the public and collect rates or charges therefor, but no rates or charges shall be demanded or taken for the transmission of any message, or for leasing or using the telegraphs or telephones of the company, until such rates or charges have been approved of by the board, and such rates and charges shall be subject to revision by the board.
3.	The Electric Telegraph Companies Act shall apply to the telegraphic business of the company.
And also that the heading of the section be amended to read ' Construction of telegraph, telephone and other lines or wires.'


Mr. MACLEAN.: Is it intended under this clause to control the telegraph rates of the Canadian Pacific Railway Company ? They have now a telegraph company and are doing a large business. They also have a clause in their special charter, I believe, which takes their rates out of the control of parliament for a certain time. Will those rates be subject to the control of the Governor in Council under this clause ?


The MINISTER OF RAILWAYS AND CANALS.: We are not dealing only with those lines established in connection with the railways.


William Findlay Maclean: But the Canadian Pacific Railway Company has a line.


The MINISTER OF RAILWAYS AND CANALS.: We are not dealing with that, and I would certainly not propose to interfere with any contract made on the subject.


William Findlay Maclean: I think the hon. minister must have misunderstood me. He is taking control of the rates of other telegraph lines of railway companies doing public business. Does this apply to the telegraph lines of the Canadian Pacific Railway so as to provide that their rates shall be subject to the Governor in Council ?


The MINISTER OF RAILWAYS AND CANALS.: My own impression is-I do not wish to be understood as speaking positively-that the Canadian Pacific Telegraph Company is a separate and distinct corporation from the railway company. If that is so, we are not dealing with it here.


[Stage Direction]
Amendment agreed to.
On section 193-telegraphs and telephones,
The MINISTER OF RAILWAYS AND CANALS.: I have endeavoured to meet the wishes of that portion of the House who sympathize to some extent with the motion made by the hon. member for East York (Mr. Maclean). I move the following as section 193 :
Whenever any municipality or corporation has the power to construct, operate and maintain a telephonic system in any district, and is desirous of obtaining telephonic connection or communication with or within any station or premises of the company in such district and cannot agree with the company with respect thereto, such municipality or corporation may apply to the board for leave therefor, and the board may order the company to provide for such connection or communication upon such terms as. to compensation as the board may deem just and expedient, and may order and direct how, when, where and by whom and upon what terms and conditions such telephonic connection or communication shall be constructed, operated and maintained.


Thomas Simpson Sproule: That is good, as far as it goes; but I do not think it will cover all the requirements of the case. It applies only to municipalities or corporations. This can only include municipalities and such companies as have received corporate rights by Acts of parliament. A large number of our telephone lines are not owned either by municipalities or incorporated companies, but are lines projected by individuals or private corporations that give the use of them to the public generally. I apprehend they could not avail themselves of the right of connection with the railway stations under this provision. To that extent. I think the clause will fail to meet the requirements of the situation.
The MINISTER OF R A" v-s XD CANALS. I think that any clause which provides for making arrangements with any body of men not incorporated would fail. These concerns must have some sort of organization, so that the railway company, in dealing with them may know who they are dealing with, and may feel that they can make the concern fulfil its obligations. I would be sorry to impose such conditions

upon the railway companies as regards every association of fifteen or twenty individuals who might wish to have telephonic access to the railway station.


William Findlay Maclean: I am very glad the hon. minister has given us this amendment. It shows that discussion is profitable at times. My intention was simply to have a discussion of the question, to have no trouble about it, and to get something that would be in the public interest. I give the hon. minister credit for having met our views to a considerable extent, and I am very much obliged to him for this amendment. Since the question came up the other day, I have received a number of communications, and I would like to read extracts from two or three of them. A man in Ontario writing to me, says :
I have lust read your remarks in the House as to the telephone companies and Sir Wilfrid's noting your 1 insulting language,' and was glad that those who are not afraid to speak out were not all dead yet. You can thank Sir Wilfrid's words ' vested rights ' for this letter. My poor judgment is that nearly half the vested rights are vested wrongs.
Another farmer writes from Harriets-ville :
We are watching with much interest the developments of the telephone legislation at the capital. We have here in Dorchester about twenty-five miles of line and have Canadian Pacific Railway connections at both Harrietsville and Putman stations. Now, we would indeed feel it a hardship if we were to lose this connection, as we have no Bell line within some distance of us.
I would also read a short extract from the Orono ' News,' a letter received by Mr. William Armstrong from W. T. Smale, of Eskbridge, Kansas, a former Orono boy. Mr. Mr. Smale speaks of the operations of the rural mail delivery, and then goes on :
We also have the independent telephone system here and every house in our township is connected with Eskridge, Burlingham, Harveyville, Topeka and anywhere we want to talk, and best of all it is ours. We own the lines; the farmers do I mean, and all it costs us is twenty cents a month to keep up central. The telephone companies out here thought they owned the earth, but we thought we 'would let them see we owned some of it, too. So twenty-two of us fellows here formed a company of ourselves, built into Harveyville, bought our own switch-board and made Harveyville central. They laughed at us, would not have anything to do with us, made us pay to talk over their lines, but now the laugh is the other way. We have six lines running into Harveyville using our central, so the companies are glad to give us free exchange over their lines for the privilege of using ours, and that is what the farmers of Clare and Darlington townships ought to do, organize themselves into a .club, not a company-own their own lines, and make Orono central.
| Now, I believe that under this legislation the farmers of the country can form themselves into little clubs or companies, who 'will be in a position to get telephone con-


Hon. Mr. BBAIR.: nection with the railway stations. I have had intimations from all over the province that under a clause like the one the minister has now put in the Bill, the farmers will build telephone lines of their own, and Will extend a telephone service ail over the country independent of the Bell Company. There is just this difficulty in the way, that until this Bill goes into force they will not be recognized, and I would like to have the minister declare in this Bill that contracts like that one made between the railway companies and the Bell Telephone Company are against public policy and ought to he so declared by Act of parliament. I am hot going to press that at the present time, I am satisfied to accept this amendment now. I hope it will pass, and I hope that the minister will be given at least this much credit, which he deserves, that after full discussion of the question he came to the conclusion that there was a grievance in the country that ought to be remedied by legislation.
Mr. SPltOULE. The very instance which the hon. member has cited from that letter he read, shows that this thing can be accomplished and is accomplished, if not in our own country, at least in the adjoining country. But I tell him that these very companies would not come under this Bill, because they are not a municipal corporation, they are not incorporated, they are only clubs of farmers. To give the Minister of Railways and Canals an idea of the 'prevalence of lines in our country. I may tell him that to my knowledge there are several private lines in the county I represent, some of them eight or ten miles long, but not one of these can take advantage of this because they are neither owned by the municipalities nor by a company incorporated by an Act of parliament. I do not see how this trouble could be got over without surrounding the right by special safeguards. But I think it is a great pity, because the great bulk of the private lines 'will be practically shut out, notwithstanding this amendment, which is certainly in the fight direction, andi of which municipalities can avail themselves as well as companies "who are incorporated by Act of parliament.


The MINISTER OF RAILWAYS AND CANALS.: All these people have got to do is to pay $5 or $10 and get a pass from the provincial government. I should imagine that unless these people adopt some method of that kind their telephone arrangements will not last very long.


Thomas Simpson Sproule: But their arrangements have been running, some of them, for fifteen years, and running more successfully to-day than in The past; .so the danger of their lasting- need not he taken into account. They might not be as stable as if they were incorporated. and may be this will compel many of them to be incorporated and take in other lines which are to-day controlled

or owned by private individuals. It is a very common custom in our country for a doctor tO"*buiid lines in different directions from the town or village where he lives, for the convenience of people who call on him as well as for his own convenience, and the public always have the use of these lines. In the county of Grey some of these lines have been in operation for twelve to seventeen years, and they are increasing in number every year; and it is for the purpose of enabling these to take advantage of this Bill that I have drawn the attention of the minister to them.
On section 194,


The MINISTER OF RAILWAYS AND CANALS.: I move : That section 194 be struck out and that the following be substituted in lieu thereof :-
The company shall in constructing the railway make and maintain suitable ditches and drains along each side of, and across and under the railway, to connect with any existing ditches, drains or water courses upon the land through which the railway runs, so as to afford sufficient outlet to drain and carry off the water, and so that the then natural, artificial or existing drainage of the said lands through which the railway runs shall not be obstructed or impeded by the railway.
2. Whenever any lands are injuriously affected by reason of the drainage upon, along, across or under the railway being insufficient to drain and carry off the water from such lands, or whenever any municipality or landowner desires to obtain means of drainage, or the right to lay water pipes or other pipes, temporarily or permanently through, along, upon, across or under the railway or any works or. land of the company, the board may upon the application or complaint of the municipality or landowner, order the company to construct such drainage or lay such pipes, and may require the applicant to submit to the board a plan and profile of the portion of the railway to be affected, or may direct an inspecting engineer, or such other person as it may deem advisable to appoint, to inspect the locality in question, and, if expedient, then hold an inquiry as to the necessity of requirements for such drainage or pipes and to make a full report thereon to the board : the board may upon such report, or in its discretion, order how, where, when, by whom, and upon what terms and conditions, such drainage may he effected, or pipes laid, constructed and maintained, having due regard to all proper interests. 51 V., c. 29, s. 14 Am.
Strike out section 195, and substitute the following :
Whenever, by virtue of any Act of any province through which the railway runs, proceedings may be had or taken by any municipality or landowner for any drainage, or drainage works, upon and across the property of any other landowner in such province, the like proceedings may be had or taken by such municipality or landowner for drainage or drainage works upon and across the railway, and lands of the company, at the option of such municipality or landowner in the place of the proceedings before the board as in the last preceding section provided, and thereupon the drainage laws of the province shall apply to the lands of the company upon or across which such 194
drainage is required, to the same extent as to the lands of any landowner of such province, subject, however, to any previous order or direction of the board made or given with respect to drainage of the same lands, and provided that the company shall have the option of constructing the portion of any drain or drainage work required to be constructed upon, along, under or across its railway or lands, and in the event of the company not exercising such option, and completing such work within a reasonable time without unnecessary delay, such work may be constructed or completed in the same manner as any other portions of such work are provided under the laws of such province to be constructed; provided always that no drainage works shall be constructed or reconstructed upon, along, under or across the railway or lands of the, until the character of such works or the specification or plans thereof shall have been first submitted to and approved by the board. 63 and 64 V., c. 23, s. 2, Am.
2. The proportion of the cost to be borne by the company of the construction or reconstruction or maintenance of any such drainage or drainage works, so required to be constructed, reconstructed or maintained upon, along, under or across the railway or lands of the company, shall be in proportion to the benefit to be received by the company therefor therefrom unless the company shall have neglected to provide and maintain the necessary ditches and drains, as in subsection 1 of the last preceding section provided, for that purpose, in which case such proportion of cost shall be based upon the increase of the cost of such drainage or drainage works.


Mr. COWAN.: This matter was up for discussion the other day, and I am very glad to say that apparently the Minister of Railways and Canals seems anxious to meet the requirements of drainage. There are some things, however, in these sections which he now proposes which I would like to draw attention to. The first section starts out:
The company shall in constructing the railway make and maintain suitable ditches.
I cannot for the life of me see why the words ' in constructing the railway ' should be inserted in that clause at all, because it seems to me that under the decision which I quoted the other day those words would be construed not to apply to roads constructed prior to the passing of this Act. Section 195 referring to subsection 1 of section 194 might I think be construed as applying only to railways constructed after the passing of this Act. It seems to me that 'the minister should strike out the words ' in constructing the railway ' and simply let the section read :
The company shall make and maintain suitable ditches and drains along each side of, and across and under the railway.
I strike out the word ' its ' before railway and substitute the word ' the.'
To connect with any existing ditches, drains or water courses upon the land through which the railway runs.
That would refer generally to a railway and not to the railway previously mentioned. Instead of the word ' runs ' I think it would



61S0
be very much better to use the words ' has been constructed.' It would make it then absolutely clear that this section applies to railways now in existence as well as to those hereafter to be constructed.
So as to afford sufficient outlet to drain.
I suggest that the word ' efficiently ' should be inserted before the word ' drain.'
-to efficiently drain and carry off the water

Tiie amendment reads * the then natural or artificial.' As I pointed out, when these railways were constructed there was no artificial drainage in the northern portion of the county of Essex through which these large trunk lines pass. But under this amendment it says :
The then natural or artificial.
There was no artificial drainage then, and I think the word ' then ' should be striken out so as to read:
And the natural or artificial drainage of the said land through which the railway runs shall not be obstructed or impeded by the railway.
I do not think there is any doubt that the intention of the Minister of Railways and Canals is that this shall apply to railways which are in existence as well as to those to be constructed hereafter. The changes In the direction which I suggested would put that beyond any question of doubt.


Mr. BARKER.: As I understand these clauses 194 and 195 they deal with two phases of railway construction. Clause 194 deals with the duty of the railway company in constructing its railway, and I suppose the language which the minister here uses is proper. They construct their drains to the then requirements, but the subsection of that section seems to provide for subsequent events, it provides for what may be necessary at any time after the railway has been constructed.


Mahlon K. Cowan: The word ' the ' is used in the second line of subsection 2, and it refers to the railway spoken of in subsection 1.


The MINISTER OF RAILWAYS AND CANALS.: Not at all. The hon. member has stated correctly my intention with regard to this section, but you must have a little uniformity in framing a section of this kind to cover all the ground, and I think, that after careful examination the hon. gentleman will find, that the idea was to lay down a principle for the guidance of railway construction in the future. I wanted it distinctly called to the attention of railway companies that in constructing their line they should study the situation from the drainage point of view at the very commencement, and that if while they are constructing it is brought to the attention of the hoard that they are failing to discharge their duty in the matter, the board shall have power to compel them to perform


Mahlon K. Cowan: their duty. The fact that we have laid down a general provision does not warrant the inference that in all the subsequent sections we are dealing only with respect to railways that are to be constructed in the future. The language of the following clauses does not justify that interpretation. I must confess that I think my hon. friend 1 Mr. Cowan) is a little hypercritical about it. Let me deal with one or two suggestions he makes as to the phraseology cf the first section. The hon. gentleman would have us put in the word ' efficiently ' before the word ' drain.' They are bound to afford a sufficient outlet to carry off the water. I do not think you can add anything to make the meaning and intent any clearer.


Mahlon K. Cowan: You might drain off the water in a week, which is long enough to destroy a crop.


The MINISTER OF RAILWAYS AND CANALS.: I do not think the outlet would be held to be sufficient if it would not carry off the water in a week. It should be sufficient to carry off the water in a reasonable time. The conditions might be so exceptional that no company could be supposed to anticipate such a demand on the outlet ; but if the outlet had been made sufficiently large to carry off the water under the ordinary conditions which prevail, without allowing the water to lie long enough to do any damage, it would be sufficient. My hon. friend must understand that these provisions are made with respect to conditions which exist not only in the county of Essex, but all over the country, wherever drainage is required. Where there is natural drainage going on when the railway is constructed, it is the business of the railway company to provide a sufficient outlet for that drainage. It is not necessary that they should make provision for artificial drainage, if there is not any or if the conditions are such as would not require it in other places, When we pass from the main clause of the section, we come to deal, not with the laying down of a general principle, but with the duties which attach to the railway company in the condition of things as they are to-day. These refer not simply to a railway which may be built after the passing of this Act, but to any railway wherever the trouble occurs and the remedy is being sought. But when we come to the next section, 195, we are drawing into the operations of this Act the provisions of the provincial law and applying them to the case that exists, so as to enable the landowner or the corporation that has drainage to proceed according to the practice laid down under that law and follow the remedy out to its conclusion. My hon. friend, I think, has indicated his satisfaction with that portion of the Bill.


Mahlon K. Cowan: I do not think we need have very much quarrel about section 194 ;

but section 195 is the important section, and if tbe bon. minister would change the word ' runs,' in the second line, so as to make it beyond all doubt apply to railways heretofore constructed as well as hereafter, I would have no fault to find with subsection 1 of that section.


The MINISTER OF RAILWAYS AND CANALS.: Does my hon. friend say that these words, ' through which the railway runs,' would imply that the section had reference only to a railway to be run after the passage of this Act ?


Mahlon K. Cowan: All I can say is the case I read the other day in volume 1 of the Ontario Reports of 1901, in which the Divisional Court of this province held that the words 1 is carried ' referred only to railroads constructed after the passing of the Act and not to railways constructed before; and when the hon. minister asks me if I think these words refer only to a railway to be constructed after the passing of this Act, I think it is a pretty close decision, stretching the words of the statute possibly further than the average legal mind would stretch them, but it has been done, and I think the words 'is carried' are just as strong as the words ' is run.'


The MINISTER OF RAILWAYS AND CANALS.: I would not agree with my hon. friend in that. I think there is the clearest possible distinction between the case he refers to and the language of this clause. I am not going to venture to suggest that the decision is anything but right ; it is not necessary ; but if we were to make this section read ' is run,' then you would bring it within the judgment, at all events of that judge, and he would be bound, if he is to adhere to his original decision, to hold that the words had reference to a future act and not to conditions which exist to-day. But the distinction is very clear to my mind. All a judge has to ascertain and determine is : is there any railway running through that district to-day, at the moment when this remedy is applied ? When he finds that a railway is running, it is a matter of indifference to him when that railway was put through. I am quite sure that my hon. friend is wrong in that, and I think he will himself agree that there is no room for question when he thinks a little more about it. This clause is acceptable to my hon. friend with that one doubt in his mind. That being removed, the section, I take it, will meet with the approval of the committee.


Mahlon K. Cowan: I would like to draw the minister's attention to this point. The clause provides that no drainage works shall be constructed until the character of such works, or the specification or plans thereof, shall have been first submitted to and approved by the board. Under section 16 of the Ditches and Watercourses Act of Ontario the engineer must make his report 194*
within thirty days, and he cannot make his award without the approval of the chief engineer of the railway commission ; or, if he does make the award, and approval is withheld by the commissioners, there is no machinery in the provincial legislation providing for the expense incurred, and the provincial statute will have to be amended to meet that case.


The MINISTER OF RAILWAYS AND CANALS.: You will not have to amend any provincial Act. You will have to work out ] the matter in addition to what the provin-' cial Act requires. As respects Dominion railways, you cannot dig under them until the character of the work you have to perform has been approved by the board. There must be some superior tribunal to pass upon it.


Mahlon K. Cowan: I understand that the hon. minister has made up his mind on that, so I accept that.


The MINISTER OF RAILWAYS AND CANALS.: That does not require any amendment.


Mahlon K. Cowan: Under the Ontario Act, if the engineer does not make his report within the thirty days the award is illegal. Furthermore, the moment the report of the engineer is adopted by the council, under our Drainage Act, he cannot change it, so that the Ontario statutes must be amended, which can be easily done.


The MINISTER OF RAILWAYS AND CANALS.: I do not see any difficulty. When they have decided upon their scheme and have their plans, they need not wait until the work is under progress, but can send them into the board right at the start.


Mahlon K. Cowan: Suppose the Railway Commission has approved plans submitted by the engineer, and which have been adopted by the council, the engineer cannot change his report or plan after their adoption. That has been definitely decided by the decisions of the courts.


Thomas Simpson Sproule: Might I ask the hon. minister in what position would a municipality be which had made a drain that was afterwards crossed by a railway and which required to dredge out that drain ? Could the railway company be required to deepen that drain ?


The MINISTER OF RAILWAYS AND CANALS.: That is probably the chief object for passing this clause.


Thomas Simpson Sproule: It does not seem to me that it would apply to such a case. I know of instances where the railway companies refused to allow the municipalities to deepen the drain.


The MINISTER OF RAILWAYS AND CANALS.: If the drainage originally provided is insufficient, this Bill enables an ap-

plication to be made to the Railway Commission, which would have the power to order the additional drainage. It would apply to every possible, conceivable condition and circumstance.


Mr. CLANCY.: I have in my mind several cases of large drains which were constructed by the use of dredges and which must be kept In order and repaired by the same means. In many instances the railway companies have, since the construction of a drain, driven piles into them. If there be any such thing as right of way, the drains had that right in thq first instance. When the municipalitiles want toi repaifr those drains by dredges, they come up against the railway piles, and are prevented from doing so. What provision is there in the Bill to protect the rights of the municipalities ?


The MINISTER OF RAILWAYS AND CANALS.: Application will have to be made to the Railway Commission, and that board will have jurisdiction to give an order compelling the railway companies to allow the drain to be repaired.


James Clancy: At whose expense ?
The Minister of railways and
CANALS. That will be in the discretion of the board.


James Clancy: There ought to be some general principle laid down for the guidance of the board.


The MINISTER OF RAILWAYS AND CANALS.: You have to leave these matters to the Railway Board, as we have hitherto left them to the Railway Committee of the Privy Council, and I do not think that any fault has been found with the decisions of the Railway Committee. That committee has always found justification for making the railway company pay its proportion of the cost, if not the whole.


Mahlon K. Cowan: Does the hon. minister know of any case in which the proportion can be fixed ?


The MINISTER OF RAILWAYS AND CANALS.: We cannot arbitrarily fix a proportion. You have to leave the discretion somewhere, as you do in a court of equity. If you have not confidence in your tribunal, the whole system falls through.


James Clancy: Would it not be reasonable to lay down some general rules or principle which would govern that tribunal ? Is it possible for the hon. gentleman to make such a provision that where the enlargement of the drain is made necessary by the railway company, the railway should bear the whole cost ? That is a fair proposition.


Mr. STEPHENS.: I know of one case where a railway company charged a dredging company, to take their dredge through


Andrew George Blair: under the railway and bring it back, $1,500, which was almost as much as the drain cost. That is a couple of years ago.


Mr. ROBINSON.: If a farmer finds his land flooded, will he be able to start proceedings under this section to secure drainage ? If so, how will he do it ? What the farmers require is a simple method of draining their lands beneath the railways.


The MINISTER OF RAILWAYS AND CANALS.: I do not know what the machinery is. All I can say is that lit is the same as that provided in the provincial Act. The hon. gentleman (Mr. Robinson) is better informed as to the Ontario law than I am.


Thomas Simpson Sproule: You cannot get a drain through under that law.


The MINISTER OF RAILWAYS AND CANALS.: I say that this section provides that the machinery shall be that provided by the provincial law.


Thomas Simpson Sproule: Perhaps the hon. minister did not understand me. I say that under the provincial law, you cannot get a drain across a railway, if the railway does not agree to your doing so.


The MINISTER OF RAILWAYS AND CANALS.: The unfortunate part of my hon. friend's (Mr. Sproule's) condition is that, not having experience in law, he does not seem to know that with these companies you cannot now proceed under the provincial statute. But we provide here that the provincial law shall apply in these cases. What more can we do ?


Thomas Simpson Sproule: But the provincial law is practically inoperative and of no value. If this law does not provide machinery for enforcing it, I do not see howl the farmers will be better off with respect to drainage than they are now.


Samuel Barker: As I understand it, this will make the Dominion railways subject to the control of the province as regards this matter. The Dominion railways in Ontario will be as much subject to the drainage laws of Ontario as a private owner would be with regard to his own lands.


Mahlon K. Cowan: Exactly.


James Clancy: Is the board of railway commissioners supposed to follow the law strictly, or have they discretionary power in that administration of it-that is, to make the law where there does not seem to be any special provision ? And would that be the case in such matters as that I referred to a moment ago ?


The MINISTER OF RAILWAYS AND CANALS.: Many of the provisions of this law are imperative, while, in other things the form is permissive, and with respect to these the board has a good deal of discretion. It would be difficult to establish a good working system in every way. We

are attempting to provide a general administrative organization which shall have, from a railway point of view, control all over this country. One thing with another it is sought to enable the board to exercise its discretion with respect to the conditions which arise in different localities.


James Clancy: But take such cases as I have spoken of where a large drain has been constructed before the advent of the railway, and the railway take possession of it. I think that case is sufficiently aggravated and of sufficient magnitude to be worthy of consideration by the hon. gentleman before coming to a final conclusion.


The MINISTER OF RAILWAYS AND CANALS.: I have a good deal of difficulty in undertaking to give in words direction for guidance-not control-as to the different principles upon which the board is to act in these matters. If we attempted to provide for every case, I feel that we would be more likely to cause harm than to do good.
I am quite sure that if the board takes up a question of this kind, it will be far better able fo lay down principles for itself which will be equitable and just than we who have no knowledge of the circumstances and conditions. It does not follow that because this parliament establishes this board it loses legislative control. We shall be able to judge whether or not the machine lias been made fairly workable and where it has failed, if the difficulty is remediable, we can apply the remedy. While the perfect condition is the one to be desired, it is not to be looked for ; and, in seeking that perfection and trying to provide for every possible contingency, you would make stumbling blocks for your commission. That would be my fear.


James Clancy: 
The MINISTER OF RAILWAYS AND CANALS.: I do not know how it would be possible to frame any clause that would cover the hon. gentleman's case any better than this covers it:
The coat of the drainage or drainage work shall be in proportion to the benefit to he received by the company therefrom, unless the company shall have neglected to provide and maintain the necessary ditches and drains as in subsection 1 of the last preceding section is provided.
Now, it is a fair question as to whether that drainage which has been provided by the company is sufficient. The hon. gentleman is proposing to clear out the drain.


James Clancy: I am proposing to clear out a drain of which the company bore no share in constructing, and no claim is made upon them; and it would have to be admitted the railway company did not receive any benefit. It was a drain they took possession of, and they bore no part of the cost of its construction. Therefore, it does seem to me a piece of confiscation. You could not argue that they derived any benefit from it. Your whole case is that they prevented you from enjoying the benefits they had before the railway was constructed. So it does not come within the provisions of the section the hon. gentleman has read.


Mahlon K. Cowan: When this matter was up for discussion before, I moved an amendment to sections 194 and 195, which I think may possibly satisfy the member for Both-weil. and meet the case. I proposed to add it as a new section ;
Whenever any drainage work or proposed drainage works passes across the lands of a railway company in the construction or repair of which work a dredge or dredges or other machinery is used, the railway company shall remove any obstructions to the free passage of said dredge or dredges across their property, and which has been erected or placed thereon by the said company, charging only the actual cost for removal of same, except in cases of a natural watercourse, when the entire cost of removal of said obstructions to the free passage of the dredge or dredges shall be borne by the company.
The effect of that amendment is that in every natural watercourse the entire cost is borne by the railway company* but in artificial drains, it is not.


James Clancy: The hon. gentleman's provision is where drains cross the lands of a railway company. The case is simply reversed. In the one case the drain was constructed. There is no reason that you should make a distinction between a drain constructed as a watercourse and a natural watercourse. The hon. gentleman is placing a limit that should not exist. He knows that there are many drains that are not constructed through natural watercourses.

61S3


Mahlon K. Cowan: There is no drain in the county of Essex which has been constructed or repaired by a dredge, that is not a natural watercourse.


James Clancy: The hon. gentleman is speaking for his own county. I am speaking of things I am familiar with in other localities.


Mahlon K. Cowan: In the county of Essex all the drains are through natural watercourses where they cross the track.


James Clancy: There are drains in the county of Kent that are not natural watercourses at all, there are some even in the county of Essex. Take the lands where an embankment has been made in the county of Essex, through the plains where there were no watercourses in many cases.


Mahlon K. Cowan: Not under railways.


James Clancy: But I am showing that a railway might cross the drain. So it would be making an unfair limit to adopt the hon. gentleman's amendment and confine it to watercourses. If the hon. gentleman can get the Minister of Railways and Canals to accept his amendment, it ought to cover the case.


Mr. MACLAREN (Huntingdon).: The question raised by the hon. member for Bothwell (Mr. Clancy) has some similarity to a case in the county of Huntingdon. It is sometimes difficult to grasp these matters when we talk about them in the abstract; I want to put an actual case before the Minister of Railways and Canals, and to ask what should be done under the circumstances. We have in the county of Huntingdon what is called the Hall creek, which empties into the Chateauguay river, and runs altogether a distance of seven or eight miles. It crosses the New York Central Railw'ay, and where it crosses, the main branch was some nine feet wide. Last year we made a new procSs-verbal, as we call it, to drain that land. Some of the land had been cleared up, and we found we had to change the main channel of the creek. We removed it west a mile or a mile and a half. There had been a branch of the creek across the railway at that particular place, which was only four feet wide, and we made it nine feet wide and made it a main discharge, making it the same width as the original discharge, nine feet, and making at what was the original discharge a branch four feet wide. The New York Central had a wooden culvert four feet wide, and we required a culvert nine feet wide. That culvert has not yet been built and we want them to build it. They intend to put in a concrete culvert nine feet wide, and I understand that under one of the sections of the hon. gentleman's Bill the cost of these culverts should be borne in proportion to the benefits received by the various properties drained and the railway. Under these circumstances what proportion does the min-


James Clancy: ister think should be borne by the railway, and what proportion by the farmers ? This is a concrete case, and I would like to know how we stand. I may say our contention is that the railway should put in that new culvert, and they intended to do it as the law stands now. But if this new Act is passed, I am afraid the New York Central will come to the municipality of which I am secretary-treasurer, and want us to pay part of the price of that new culvert, which I do not think we have any right to pay for. There is were we stand, and 1 want the minister to answer my question.


The MINISTER OF RAILWAYS AND CANALS.: My mind is not working actively on abstract questions of damages.


William Scott Maclaren: This is not a question of damages.


The MINISTER OF RAILWAYS AND CANALS.: I would not like to answer the hon. gentleman's question off-hand. I think if I did he would not think very much of the opinion I gave. The facts would have to be inquired into.


William Scott Maclaren: If I understand the hon. Minister of Railways and Canals he is bringing in a railway Bill and he is undertaking to frame a particular section to deal with these matters. ' I say it is a concrete question, not an abstract question. I would like to know what the hon. minister had in his mind when he framed the section and how he would apply it to this case. My contention is that when a railway runs through a country and builds up a bank which interferes with the drainage it is bound to give openings through or under that railway which would give the farmers as good drainage as they would have had if the railway had not been built. That particular railway of which I spoke crossed a man's farm. This man had a farm which was forty rods wide. The right of way cost the company at the rate of $75 an* acre, or about $50 for crossing the farm. Does anybody mean to tell me that that is any compensation to this farmer for the damage that has been done to him by the building of that railway ? My contention is that if a railway company obstruct the drainage of the country and if culverts and openings are required for the farmers such drainage should be at the expense of the railway company and the farmers should not be required to pay any proportion of it. That is the ground I take, because, if you say, as in the section, that the railway company has to pay proportionate to the benefit received, what benefit does the railway receive by having a culvert pass under it ? The difficulty we have in getting drainage is that the railway companies say that it is injurious, that they do not consider it any benefit, but that they consider it a nuisance and they fight us in every way possible to prevent us getting drainage

across their lands to the natural outlets which would have been clear of any obstacle had the railway not been constructed.


George Stephens: The railway companies contend that they receive no benefit from drainage and that it will be a damage to them instead of a benefit. I know of a place where a man carried his drains down through another farm to get to the outlet. He had to build the drain for a third of a mile to get to the outlet, where 150 feet would have taken him to the outlet if the railway had not been there. He had to go to this extra expense on account of the railway. He could have put the tile under the railway and the water would have run through that without any great expense if the railway had thought fit to consent to allow him to do so.


Mr. EENNOX.: I have not been able to see the proposed amendments until just now and I find by looking at these amendments that they do not meet the difficulties at all, at least, some of the difficulties that were presented the other day. The Ontario Ditches and Watercourses Act as applied to railways, provides that all the cost of putting necessary drainage under railway lands shall be borne by the parties making the application and nothing paid by the company. That is expressly provided in the Railway Ditches and Watercourses Act of Ontario. It was pointed out very forcibly by the hon. gentleman who moved the amendment the other day and others who followed him that it was only fair that the landowner should be put in the position that lie would have been in if the railway had not been carried across his lands. I find that in subsection 2 of section 195, as it is now proposed by the hon. Minister of Railways and Canals, the following words :
The proportion of the cost to be borne by the company of the construction or reconstruction or maintenance of any such drainage or drainage works, so required to be constructed, reconstructed or maintained upon, along, under or across the railway or lands of the company shall be in proportion to the benefit to be received by the company therefrom unless the company shall have neglected to provide and maintain the necessary ditches and drains, as in subsection one of the last preceding section provided.
As T understand that section it amounts to this, that we are proceeding upon the basis that each party lias only to pay in proportion to the benefit that will be derived. That is the principle that is laid down for the guidance of the board and that is tlie rule that is to be adopted. We are not dealing with a case of where two parties are seeking to have an apportionment of benefit decided between them. We are dealing with a case where the landowner is suffering under the grievance created solely by the railway company. The railway company want to do nothing whatever. They want to stand as they are. The landowner is endeavouring to get rid of this grievance. It will be a benefit to him to get rid of this grievance, but it will only be a benefit which will in the end restore him to the condition in which he would have been if there had been no railway built at all. When you speak of the benefit he would derive it is merely that his rights are being restored to him under the Act for this he should not have to pay. He should have his rights restored under this Act without condition and without expense and until that is done justice is not done to the landowner. The true principle was enunciated (he other day by the hon. member for South Essex (Mr. Cowan) and I wonder he is not ready to maintain it today, or has not been so far, that we should replace the landowner in as good a position as he was in before the railway was constructed. That is all we are asking, but if you are to measure it by the benefit derived, as I ventured to point out the other day, the logical answer of the railway company is : We are not getting any benefit, we are in a better position if no drainage is carried underneath our railway, every cutting under the railway weakens the roadbed. Even if it can be done for nothing, we are rather injured than benefited. But, the answer of the farmer is : I want to get my lands restored to the condition of usefulness they were in before. If you provide in the section that it will be in proportion to the benefit derived, then no court having regard to the ordinary meaning of language can do anything else than exonerate the railway completely from payment, because the wording is ' in proportion to the benefit ' and the railway company can certainly say that they are deriving no benefit from the work. Let me direct the hon. minister's attention to the position of the matter. By the wording of this section a sufficient remedy is not provided. Means are probably provided for getting drainage under the railway lands, but certainly at the expense of the person -who makes the application because not one dollar of it will be paid by the railway company. When you invoke the provincial Act in the province of Ontario, and I think the hon. member for Huntingdon (Mr. Maclaren) explained the other day that the law is similar in the province of Quebec, all the expenses are paid by the municipalities to the railway company. The minister has evidently taken a considerable amount of pains in recasting this legislation, and while I call attention to this point I want to say that in the main I believe the provisions are satisfactory. But in this particular I submit with due respect that they do not improve the conditions as they existed before.


The MINISTER OF RAILWAYS AND CANALS.: I am prepared to say that a railway company could get no benefit, but if they got any benefit that benefit should be 1 deducted from any sum which they would

be required to pay, or rather, they would have to make allowance for that benefit when the question of ccsts came to be fixed. You must start out with the fact that the duty of the railway company is at the time it constructs its line to have provided all proper drainage. Having done that, and if ditches are required to be enlarged by reason of changed conditions since the railway was constructed, I do net think they should be asked to assume all the expense.


William Scott Maclaren: Why not?


The MINISTER OF RAILWAYS AND CANALS.: Why should not those interested in the drainage bear their share of the burdens which are imposed by the altered conditions.


William Scott Maclaren: There would be no increased cost if the railway was not there.


The MINISTER OF RAILWAYS AND CANALS.: You would have to enlarge your ditches:


William Scott Maclaren: The enlarging of the ditches would cost $1 or ?f>. What I refer to is a culvert which would cost $500 and which would not be necessary if the railway was not there.


Mahlon K. Cowan: In the original Bill introduced by me it was provided that the proportion of the cost of the drain crossing a railway, to be borne by the railway company, should be based upon the increased cost of such work caused by the construction and operation of that railway. The reason why the railway company should bear that proportion is, that when the railway company went through these lands they knew that in order that these lands might be properly tilled they must be properly drained. They also knew that the fall of the land lay across their right of way, and in order to properly till and drain the land there must be openings under the railway sufficient to carry oft' the water. Therefore, in the construction of the road-bed, if they failed to leave these culverts or openings they should pay the increased cost by reason of their failure to do so. When a railway goes through an absolutely new section of the country there are no farm crossings required, but still the law provides that the railway company must give them farm crossings, because when they clear the land it will be necessary for the farmer to pass from one side to the other. The Act says that these farm crossings shall be made at the expense of the railway company. If it is necessary in the case of farm crossings, much more so is it necessary where it is absolutely impossible to till the land. Unless openings or culverts pass under the railway as the natural lay of the land requires for the necessary drainage thereof, as in the state of Illinois, pro-


Andrew George Blair: vision should be made by the railway ct m-pany. ' Sufficient for the necessary drainage thereof.'


Mr. WADE.: When lands are being expropriated for a railway company it is necessary to file plans and profiles of the track showing the embankments across the line and so on. Then the appraisers go upon tlie land and they estimate the value of that land and also the damage occasioned to the owner by severance, and in estimating that they say that the adjoining land is uncultivated, but if at any future time it may be cultivated then the railway company must give farm crossings. But a different principle prevails with regard to this drainage. The appraisers say that so far as the drainage is concerned there is no further burden laid upon the railway in that regard. Therefore the two eases are not parallel. In one case they have it distinctly before them that the railway company can be compelled to construct crossings, but they cannot be compelled in some cases to construct an opening across the track for drainage. Suppose the railway company has constructed a railway and has put in drains sufficient for carrying out the natural flow of the water if a system of drainage is afterwards constructed by the farmers in the locality which increases the flow of water at a certain point, that is done to enhance the value of their property and it seems to me that should be taken into consideration.


Mahlon K. Cowan: Does it not enhance the value of the property of the railway Company by giving it increased freight ?


Fletcher Bath Wade: That is a very pertinent remark, and if by reason of that work the company obtains more revenue, then that should be taken into consideration also.


James Clancy: I would like to call the attention of the hon. minister to this section. The persons claiming drainage would be infinitely better without that provision, because unless they are prepared to show that the railway company benefits from the drainage works, it would not be required to bear any share of the cost. I would ask the hon. gentleman, if he were sitting as a judge, and a case came before him under this section, and the landowners could not show that the railway company derived a benefit from the maintenance of a drain already constructed before they took possession of it, would he not decide that the landowners would have to pay the whole cost of cutting through the railway, and the railway company none ?


The MINISTER OF RAILWAYS AND CANALS.: That would depend on whether or not they had constructed a sufficient drain.


James Clancy: Suppose the railway company had no mandate to construct drains

at all, but the railway crossed a large drain. It would be simply impossible to show that the railway company derived any benefit from it or was the least concerned In it, beyond having prevented the landowner getting through. According to the provisions of this section, before the railway company are called upon to bear any share of the cost, it must be shown that they have derived some benefit from the work. The landowners would be infinitely better without such a provision, leaving the matter an open question. I do not know any more serious* phase of the bon. gentleman's legislation than this. 1 am sure that every lawyer will see that it is a most dangerous thing. It puts us out of court entirely.


George Stephens: When the railway company permits a drain to cross the railway, the municipality or the landowner lias to pay the cost, and this includes the cost of engineers and other expenses, which are sometimes more than the cost of the culvert itself. I know of one culvert in the hon. gentleman's own riding (Botliwell) which cost the township of Chatham $5,000 under the management of the railway company, whereas if the municipality had put it in, I do not think it would have cost more than $1,000 ; so that the railway company injured the municipality to the extent of $4,000, and kept the water back and drowned out the crops for a number of years besides.


Mahlon K. Cowan: Will the minister kindly tell us just what portion of the cost he proposes that the railway company shall bear, under subsection 2 of section 195 ?


The MINISTER OF RAILWAYS AND CANALS.: I propose that if they are not in default they shall pay no portion unless they get the benefit.


Mahlon K. Cowan: The clause goes further than that. It refers to railways already constructed.


The MINISTER OF RAILWAYS AND CANALS.: No, to all railways. Many of us are disposed to think that we can fall back on the railway companies with perfect reason and propriety to bear the cost ; but I think it is at least reasonable that we should consider that all railways are not a source of injury and destruction to the countries through which they pass.


James Clancy: The bon. gentleman surely will not make an argument of that kind. No one has said so.	-


The MINISTER OF RAILWAYS AND CANALS.: I think some little recognition should be given to the fact that railways are very necessary and useful institutions, and in a great majority of cases very much enhance the value of the property though which they pass, often making valuable land
which before was nothing but a wilderness. We have heard a gcod deal about the superiority of the Ontario law, and my bon. friend has availed himself of the provisions of that law. If I understand the provisions of the Ontario Act as they relate to ordinary landowners, and their rights in regard to draining, this principle obtains, that where the drain benefits the land, the landowner must pay in proportion to the benefit he derives towards the cost. of the construction of the drain. I believe the railway companies pay nothing ; they are not asked to make any contribution at all.


James Clancy: I can tell the hon. gentleman that in certain localities they do not pay a farthing.


The MINISTER OF RAILWAYS AND CANALS.: That is what I am stating. Under the Ontario law, when drains are put through under these drainage commissions, the railway company makes no contribution whatever. We are rather improving upon the Ontario legislation, which is recognized by our hon. friends opposite as being very superior and worthy of being followed.


James Clancy: I want to say that it is enough to exhaust the patience of this committee to listen to the reasons which the hon. gentleman has given. If the hon. gentleman were the advocate of the railways of thiis country, he could not take a different position from what he has taken just now. It is the most extraordinary thing you could expect from a minister of the Crown and a gentleman of his large experience as a parliamentarian and a lawyer, to say that a man through whose land the railway runs should suffer all .these penalties by reason of that fact. No one has contended in this committee that railway companies should not have the right to expropriate, and the hon. gentleman must be driven to the last ditch when he makes such a plea in favour of this legislation. I tell the hon. gentleman that with his eyes open he is introducing a manifest injustice into our railway legislation by the clause he asks us to pass. He is taking even from the board of commissioners the right to do justice to the farmers. He affects to believe that the railway companies contribute to the drains, but he must know that they do not contribute a farthing. The only drains, for the construction of which they have paid, are those which cross their own lands or which are made in order to provide outlets for drains upon their own lands. But in cases where drains have been built by municipalities or private landowners and are obstructed by railway companies, the hon. gentleman says that unless you can show that the particular railway company interested is benefited, the farmers must pay the -whole cost of repairing such drains. I know of no more deliberate piece of robbery than is involved in the section the hon. gentleman has in his Bill.


Haughton Lennox: I must admit that when the amendments were read this afternoon, I dad not follow them very closely, because I knew that the hou. member for Essex was giving special attention to the matter, but I am perfectly amazed, when I come to read those amendments, which, by the way, it was understood we were to have had copies of in advance. I am astonished that the hon. minister could so far overlook the relative rights of the parties as to have submitted the proposition which we find in the concluding words of section 395, subsection 2. Instead of giving us some measure of relief, he is putting the farmers and the landowners adjoining railways in an infinitely worse position than if he had done nothing. The other day I endeavoured to have these matters settled by the local tribunals, and in that view I ventured to point out that it would be well to invoke provincial legislation. But I also pointed out that so far as the province of Ontario was concerned, the legislation of that province would lead to this result, that the railways probably would escape all liability.


The MINISTER OF RAILWAYS AND CANALS.: The hon. gentleman seems to think that this subsection makes their position a great deal worse than before. Let me say that if the hon. member for Essex is willing to have subsection 2 struck out from section 195, I am willing to drop it altogether.


Mahlon K. Cowan: Some hon. gentlemen on the other side, notably the hon. member for Simcoe, have seen fit to refer to me once or twice as sitting silent while some iniquitous legislation was being passed, and have suggested that I was not pursuing the course to-day that I did on a former occasion. Let me say to the hon. member for Simcoe that I was discussing clause 195.


Haughton Lennox: I rise to a point of order.
I merely resumed my seat in order to allow the hon. Minister of Railways to interrupt me by some remarks which he desired to make, and I do not propose to give up my place to the hon. gentleman (Mr. Cowan). I should be very glad to accept any suggestion that will facilitate the progress of this business, and I hope that the hon. member for Essex does not consider that it is from any desire to be lacking in courtesy that I wish to proceed with my observations.


Mahlon K. Cowan: If the hon. member (Mr. Lennox) will permit me-I am sure of that in his case. But I wish to explain that I was discussing section 195. I have an amendment to propose in substitution of that subsection 2, for that subsection does not suit me.


Haughton Lennox: Under these circumstances I think the proper course for me will be to curtail my remarks, for I may entirely agree with the amendment to be proposed. I am not opposing this nor are any Mr. CLANCY.
of us opposing it, with a view to political effect. We are all on the same line, though we may not view it in the same way. We want to secure fair play for the railway companies, but we want also fair play for the people. I represent a rural constituency, and my sympathies are naturally with the people in rural localities. But I have a special reason for the position I take. The first railway line projected in Canada, barring a short line in Quebec, runs through my riding. It was built in 1851, and the ponds caused by the embankments of that railway are there undrained to this day. So, I have reason to know the sentiment of the people on this question. If we adopt the local law of Ontario without any qualification, we get into this condition. We have the Ordinary Ditches and Watercourses Act, and we have also the Railway Ditches and Watercourses Act, which is to be x-ead as part of the other. Now, after provisions for the meeting of the engineers, the estimate of the cost and everything in connection with putting a drain under the railway, the law reads :
But the railway company shall not be liable for the cost of any work performed upon lands or under the road-bed of any railway under the provisions of this Act.
It is said by the hon. minister that we from Ontario were proud of our legislation, and boast of it. So we are in some respects. But, if the hon. minister reads the discussion of this point in this House, he will see that I, at all events, contended that we must be careful as regards this provision, as, otherwise, the railway company would escape liability, whereas the very principle enunciated by the hon. member for South Essex (Mr. Cowan) was that all the additional cost occasioned by the presence of the railway should be borne by the railway company, so that the parties might be restored to their original positions. I reserve any further remarks until I have heard the amendment of the hon. member for South Essex.


Mahlon K. Cowan: Subsection 2, of section 195, as it is now proposed, means, if I read it con'ectly, that if a railway, at the time of its construction, neglected to leave the proper openings for culverts to drain the land as it was then, the increased cost of drainage occasioned by its construction over and above what it would have been if it had made these openings, is to be borne by tlie farmers. I shall not extend my re-mai'ks to show again why the railway company ought.to bear the inci'eased cost occasioned by the construction of its roads, but shall simply submit the amendment I have prepared. I propose that the following be substituted for subsection 2, of section 195 :
The proportion of the cost of the drain or drainage works across or upon the railway to be borne by the railway company shall in all cases be based upon the increase of cost of

such works caused by the construction and operation of the railway.
That puts the matter as clearly, I think, as the English language can put it, and it is briefly this that whatever it would cost to take that ditch across the land occupied by the line of the railway, if there were no railway works there, shall be borne by the farmer. For example, if it would cost $5 to take the drain across the land in the absence of any railway works, that $5 shall be paid by the farmer. But if the construction of the road-bed causes the work of crossing the land occupied by that roadbed to be $50, the railway shall bear the $45 and the farmer the $5. That is, the increased cost which the construction of the railway has occasioned in the making of the drain shall be borne by the railway. That is as clear as I can put it, and I hope the House will understand it.


Jabel Robinson: I asked the Minister of Railways a question, and he did not answer to my satisfaction. I desire to propose an amendment in the following language :
That wherever it is found that farm lands are injured by the overflow of water caused by the construction of a railway, the railway commissioners shall have power and shall provide and compel said railway companies to construct drains sufficient to carry off all waters, natural and artificial, at the expense of the railway companies.


Hon. Mr. HAGGART.: Referring to the amendment of the hon. member for South Essex (Mr. Cowan), I would draw the hon. gentleman's attention to one point. Suppose that a railway is constructed through a certain section of the country. The openings allowed for the passage of water are quite sufficient, for all the purposes of the railway at the time of construction. But, five or six years after this the municipal council decides to drain the whole municipal area. It constructs a drain-in some counties these drains are more like canals, being eight or ten miles long-and brings it down to the railway and wants to cross the railway, On what principle of justice should the railway company be called upon to pay the extra cost that is necessary to take that drain across the railway ? I cannot understand that. The work may be a useful and necessary one for the community, but I cannot understand why the railway should be compelled to bear this extra cost. As long as means are provided and instructions given to the Railway Commission that upon any reasonable grounds the drain shall have the right of passage, I think that is sufficient. They should not be compelled by statutory enactment to pay for the increased cost qf the construction of that work.


The MINISTER OF RAILWAYS AND CANALS.: I wish to point out to my hon. friend from Essex that he has not well considered his amendment, for he does not even make provision for the case where a railway company has taken land in the first instance, and has fully settled for it and made compensation. My hon. friend' would make the railway pay irrespective of whether they had made compensation or not.
Amendment (Mr. Cowan) agreed to.
Progress reported.
At six o'clock, committee took recess.
After Recess.
House resumed at eight o'clock.


TORONTO AND HAMILTON RAILWAY COMPANY.
[Stage Direction]
On the order for resuming the adjourned debate on the proposed motion of Mr. Campbell, that Mr. Speaker do now leave the chair for the House to go into committee of the Whole on Bill (No. 147) to incorporate the Toronto and Hamilton Railway Company.
The MINISTER OF RAILWAYS AND CANALS (Hon. A. G. Blair).: Mr. Speaker. The attention of the government has been called to the fact that very strong objections are entertained to further proceeding with this Bill on the ground that the Bill assumes to take legislative control in respect to a local measure out of the hands of the provincial legislature of Ontario. It is maintained that it is open to objection on various grounds, not simply because it is a usurpation by this parliament of a subject that properly belongs to the provincial legislature, but, because the exercise of authority by this parliament over the Bill would be to withdraw an undertaking of this character from the supervision, regulation and control of the province. The government is desirous that the measure should not be proceeded with to-night and I would ask that it stand with the view of hearing from those gentlemen who are here now and who wish to present their objections to the Bill. I think I may say with authority that if it appears from what may be stated to us by these gentlemen that this is not properly a subject for us to legislate upon and that we are in fact withdrawing from the provincial legislature control over a railway which ought to be permitted to remain within the provincial control, the government will not sanction or permit the Bill to pass. We ask now that it may stand for the purpose which I have mentioned. I beg to move that the debate be now adjourned.


Mr. CLARKE.: I would ask the hon. minister who has just spoken (Hon. Mr. Blair) if the Bill is to be proceeded with that we will get notice in time to give notice of certain amendments that we desire to make.


The MINISTER OF RAILWAYS AND CANALS.: Certainly.


[Stage Direction]
Motion agreed to, and debate adjourned.

[Stage Direction]
House again in committee on Bill (No. 175) respecting the Century Life Insurance Company-Mr. Morrison.
Mr. MORRISON moved :: That Bill No. 175 be amended by adding the following -section at the end of the printed Bill * Clause 3, paragraph 4, chapter 93, 1 Ed. VII, is hereby amended by substituting in the secoud line the word ' ten ' instead of the word 'twenty-five.'


Mr. HENDERSON.: Mr. Chairman, I do not understand that chapter 93, I Edward VII, is before this committee at all. I fail to see how we are going to amend a Bill that has never come before us. Had the amendment been to change or add to Bill 175 I could see the force of it, but I fail to see why or how we can amend a Bill that was passed last session without any notice whatever being given other than that which appears in the Votes and Proceedings. The Bill of last year is not before us and is therefore not open to amendment.


Mr. DEPUTY SPEAKER.: I think the hon. member's point is not well taken. I think we are doing something similar to this almost every day, amending Acts of parliament that are not before us. This is simply proposing to amend an Act of parliament to which the hon. gentleman refers by making a change of these words of ' ten ' for 'twenty five.' Therefore, the Act which is now before us will be amended by the passage of this clause.


The POSTMASTER GENERAL (Hon. Sir William Mulock).: Every Act is before us.


Peter Macdonald: The Act is in a sense before us to-night.


David Henderson: While I do not wish to press unduly the objection it seems to me that this is a most irregular proceeding. I might as well give notice that when Bill 175 is taken up I will move an amendment to some Bill that was passed ten years ago and that has no relevancy whatever to the matter before the committee. No notice of it came before the Committee on Standing Orders. They knew nothing about it, and I would like to know from a member of the government whether he thinks this is a regular proceeding.


The MINISTER OF FINANCE (Hon. W. S. Fielding).: The hon. gentleman (Mr. Henderson), in his illustration, is hardly fair in saying that we might as well undertake to amend a Bill passed ten years ago having no relevancy whatever to the Bill before the House. This Bill has relevancy inasmuch as the Act which it is proposed to amend is an Act relating to the same company. Therefore, there is nothing irrelevant in it.
a


David Henderson: I would agree with the Minister of Finance if we had a Bill
before us to amend the Bill referred to in the notice of motion, but I fail to see anything in the nature of an amendment.


Aulay MacAulay Morrison: The whole Act is one respecting the Century Insurance Company and one section of that Act is referred to in this Bill as being amended. Surely the hon. gentleman (Mr. Henderson) can see the difference between that, and the reference to an Act that had no relevancy to the one in question. The object of the amendment is to reduce the amount that is to be paid upon organization.


Haughton Lennox: We have here a Bill which originally consisted of one section, but now it has grown into a Bill of a great many sections. It appears to me that under the circumstances this Bill should be reprinted and redistributed, or else, liow are the members of this House to know what it is about and to vote intelligently on it. In the case of these Bills which are considerably altered they should be reprinted. I would like to have the opinion of one of the ministers as to that.


Mr. CAMPBELL.: This Bill was fully considered in committee and the amendment was not opposed. If there is to be any very strong objection to it, it would be better to refer the Bill back to committee.


Haughton Lennox: I did not so much need the opinion of a prospective minister as an actual minister of the Crown at the present time.


Some hon. MEMBERS: Hear, hear.
ilr. LENNOX. The majority of the members of this House have not the honour to belong to the Committee on Banking and Commerce, and so it is impossible for us to know what changes have been made in the Bill.


The MINISTER OF FINANCE.: 1 am quite satisfied that the Bill in its present shape is innocent, but if any hon. gentleman desires to have it reprinted I have no objection. The company came before us with a single clause proposing to extend their time for organization for one year. When the Bill was passing through the committee on Banking and Commerce it was deemed well to introduce clauses which have been introduced into the legislation of other companies since this charter was obtained, so that we might put them on even terms with other companies chartered last session and this session. My hon. friend (Mr. Morrison) comes in now with a further suggestion which has not been before the committee, but which is in crnformity with what has been done in other charters, and I do not suppose there would be any harm in permitting the company to do the same thing as others. In the charters of one or two other companies permission has been given for them to


Andrew George Blair: change their name under certain circumstances, and it is proposed that the same power shall be given to this comrany. There is nothing in this Bill as it now stands thaf is not to be found in the legislation granted to other companies.


Robert Laird Borden: I may say that these clauses were inserted in the committee at the instance of the Minister of Finance who proposes to insert similar clauses in all charters of this kind, and so far as the company is concerned that was done against their assent. Clause 4 simply gives the company the right to change its name with the approval of the Governor in Council, a provision which is to be found in the charters of other life Insurance companies, and the next clause simply safeguards the public so that the change of name shall not affect the obligations of the company. I cannot see that there can be any objection to that.


Haughton Lennox: I am perfectly willing to take the explanation of the Minister of Finance, made much stronger and better of course by the explanation of the leader of the opposition, but I take the general objection that when a Bill of this kind is brought before us it should be printed so that we may know what its provisions are and not be' obliged to vote for it in the dark. I call the attention of the government to the matter in order, that they should take steps to prevent such a thing occurring in the future.


Mr. SCOTT.: I entirely concur in the suggestion of the hon. member for West York that this Bill be referred back to the Banking and Commerce Committee for further consideration. The original Bill merely provided a year's extension for the company to procure its license. That was all that was considered by the committee. Now we have another and even more important amendment proposed, not to the Bill, but to the original charter of the company,-a change which has not been considered by the Banking and Commerce Committee. If there was any useful purpose served by sending the Bill in the first instance to the Standing Committee on Banking and Commerce, why is it not just as advisable and necessary to send this new and important proposed provision of the Bill to be considered by the committee ? At the same time, if the Bill is sent back to the committee, I think it would be well to make some inquiry into the history of the company. I am informed that there were serious complaints made against the passage of the original Bill granting the extension of time, by the people who may be termed stockholders of the company, and I think these complaints merit a little more consideration than they have received. I move that this Bill be referred back to the Committee on Banking ahd Commerce.


Peter Macdonald: 1 must inform the hon. gentleman that the motion is not in order, as it has not been made in the proper place. That motion should have been made when the order was read by the clerk at the Table before we went into committee. If the hon. gentleman desires to send the Bill back to the Committee on Banking and Commerce, he can move that the committee rise, report progress and ask leave to sit again; and when the order is next called, he can make the motion to send the Bill back.


Aulay MacAulay Morrison: My hon. friend who has just spoken has on a previous occasion made the reference that he has made at the present time, and the sense of the committee was adverse *to the suggestion he made on that occasion. My hon. friend also had the opportunity before the committee to lodge any complaints which he might have had in regard to the details of the measure. The committee considered the Bill fully, the House considered it and passed upon it, and now my hon. friend comes a second time without any new argument and asks that the time of the committee and of this House be taken up in considering a matter which has already been fully gone into by the Minister of Finance and by the officers connected with the Banking and Commerce Committee. I cannot see that there is any force in such a request, and I would strongly urge that no more time be taken up in a matter which after all has not been shown to be of' any consequence, and that this Bill be allowed to pass. I must confess, as the hon. Minister of Finance has said, that there has been considerable patchwork about the Bill, but that is the fault of the solicitors who have charge of it. I think there has been nothing done but what should have been done by the officers of the committee in seeing that the interests of the public were safeguarded. The government have seen tit to add two clauses, and then it was discovered by those in charge of the Bill that these two omissions had been made, and these two paragraphs are added. They do not affect the subsl^nce of the Bill, and I would strongly urge that it be allowed to pass as amended.
Bill reported, read the third time, and passed.


RAILWAY ACT, 1903.
[Stage Direction]
House in committee on Bill (No. 21) to amend and consolidate the law respecting railways.-The Minister of Railways and Canals.
On section 196-farm crossings.
Mr. HOLMES.: I move that the following words be added :
And whenever the embankment and road-bed of the railway is high enough to permit of its being done, the railway company shall make

undercrossings, passing beneath the track, built up of stone or other material, for the convenience of persons across whose land the railway is carried, in order to permit the passage of live stock back and forth, such under-crossings to be maintained and kept in repair by the railway company.
My object is to anticipate what may be a serious grievance in the future, just as we have been anticipating serious grievances with regard to drainage. Let me cite to the committee a circumstance which will show the necessity for this amendment. On the line of the London, Huron & Bruce Railway, which happens to be a branch of the Grand Trunk Railway, a number of farmers enjoyed for a considerable length of time under crossings. They enjoyed them as a right from the railway company in harmony with an agreement made by that company with tlie individuals. The agreement was made some twenty-live years ago and was drawn up by an hon. member of this House, who is consequently familiar with the circumstances. The railway company lived up to that agreement for twenty-five years, but during the past year, for some reason or other, it has filled up those under crossings, very much to the detriment of the farmers over whose laud the railway passes. In the future construction of railways, a precaution of that kind ought to be provided, because it is a very serious matter to a farmer to have to drive his cattle across a railway instead of under it. Where a farm is crossed by a railway with a number of level crossings, that involves serious risk to him in driving his cattle back and forth. I brought this case particularly to the attention of the hon. minister, who promised to consider it; and it seems to me that in anticipation of difficulties of that kind in the future, some provision should be made for the placing of .under crossings in the formation of the roadbed. I do not wish to convey the idea that all the under crossings on the line of the London, Huron & Bruce have been filled in, but certainly some have, very much to the injury of the farmers. The excuse given by the company for violating its agreement is that this agreement,was not embodied m the deed of transfer of the property from the farmers to the company and not registered, and therefore they claim that they are under no obligation to maintain these under crossings, although they admitted their own liability by keeping them in a state of repair for twenty-five years. It seems to me that a provision of this kind would contribute also to the safety of the travelling public by providing against cattle being struck by passing trains and thereby endangering the safety of the passengers.


Thomas Simpson Sproule: I understood that the hon. minister had an amendment to propose to tins clause, which would give the right ''l farmers to have crossings over portions ot their land, in cases where a part had been


Robert Holmes: disposed of and a part retained. A man, for instance, who has one hundred acres, might sell fifty acres. It might happen that the crossing was on the part sold, and because thei law only obliges railway companies to give one crossing over a lot, they could refuse to furnish another crossing or to allow another to be built on that portion of the lot remaining unsold. I understood that the hon. minister intended proposing an amendment to meet such a case, and it would be more proper to deal with that now before considering the amendment proposed by the hon. member for West Huron (Mr. Holmes).


Mr. LANCASTER.: I have prepared an amendment with regard to level crossings, which perhaps the hon. member for West Huron would accept as being more practical than his own. It would impose a heavy burden on the railway company to compel them to tunnel under their roads every quarter of a1 mile or so. It would almost amount to reconstructing the whole roadbed, and although that might be in the interest of the farmers, it might; also be unreasonable. What I was going to propose was the following amendment :
That section 196 be amended by adding after the word ' accidents ' in the last line of such section the words ' and the company shall erect and maintain fences of the minimum height of four feet six inches on each side of the crossing from the company's boundary fences to points as near to each side of the rails as to admit of the safe passage of trains.
That perhaps would meet with the approval of the hon. minister. Even if the railways do not agree to it, it is an obligation which we have the right to impose on them. The remedy proposed by the hon. member for West Huron (Mr. Holmes) is to compel the railways to provide passage for the animals underneath, but we ought not to impose burdens on railways which are not absolutely necessary, and the plan I suggest would be cheaper and accomplish the same result. It may be known to some lion, members that during tlie recess, I was attending many meetings of the cattle-guard commission, and it is but right that I should tell the House that although the farmers were very anxious to get that law amended, they also were urging upon me to get the farm crossings protected in some such way as I am providing. I would point out also that the hon. minister, in drawing up this measure, has imposed a burden upon the farmers with regard to farm crossings which does not exist to-day.
The law which is now in force, and which will be in force until this parliament prorogues, simply provides that ' every company shall make the crossings for persons across whose lands the railway is carried, convenient and proper for the crossing of the railway by farmers' implements, carts and other vehicles.' Under the law as the I lion, minister proposes to amend it, pro-

vision is made that ' every company shall make crossings for persons across whose lands the railway is carried, convenient and proper for the crossings of the railway for farm purposes.' The word ' vehicles ' is not used. And this provision is added :	' In
crossing with live stock, the same shall be in charge of some competent person, who shall use all reasonable care and precaution to avoid accidents.' Of course, we presume that every person will use care and precaution, but here is a distinct addition to the law, laying it down as an emphatic command to the farmer that care and precaution shall be used. But while we impose it upon the farmer that he shall use proper precautions with regard to live stock, we ought to compel the railway to use proper precautions also. Both parties ought to be compelled, or induced, so far as we can control them, to do everything reasonably possible to prevent the impact between animals and the trains. But it is not only at farm crossings that cattle and the trains come in contact. As the law stands, it is not necessary for the railway company to do anything but to have its line fenced between its right of way and the adjoining farm property. While the gate of the farm *crossing is open for animals to pass, they have access to the whole width of the right of way. There is no immediate danger except at that point. But the animals are apt to turn to the right or left as soon as they get through the gate, and they have the lands of the railway between the fence and the track to run upon. They have to be headed off and driven back. But they may meet a train at any moment. If there were fences set at right angles to the boundary fence and carried down as far as would be consistent with the safe passage of trains, the danger from these cattle getting upon the railway right of way would be reduced to a minimum, because they could only escape where the rails are. In the case of highway crossings, there will be cattle-guards. I am not suggesting that there should be cattle-guards at the farm crossings, but I am only saying that we should reduce the chances of danger as far as we can. While we impose this additional clause upon th,e farmer, bringing it in this year for the first title, providing that the farmer is to have his animals under the care of a competent person who shall take all reasonable care and precaution to avoid accidents, we ought to impose upon the railways the duty of doing all that is reasonably possible to assist the farmer in preventing accidents. It would be a matter of small expense to carry the fences out at right angles to as near the rails as would be consistent with the safe passage of trains. That is why I propose this amendment. It is not an undue or unreasonable imposition upon the railway. The amendment proposed by the hon. member for West Huron (Mr. Holmes) is designed to accomplish the same
end and remedy the same grievance. PerI haps the hon. gentleman will come to the conclusion that my amendment will accomplish what we both want, and it lias the additional advantage, as I regard it, that the expense will be merely trifling as compared with his proposal of tunnelling under the railways at each farm crossing, which might be every eighth cr quarter of a mile.


The MINISTER OF RAILWAYS AND CANALS.: Three or four subsections have been dealt with by hon. members ; I shall try to deal with them in the order in which they have been brought up. The hon. member for Easit Grey (Mr. Sproule) called attention to the case of farms being split up and portions sold, and suggested the making of additional farm crossings. I think the hon. member must have misunderstood me if he thought that I had engaged to prepare an amendment on the subsection. 1 did engage to turn the matter over in my mind to see whether the proposition that the hon. gentleman made could be accepted. I have considered the matter, but have not been able to see that it would be reasonable or fair to multiply these farm crossings to the extent that would be necessary if the suggestion were given effect to. It is possible that a farm might be cut up into half a dozen parts and distributed among as many diherent owners. We know that that is very much the practice in the province of Quebec, where the farms are very narrow. A railway might pass eight or ten times as many crossings as were originally provided for, by reason of the property being divided and passing into different hands. That, I think, would be an exceedingly onerous obligation to impose upon the railway. I think that it would also multiply the danger involved in operating the railway. On consideration, it does not strike me that we ought to require this of the company. It is always possible for the owner of a farm, if he decides to sell, to afford opportunity to the person to whom he sells to use his crossing. I think it would be better to require that that should be done rather than to multiply farm crossings and increase the hazzards involved.
Now we come to the further vexed question, the amendment proposed by the hon. member for West Huron (Mr. Holmes). I think that is a very serious proposition. 1 must confess that it does not commend itself to my mind. I think we are carrying this sort of legislation pretty far and are imposing very heavy and expensive obligations upon the railway companies which they have not hitherto been called upon to bear.
I am not saying that we have already gone too far, but I am saying that we had better proceed a little more deliberately. We had better see how what we have already effected works, and, perhaps, later, this or a cognate proposition might be considered by parliament. But at this stage, not hav-

mg been able to give to the subject proper consideration, not having heard what may be alleged on the other side, I think I would not be justified in acceding to the hon. gentleman's request or asking the committee to entertain it.
My hon. friend from Lincoln (Mr. Lancaster) has a suggestion to make, and he covers it with the remark that under section 196 we are imposing additional burdens upon the farmers, and we may, therefore, reasonably and fairly, as a set-off against that, impose some further obligation with respect to these crossings upon the railway company. I am not saying whether or not the committee ought to require them to erect these cross fences. I have this observation to make with regard to the hon. gentleman's suggestion, that I do not see we are imposing any additional obligation, or one that involves a big charge upon the farmer in the clause that we have proposed.
In the crossing of live stock the same shall be in charge of some competent person who shall use all reasonable care and precaution to avoid accidents.
We provide that a person taking the live stock across a railway shall do what every careful man does do now, who is taking cattle across a railway over which perhaps many trains are running. Every person puts his cattle in the charge of competent hands, and he would be certain to have a suitable person in charge of the cattle. Therefore I cannot see that in the language of this clause we are making an undue demand upon the farmers or increasing their responsibility in the premises. Now, coming to the question of expense, I would be glad to have a more general expression of opinion from the committee as to the desirability of having this provision made. I confess that there is only one reason which can be assigned against adopting it, and that is, the one of expense. There are reasons which suggest themselves to my mind, and which have already been mentioned by the hon. member, why a precaution of this sort would be wise. But when we consider the number of crossings on these railroads already, the question whether the charge might not be unduly burdensome, is one that I would like to see more fully discussed by gentlemen who are better acquainted with the practical side oi; the question.


Robert Holmes: I am free to admit that it would be better to adopt the suggestion of the hon. member for Lincoln than to make no provision at all regarding the crossings ; but I am not free to admit that his is a better provision than the amendment I proposed myself. In the first place the proposition of the member for Lincoln would imply that at certain seasons of the year there would be along the ],ine of railway merely a number of boxes that would be filled up with snow, to the detriment of the


Andrew George Blair: farmers who were passing to and fro, and it would not be found as workable. But my own proposition to make a permanent crossing beneath the railway


Mr. SMITH (Wentworth).: Would that fill up ?


Robert Holmes: It might fill up with snow, but it would be easier to remove it, because it would be on a lev'el track. But at the same time, you would have one under crossing where you woidd not have any over crossing. I will also admit the contention of the minister that it puts on the railway a considerable burden to provide for an under crossing. Whether we should impose that burden on the railway is not for me to say. At the present time I am asking for better protection for farmers and for their stock than they have in the provisions of the present Act. I realize that to require the company to make a crossing every few hundred yeards would perhaps be a burdensome thing for them to do, but in the long run, I think it would be to the advantage of the railway as well as to the farmers, because if they were maintained, they would be there for all time and would be a great convenience to the farmers.


Mr. REID (Grenville).: I would like to mention to the minister one reason why 1 think, these under crossings would be objectionable. For instance, in the case where a farmer has part of his land on one side of the railway and a part on the other side, and is obliged to draw his hay across to his barn on the other side. In that case he would have to have two crossings, that is, an under crossing for cattle and an over crossing for his wagon. In other words, it would necessitate the railway giving that farmer a double crossing, unless the under crossing was made wide enough and deep enough to allow a load of hay passing through, It would be very costly to make the under crossing large enough for a load of hay or grain to pass. For this reason I think it would be a hardship to compel the railway to make an underneath crossing. Now, I have not heard of any complaint with regard to accidents at the crossings we now have, though of course there may be accidents now and then. But the great difficulty I have heard of among farmers is where the farm has been divided, where a farmer has sold off, say, fifty acres of his land. In a case of that kind this clause simply states that the farmer shall have a crossing. As long as the board would have a right to authorize the railway to grant a crossing in a case where they thought it was right, I think that is all that is required. So far as this amendment of the hon. member for Lincoln is qpncerned, I doubt myself whether it is really necessary. Of course cattle may go into a place that is fenced in, then turn around and run along the track, and it would be a great

difficulty to get tliem back. But I think, as a rule, cattle go straight across the track. However, I have not made any inquiries to ascertain whether such a change is necessary, hut I do not feel at present that it is necessary to impose such a burden on the railways.


Edward Arthur Lancaster: I forgot to tell the minister a moment ago that a good many farmers have asked me if there was no way by which the Railway Committee of the Privy Council would permit them to go upon the railway lands and build these fences themselves. The farmers would he willing, if the railways would permit them, to go to the expense of digging these post holes and putting in the posts and putting on the boards or wires. The farmers will be willing, if the railways will permit them to go to the expense of digging these post holes and putting the necessary boards up, to do so, but I have been obliged to tell them that they Cannot go upon the railway lands and that I do not know any way in which they can get permission to do so.


Fletcher Bath Wade: When the hou. gentleman (Mr. Lancaster) speaks of farmers one would suppose that he was representing all the farmers. I chance to represent a constituency composed largely of farmers, and I think it is my duty to speak for them. I assume that the hon. gentleman means to convey to the committee the impression that he speaks only for the farmers in his riding.


Edward Arthur Lancaster: For the farmers generally in Ontario.


Fletcher Bath Wade: I do not know if he can speak for the farmers of Ontario, but certainly he cannot speak for the farmers outside of Ontario. As to the suggestion which has been made in regard to underground crossings or subway crossings I think that is not practicable at all. If they had these crossings dug underneath the railway during the winter time they would fill up with snow and in the spring and autumn they would fill up with water, and it would be impossible to drain them. I cannot see why there should be a demand for anything of that sort. The farmers are not a skim; for it.


Edward Arthur Lancaster: They are asking for it.


Fletcher Bath Wade: The farmers would not ask for any such crossing as that, because I think it would be unreasonable and I do not like to hear it said that they are asking for anything unreasonable, because I have found the farmers to be intelligent men who are only asking for what is right. They are quick to ask for what is right and to obtain it too if they can. In regard to the other proposition made by the hon. member for Lincoln, I would be slow to take any suggestion of that sort until I had an opportunity of laying it before my constituents 195
who are largely made up of farmers. No complaint of that sort has come before me. The only demand that has come before me is for good substantial crossings, good gates with fastenings upon them and the only complaint is in regard to the matter of fires. This has been remedied in the Bill as it stands now. I can see very substantial objection to this proposal of fencing and there may be objections to it which would occur to the minds of farmers but would not occur to my mind and would not occur to the minds of very many of the hon. gentlemen present. If two lines of fences were built up to the track as has been suggested by one of the speakers, wlrat would be the result ? Suppose a man was driving a herd of cattle through from one side of the track, when the cattle come upon the track the most natural thing for them to do is to spread off each way. Before the farmer can bring them back he has to climb a four and a half foot fence, and if he is not more sprightly than some of us it will take him so long getting over the fence that the cattle will be away up the track and perhaps meet a locomotive before he overtakes them.


Mr. COCHRANE.: I do not think that would alarm the practical farmer.
Mi'. AVADE. AVhat does the hon. gentleman (Mr. Cochrane) say ?


Matthew Henry Cochrane: If the hon. gentleman does not know more about law than he does about farming, then he does not know anything about it and his opinion is not worth anything.


Fletcher Bath Wade: That is an expression of opinion by an hon. gentleman whose opinions do not meet with very much favour in this House. I think I know a great deal more about farming than the hon. gentleman does. I was brought up on a farm.


Matthew Henry Cochrane: ' Seest thou a man wise in his own conceit, there is more hope of a fool than of him.'


Fletcher Bath Wade: Satan quoting scripture. I usually know what I am talking about and that is the difference between the hon. gentleman and myself. One of these days I may be able to convince him that I do know something about law, but this House is not interested at the present moment in knowing whether I know anything about law or not. I would be very slow in asking this House to make any radical change in the Act affecting farmers until I had some complaint from the farmers I represent and until I know whether the proposed change will meet with their approval or not. This matter of fencing, this question of cattleguards and all these things have been before this House year aftei year. This is a new suggestion thrown out and I think the remarks of the hon. Minister of Railways and Canals are very appropriate and pertinent when he says* that we


G211 COMMON'S
[Stage Direction]
should take time to consider this matter before we make any change of this kind. I can see a further objection to the building of these fences. They would be a snow trap in winter time. The space between the two fences close together would fill up and blockade the crossing which would be a detriment to the farmer who has to use any of these crossings in the winter time. 1 do not believe there would be the slightest complaint on the part of the farmers as 'to farm crossings if all the gates were provided with proper fastenings and hinges so that they could be easily opened and closed.
Thomas Simpson Sproule: I wish to say a word or two more in regard to the necessity of more crossings than one to each 100 acres. I understood the hon. minister to say that he had intended to direct his attention to this with a view of presenting an amendment. It was in that sense that I understood he had an amendment to propose, but he tells me now that he has no amend' ment.


The MINISTER OF RAILWAYS AND CANALS.: 
Thomas Simpson Sproule: That is the amendment I referred to and it is an amendment that would meet the case. If land changes hands there must be an owner of it and if the landowner is entitled to a crossing the board is empowered to order that it shall be provided. I am quite sure that it would be reasonable enough to do so, and therefore I think that would meet every requirement of the case so far a-s my judgment goes. That is the amendment I referred to, but I understood that the hon. minister was not prepared to make any amendment whatever.


The MINISTER OF RAILWAYS AND CANALS.: I had in my mind that the hon. gentleman took the ground that the railway company should provide a crossing in respect to every other piece of land which had been cut-off from the larger portion,


Fletcher Bath Wade: and which had passed into new hands, that wherever a farm was cut up the person who got the other portion of the land from the original owner would be entitled to a crossing. I thought that was what the hon. gentleman was asking for. I am very glad to hear that this will be satisfactory to him.


Thomas Simpson Sproule: I have in my mind a case like this :	In our country the land
was originally laid out in fifty acre lots. One fifty acre lot was a free grant and the adjoining one was what would be called in the North-west a pre-emption lot. The settlers might retain that pre-emption lot or drop it, or sell his right to some other person after he had improved his own lot and increased its value. He might sell his right to that fifty acres to some other person. The farm was originally 100 acres aud the railway crossed the 100 acres and gave but one crossing. It was to meet such a case as that that I wished to have the clause amended, but I think this will meet the case in every respect, and I am satisfied with it. As to having crossings underneath the railway I can readily understand that it would be convenient for the farmers, but the objection is raised that it would tend to interfere with the safety of the travelling public, and it would also be enormously expensive as it would mean a subway about every quarter mile. I think the House will feel reluctant to order such a thing as that. These subways would also be troublesome inasmuch as they would be likely to fill up with snow. The hon. gentleman from Annapolis said that the fences would also pile up snow in winter, but if they are wire fences there would be no danger from that source. I confess that I do not look with very great favour upon the proposal to build these fences to the track, for unless there be a cattle-guard at every one of these crossings the cattle may frequently get on the track. It does seem to me that if the farmers have proper level crossings it is all you can reasonably expect the railways to provide. In the original clause it was stated that these crosssings should be for farm purposes, and I am glad the clause has ibeen amended with regard to that. I know a case where the person who purchased one portion of a sub-divided farm claimed the right to have a crossing and he allowed others to cross, but the company objected because he had only the right to cross himself and then only for farm purposes. This is an unnecessary and unjust restriction, and I am glad to see that the section has been amended so that the board may order a crossing on whatever terms they deem proper.


Matthew Henry Cochrane: The minister intimated that he was willing to take sugestions from practical men, and I suppose he meant those who were accustomed to drive cattle across a railway track.
[DOT]6213

Some lion. MEMBERS. Hear, hear.


Matthew Henry Cochrane: In that respect I am practical, and I may tell the minister that while I do not want to make a speech for -* Hansard,' I will give him my view. As to the member for Annapolis (Mr. Wade) I will dispose of him by quoting a passage from Scripture ;
Seest thou a man wise in his own conceit there is more hope of a fcol than of him.


Some hon. MEMBERS: Hear, hear.


Matthew Henry Cochrane: As to fencing the crossings, the arguments made by some hon. members are fallacious. When the person in charge of the cattle opens the gate and the cattle go through, the first thing that attracts their attention is the long grass on both sides of the railway track, and their instinct is to scatter in different directions to get at that grass, and if a train comes along an accident may happen. If there were wire fences running along each side of the crossing, then nothing but the bare track would be open to the cattle and the chances are ten to one that they will not go on the bare track. I would not require those fences to be as high as the farm fences, but if there *was some kind of a fence running up to the track which would prevent the cattle from turning to the right or to the left it would be a great improvement on the existing condition of things. As to tunnel crossings no matter how convenient they might be to the farmers I would not vote for it because of the extremely detrimental effect that it is bound to have on the operation of railways. However, now that we are legislating to make the farmers cautious we should also make the railways a little more cautious to protect the farmers, and if the minister would carry out the suggestions which I make it would have a tendency in that direction.


Some hon. MEMBERS: Hear, hear.


Ernest D'Israeli Smith: I was glad to hear the minister invite suggestions from practical men and I shall avail myself of that invitation. I take it that the railways formerly construed the existing law to mean that they must keep up fences on those crossings because along the Grand Trunk Railway and the Toronto Hamilton and Buffalo there were originally fences at all these crossings. I cannot imagine it possible that such a Bill as this should go through parliament without providing for these fences. If the existing law does not provide for them, then a clause such as that proposed by the hon. member for Lincoln (Mr. Lancaster) should be inserted. One man could not tend a drove of cattle crossing the track; It would require two or three men. It is a very easy matter to maintain light fences of wire which would not catch the snow, and I believe that all the railway companies of this country feel the necessity of build-1954
ing these fences; but when we are passing the Railway Bill we might as well make it clear. A word with regard to underground crossings. Originally there were underground crossings under the Grand Trunk Railway, and that I suppose was one reason why it cost $100,000 a mile. Now, since the wooden crossings have rotted away, the company are putting in expensive stone crossings, being obliged by the terms of their agreement with the farmers to do so; but they are making them so narrow that they are practically of no use. There has been some litigation with regard to them, but as a rule the farmers dread the expense of litigation with a railway company. Some of the crossings which were originally ten feet wide have been reduced to three or four feet, which will not let more than one animal go through at a time. The danger to the railway of these crossings is so great that I could not consent to vote that they should be built. One objection has been urged to them is that they get filled up with snow. This objection is quite invalid because farmers do not pasture their cattle in the winter time, consequently do not care whether they fill up with snow or not. But I think it is absolutely essential that provision should be made that these fences should be built at every farm crossing, unless this is done I feel sure there will be a great outcry among the farming community and I think justly so.


Samuel Barker: I do not think I would have said anything on this clause had I not been specially referred to by the hon. member for West Huron (Mr. Holmes). Having been formerly connected with a railway company, it might appear that what I say might be influenced somewhat by that fact. However, for a good many years I have had no interest in nor connection with any railway company. At the same time, I have had a good many years' experience on many of the questions that have been discussed here; and I can say, after hearing what has been said, that there is a good deal of truth and a good deal of error on all sides. The hon. member for Huron has referred to an agreement which he says was drawn up by me some twenty or twenty-five years ago. I have no doubt whatever that the agreement he refers to, if it exists, was drawn by me. In the case hf the railway to which he alludes, all agreements that were entered into were put In writing; and I can only say that from my long experience of railway companies, I do not believe that either the Grand Trunk, 'which now owns the road which he referred to, or any other railway in this country, would repudiate a written agreement which had been entered into by the company or by its predecessor. I have never yet known an agreement to be repudiated in that way, and I think there must be some mistake. I can only say that if the Grand Trunk Company is repudiating such an agreement,

'I should -be happy to assist to the utmost of my power in compelling the company to adhere to that agreement to the last letter. I can hardly believe that a railway company would be guilty of such dishonourable conduct as to repudiate such an agreement. With regard to the point the hon. gentleman makes as to underground crossings, I know that the railway companies of this country have spent thousands of dollars in buying up these crossings in the interest of the safety of trains that run over their tracks. Every person connected with railways knows that every hole in the track is an element of danger. If a wheel gets off the track and runs along an embankment, there is frequently no serious accident; tout if a "wheel runs off the track and gets into one of these underground crossings, there may toe a very serious catastrophe involving loss of life. There have been many devices to get over the difficulty; but the railway companies, in the interest of their passengers, in the interest of their men, and in the interest of the safety of their rolling stock, have spent many thousands of dollars in buying up these crossings. I think the safety of the trains is the great consideration that should be given weight to here, and I should be very sorry if this parliament should under any circumstances commit itself to ordering the construction of underground farm crossings. With regard to the cross fences, I think most hon. gentlemen will recollect that some ten or fifteen years ago, along the railways in the province of Ontario there were to be seen many fence posts which had formerly been fences at farm crossings; but if the hon. gentleman could travel along all the railways of Ontario to-day he would see very few of these cross fences existing. It has been said here to-night that it is all nonsense to say that the farmers object to them. I know personally that many farmers have objected; they have told me that they do not want them. If the farmers thought they "were good, they would have been continued; but many who had agreements with the railway companies requiring these fences abandoned them and have not insisted on the agreement to keep them up. The reason is obvious enough. Cattle will get on to the railway whether driven across it or not. Farm servants, children, and others, "will be negligent, and will leave gates open; colts and cattle will get out and ramble along the track; the train will come along, the animal will run ahead of the train until It comes to the cross fence when it will run "up to the opening and get killed. It is an element of danger. Formerly, when the fences were of wood, there was another element of danger in these cross fences, the danger of fire with the train rushing along and the sparks flying backwards, these fences were liable to catch fire and conduct the fire into the farms. But it seems to me there is not much in the point, because under the clause proposed by the minister, if the board should come to the conclusion that these fences are necessary or expedient, it can order them. The language of the clause permits the board to order any kind of crossing they like. It says they may order and direct how, when, where, by whom and upon what terms and conditions such farm crossing shall be constructed and maintained. These terms are broad enough to enable the board to order any kind of fence that may be required at a crossing. With regard to public crossings, the hon. member for Lincoln (Mr. Lancaster) has said that the minister proposes to add some wofdis here which impose a greater burden on the farmer or the person living in the neighbourhood of the crossing than has hitherto existed. There is not one word in this clause that any judge of the land would not say is part of the law as it stands today. Every lawyer knows that a judge, in directing a jury on this subject, would say that the law providing that the cattle or horses should be in charge of some person does not mean merely that the person may be there without doing anything. Over and over again it has been decided that if the person in charge did not take reasonable care to protect the cattle in crossing, the complainant had no case. All that; the minister has done is to add words wHich make the legal effect clear to the ordinary lay mind, and it is better that the farmer should know exactly what the law means than have to go to a lawyer to interpret it.


Edward Arthur Lancaster: I do not think that the hon. gentleman could have considered the language preceding this. There is not a word in the provision of the law preceding this, requiring that any one must be in charge of the stock. There is a great difference between having to be guided by the common law as regards what is contributory negligence and making a special enactment saying that a certain thing must be done. In the latter case if that thing be not done there is of course negligence, whereas, under the common law, all the circumstances being considered, there might not be negligence.


Mr. ERB.: While I do not think we would be justified in passing legislation to compel railway companies to construct under crossings, still I do think that some provision should be made compelling the railway companies to give the farmers the use of existing structures where they may be of service. I have an instance in my mind of a culvert which is sufficiently large to allow cattle to pass through it. The farmer has land on both sides of this culvert, and during the greater part of the summer the watercourse is dry and cattle could pass through without any injury. The farmer would be willing to put the necessary side


Samuel Barker: fences from the division fence to the culvert, and if necessary to plank the bottom of the culvert, so that the cattle could pass through without tramping up the bottom. It would not put the railway to any additional expense if he were allowed to use this culvert, and I think that a provision might he inserted compelling the railway companies in such cases to allow the use of their structures for the passage of cattle.


Mr. JOHNSTON (Cardwell).: If the hon. minister considers he will be imposing too great a burden on the railway companies to compel them to make these double fences, he should at least give the farmers the right to build them themselves if they consider them of advantage. I know where farmers have built fences from the railway lence to as near the railway track as possible in order to get cattle over with less trouble. One man could handle a dozen cattle easier where there is a fence on each side up to that track than two men could where there is no such fence. The fact that the municipalities compel the railway companies to put fences up at the highways is proof that the people believe it is easier to get cattle to pass between a fourteen or fifteen feet gap than through one of two rods. The railway companies should either be compelled to put these fences up themselves or allow the farmers to put them up if they require them.


Mr. INGRAM.: Does the hon. member for South Perth say that the railway companies object to their culverts being used for the passage of cattle, when they are in such a condition that they may be used for that purpose V


Dilman Kinsey Erb: 1 know that an owner of property told me a few days ago that he would like to see some provision made which would give him the right to make use of a railway culvert by building all the necessary works himself. Whether he applied to the company and was refused, I am not in a position to say.


Andrew B. Ingram: In that case there is nothing in the contention of the hon. gentleman. We know that in the last twenty-five years the construction and operation of railways have undergone a great change. The reason why underground crossings have been done away with is because the companies have changed very materially their system of operating. Years ago their rolling stock was much lighter but when they concluded to make their rolling stock heavier, when they decided to increase their engine power, they found that it was necessary to close up these under crossings because they interfered with the solidity of the road-bed. The first thing to be considered is the safety of the travelling public, and it was that which the railway companies had in view when they filled up these under ground crossings. Then we have water passing under the railways in many {daces. Formerly many railways had wooden bridges over these water courses, whereas to-day they have very strong structures built over them in order to make them perfectly safe and strengthen the road-bed. I did attend meetings of the Gattle-guard Commission, and I found farmers stating that they did not attach as much importance to the cattle guards as.they did to farm crossings and the way they were kept on different railways. They say that they used the private farm crossings fifty times for once they used a highway crossing. The principal reason for using the farm crossing was to drive their stock and produce back and forth, and they thought some steps should !be taken in order to protect their stock and loads of produce going over the track from time to time. And they suggested that fences be run from the gate near to the rails on the railway. I am not prepared to say that that would be a good thing. I do not know from j)ersonal experience whether it would be or not. But perhaps I might be permitted to suggest an idea in view of what the farmers stated. They said they would be willing to furnish the material and do the work themselves, if the railway companies would give permission sooner than do without them. Under this section the board would be empowered to consider the applications ot these people :	and, where there would
be no harm in allowing a wire fence from the farm crossing gate up to the railway, if the farmer chooses to provide such a fence, I do not see any reason why the board should not have the power to allow the farmers to brake the fence. That seems to be the idea ol these farmers, rightly or wrongly. Having been present and having heard their views, I think it is my duty to lay those views before this committee. So far as authority for creating these farm crossings are concerned, I think the amendment proposed by the hon. minister will cover the point.


Dilman Kinsey Erb: The remarks made do not apply to the case I referred to. The culvert is an open culvert and the cattle, if permitted to pass through it, would not add at all to the danger of running trains.


Andrew B. Ingram: What railway 1


Dilman Kinsey Erb: The Grand Trunk Railway.


Robert Johnston: I believe that if the right were granted to farmers to make the fences from the farm gate up to near the rails it would facilitate the crossing of cattle and would also, to a large extent, provide for the case mentioned by the hon. member for East Grey (Mr. Sproule). And I think that the farmer should be allowed to make these fences .if he thinks it best to do so in his own interest. It would be no disadvantage to the railway whatever. It would be better to have wire fences, as they would not catch the snow.


The MINISTER OF RAILWAYS AND CANALS.: In view of the great difference of opinion of the committee as to the possibility of adding a clause requiring these fences to lie constructed at farm crossings, I think it would be unwise to adopt the amendment proposed by the hon. member for Lincoln (Mr. Lancaster). But it will be observed that the board is fully empowered to deal with this question. The board can inform themselves as to the utility and desirability of having these fences, and they can require the railway companies to construct them if they think it well to do so. I think the matter stands in very good shape as it is, and that it would be undesirable to adopt the amendment. My hon. friend from South Perth (Mr. Erb) has expressed the wish that, if possible, a clause may be included in the Act enabling farmers to utilize the culverts or arches which are on their farms-, for the purpose of driving cattle through. I apprehend there cannot be many cases of that kind, and that this is not a matter requiring provision in a general law of this kind. At this time it could not be satisfactorily dealt with. Not having heard of it before, I am not in a position to pass on it satisfactorily. I think my hon. friend will see the desirability of not asking me to make an amendment of that kind at present.


Dilman Kinsey Erb: Would there be any objection to empowering the commission to deal with these applications if they are made ?


Haughton Lennox: Would not the board have power to deal with it under the subsection proposed by the hon. minister ?


The MINISTER OF RAILWAYS AND CANALS.: I think under the general powers it might.


Dilman Kinsey Erb: That would answer.


Edward Arthur Lancaster: Referring to the suggestion of the hon. minister that there would not be much harm in leaving this question of fences between the farm gate and the railway to the board, I would point out that the board will probably be guided in their decisions by what they find in the law. In ordering a new farm crossing, they would naturally say : We should not provide that these fences shall be made, because other farm crossings have not these fences. If we are of opinion that these fences ought to be made, we ought to say so in' the statute.


The MINISTER OF RAILWAYS AND CANALS.: I remarked that in view of the great difference of opinion on the part of the committee, we should not make the provision.


Edward Arthur Lancaster: I think there is a strong majority in favour.


The MINISTER OF RAILWAYS AND CANALS.: I doubt it. I think the strength of the argument may be said to be against


Robert Johnston: the hon. member's amendment. I think the general power given to the board to require any appliances that they think necessary at crossings, will apply to these farm crossings and the protection of them. If there is a case made out in favour of placing these fences on each side of the farm gate, there is no doubt but the board has power and it would act upon that power.


Peter Macdonald: There are a number of amendments to be dealt with. They are all amendments' to the clause, and not to other amendments. The first is that of Mr. Cowan


Mahlon K. Cowan: In order to clear the atmosphere, I may say that when I moved the amendment the other day to clause 196, the clause stood as printed in the original Bill, and no subsection was proposed, so far as I knew. But subsection 2, as now proposed, obviates the necessity for the amendment I proposed. Therefore, with the consent of the seconder (Mr. Thompson, Haldi-mand), I beg leave to withdraw the amendment I made.
Amendment (Mr. Cowan) withdrawn.
Amendment (Mr. Holmes) negatived.
Amendment (Mr. Lancaster) negatived.
Amendment (Hon. Mr. Blair) agreed to, and section, as amended, agreed to.
On section 197-fences, cattle-guards.


Mr. SUTHERLAND (Essex).: I think section 197 should be dealt with in connection with section 237. Now in connection with this cattle-guard question-


Edward Arthur Lancaster: Will the hon. gentleman allow me a word ?


Robert Franklin Sutherland: No, I will not.


Edward Arthur Lancaster: I merely wanted to say


Robert Franklin Sutherland: I have the floor at the present time. I am not in the habit of wasting the time of the House. While we on this side of the House have been paying just as much attention, and perhaps more attention, to this Bill than hon. gentlemen opposite have been doing, they have been trying to create the impression in the country that they are the only people who are paying any attention to this Bill at all. I want to say in the first place that the people of this country will view with a great deal of satisfaction the conduct of the minister who has charge of this Bill, in the first place, for the great care, consideration and judgment he has manifested in its preparation ; in the next place, for the calm and judicial way in which he has presented the Bill before the House, and the readiness with which he has invited criticism from both sides, and has yielded to all sorts of suggestions for the purpose 1 of perfecting this Bill. I believe that the

Bill will become law one of these days, and that it will reflect the greatest possible credit on the lion. Minister of Railways. Now there has been a great difference of opinion as to what form an amendment in respect to cattle-guards should take to remedy the evil which certainly exists, to the detriment of the farmers and owners of cattle. That fact is very apparent from what occurred last year. A number of gentlemen have sought to frame an amendment to the existing law which will be generally satisfactory. There is no question that while this matter of cattle-guards is important to every province of Canada, it is especially important to the province of Ontario, and the farmers of that province have taken more interest in it than the farmers of any other part of the Dominion. Last year there were several amendments proposed to the existing legislation in respect to cattle-guards. The hon. member for Lincoln (Mr. Lancaster) proposed an amendment, and when we came to consider it we found that the phraseology of that amendment was defective, perhaps from the reason indicated to-night by the hon. member for Hamilton (Mr. Barker) who, in speaking on another section, said in effect that it was desirable that changes made in the legislation should be in such a form that farmers and ordinary men who are not accustomed, like lawyers, to examining legal phraseology, should be able to understand exactly what the statute meant. Now, whether it was the ambiguous terms of the amendment of the hon. member for Lincoln or for some other reason, there has been a great deal of difficulty in ascertaining the exact meaning of that amendment, and a difference of opinion as to whether it remedies the evil which we are all seeking to remedy. In dealing with this question we must not treat it as a party question, we must find the phraseology that will accomplish the purpose that we have in view. Our purpose is to place the onus in the right quarter. Hitherto the result of litigation has been almost invariably that the farmer found himself out of court. Now what we want to do by this legislation is to place the onus upon the railway company when cattle are killed or injured. Without debating this question at great length, because it has been threshed out over and over again, I propose to offer an amendment which, to some extent, embodies much of the phraseology which the Minister of Railways, after a great deal of pains and attention, has suggested. While I have used to some extent the careful and exact phraseology of the Minister of Railways, still I do not think it goes to the root of the matter, or goes as far as the farmers desire and is necessary. I have gone a little farther, and I propose to read to the committee the amendment which I suggest, and in which I think all will concur. My amendment which I move as a subsection to section 197, reads as follows :
When any cattle or other animals at large upon the highway or otherwise, get upon the property of the company and are killed or Injured by a train, the owner of such animals so killed or injured shall be entitled to recover the amount of such loss or injury against the company in any action in any court of competent jurisdiction, unless the company in the opinion of the court or jury trying the case establishes that such animal got at large through negligence or wilful neglect or omission of the owner or his agent, or of the custodian of such animal or his agent ; hut the fact that such animal was not in charge of some competent person or persons shall not for the purpose of this subsection, deprive the owner of his right to recover.
I submit that is a good clear cut amendment which both sides can concur in, and which will exactly meet the situation.


The MINISTER OF RAILWAYS AND CANALS.: That would more properly be moved as subsection 4 to section 237. I wish to move an amendment such as I have handed to you, Mr. Chairman. I beg to move :
That subsection three of section 237, line three, be amended by inserting after the word ' train ' the words ' at such point of intersection,' and to add as subsection four the following :
4. Whenever any cattle, at large upon the highway or otherwise, get upon the property of the company and are killed or injured by a train, the owner of such cattle so killed or injured. shall be entitled to recover the amount of such loss or injury against the company in an action in any court of competent jurisdiction, if in the opinion of the judge, who tries the action, such cattle got at large without any negligent or wilful act or omission of the owner or his agent, or of the custodian of such cattle or his agent, and got upon the railway by reason of fences, gates and cattle-guards not being erected and maintained by the company as required by this Act.
I move this as an amendment which has commended itself to my mind after giving the subject a good deal of consideration and with every desire to go as far as I think parliament can properly go in meeting the wishes and demands of the people who are interested in this question. I am well aware that the feeling is extremely strong, more particularly in sections of the province of Ontario. It seems to me further that the question is one of a character that might fairly be regarded as an open question in the House and as one upon which hon. members on both sides might very fairly vote according to their judgment with regard to the consideration that the Bill in which this section is being embodied Is a government Bill. I would think, that, probably, under existing circumstances, having regard to the differences of opinion and to the different judgments, because men will differ upon the same facts, of hon. members, it would be fair to all parties that they should vote lipj*n the different principles that are sub-rnitted in regard to this Bill ns open questions. My objection to the motion which the

lion, member for North Essex (Mr. Sutherland) has moved is that I think it imposes too great a responsibility upon the railway company when it insists that the railway company shall establish negligence on the part of the owner of the cattle. We had a case which was dealt with yesterday in which we placed the onus upon the railway company of showing that where fire occurred the equipment of the locomotive was such as was required by law and that the fire had been caused through no defect in the apparatus used for the purpose of preventing fires. We imposed that obligation upon the railway company of rebutting and showing that it was not guilty of negligence. In a case like the present one, dealing with all interests and all parties fairly, it appears to me that it is unjust to ask that the railway company shall give evidence or actual proof that the farmer was guilty of negligence in allowing his cattle to run unattended when it must be physically and morally and actually impossible that the railway company can have any knowledge upon the question. The owner of the cattle, or the persons in charge of the cattle, are the only persons who can know whether or not they have been negligent and it is easy for them to show that they have not been negligent and in showing that they .have not been negligent they will he entitled to recover. Under the other clause they might recover although they had been negligent and although they were not in justice entitled to recover, because the railway company might fail to establish the actual facts.


Edward Arthur Lancaster: I am surprised a little that the hon. gentleman for North Essex (Mr. Sutherland) so poorly bears out the statement of the hon. Minister of Railways and Canals that we heard last night to the effect that hon. gentlemen on this side of the House have not assisted in improving this Bill, but, that hon. gentlemen on Ids own side of the House by going to him privately had been able to do a great deal in assisting him to amend this Bill. At the time the hon. gentleman made that statement it struck me that if it had not been for the opposition very few amendments would have been made to this Bill in favour of the people. All the amendments which have been made to this Bill in favour of the people have emanated from this side of the House. When the hon. minister said that amendments had been made at the suggestion of hon. gentlemen opposite it struck me that he must have been referring to- amendments in favour of the railways, and I think the hon. member for North Essex has proved 1 was right about that, because, notwithstanding the assertion of the hon. Minister of Railways and Canals yesterday and notwithstanding the assertion of the hon. member for North Essex, we find that the hon. member for North Essex lias to come here to-night and invoke the aid of members of Hon. Mr. BLAIR.
the opposition in order to compel the hon. Minister of Railways and Canals to do what a humble member of the opposition for three sessions lias been trying to compel him to do. The member for North Essex (Mr. Sutherland) knew that unless lie got the assistance of the opposition in this House who are sincere in the matter, he could not prevail on the Minister of Railways and Canals to make the amendment. I may say at the outset that I will support the amendment.


Some hon. MEMBERS: Hear, hear.


Edward Arthur Lancaster: I do not believe in treating these gentlemen opposite in the same spirit as they have treated me. For three sessions I have urged this matter on the attention of parliament, but I have obtained no support from the minister or from the member for North Essex. I hope that the next time the hon. minister and the hon. member (Mr. Sutherland) believe in the justice of a proposition which emanates from this side of the House, they will not wait for three long years to do what is right in the interest of the farmers of this country. Now, I am generous enough to congratulate the member for North Essex for coming to our relief, if he wants to put it that way, and assisting us to put into force a law which the majority on this side of the House have been urging for the last three years. Let me tell the hon. gentleman that there is not a particle of difference in the legal effect of the amendment which he has introduced and the one which I have been introducing for the last three sessions. The hon. gentleman (Mr. Sutherland) knows that full well, but I want to bring another matter to the attention of the Minister of Railways and Canals and of the House, which requires amendment, and I think all will agree that it is a thing which does require amendment. Let me first tell the hon. member for North Essex that he need not have been afraid, when he refused to let me say a few words, he having the floor, he need not have heen afraid that I was going to steal his thunder. I had not the remotest idea of moving an amendment different to his when I rose in my place and I had no idea of depriving him of the kudos of moving his amendment. I am not looking for that kind of cheap glory that some members on the other side of the House may be looking for, and may think I am looking for. Since I was elected to serve the people of the electoral district of Lincoln and Niagara I have endeavoured to do my duty an'd it matters not to me from what source legislation may come, if it be in the interest of the people I shall support it. I have no doubt that if I had moved an amendment exactly the same as he has moved he would feel it his duty to his party to oppose it acting on his record, but I am not made of that kind of stuff and therefore I will be glad that we on tills side of the House have been

able to convince the minister and his supporters that this long standing grievance of the farmers ought be remedied now. But the bon. member for North Essex has not provided an effectual cure, and it will therefore be necessary to move an amendment in regard to section 237. When the proper time comes I shall move to strike out the words ' or straying upon the railway ' in the last line of that section. The hon. member for North Essex in his hurry to prepare his amendment has not looked' into the whole law carefully. If he paid one-tenth as much attention to this matter as some members on this side have, he would have discovered for himself if the Minister of Railways did not tell him, that there are a few words in section 237 which seriously interfere with the good effect of his amendment. The Minister of Railways and Canals promised to remedy the grievances of the farmers in this respect last session, but he kept that pledge the same as he and his government have been keeping other pledges since 189G. He puts in section 237 a provision that a farmer must have sufficient help to keep the animals from straying on the railway tracks, and now, in view of this amendment he tries to make the farmer be a cattle-guard himself. When he first introduced this Bill into the House instead of remedying the grievances of the farmers, you will be surprised to hear that he not only compelled the farmer to have control of the animals at the point of intersection and to see them safely across the track, but he added the words that the farmer shall have sufficient help to prevent the animals from straying upon the railway. Now, this is an additional burden on the farmers. What are the cattle-guards there for if not to stop the animals from straying on the railway. I am bound to tell the hon. member for North Essex that in order to make this legislation workable he must help me to strike out these words ' from straying upon the railway ' so that the Act will not be inconsistent, and so that judges may not disagree as to what these two sections mean when you take them together. We must have some language in this Act which will be understood by the farmers and which they will not have to get lawyers to construe for them. The hon. member for North Essex has not been able to see that this section has to be amended in order to make his amendment workable. Because of the want of his eye-glasses or for some other reason he has overlooked the fact that these words still remain in the Bill, placing an additional burden on the farmer and compelling him to have enough people at the point of intersection to prevent the animals from straying on the railway, notwithstanding that cattle-guards are there for that purpose. We have had already three amendments proposed by the Minister of Railways and Canals trying to get this cattle-guard legislation in proper shape, and at last, after deep consultation between the farmers from North Essex and .the Minister of Railways and Canals we have this fourth drawn section which I am glad to say is the best of the lot, and which I think will be supported on this side of the House. What the Minister of Railways and Canals has done up to date is to endeavour to impose additional burdens upon the farmers instead of remedying their acknowledged grievances, but now he seems to be on the right track and for my part I am disposed to help him out and to make his ideas workable. In the first place I want the Minister of Railways and Canals to tell us why he added these words ' or straying upon the railway.' Why does he come to this House and state that he is giving cattle-guards that will be suitable and sufficient and at the same time provide that the farmer who heretofore had to prevent the animals from loitering at the point of intersection, has now to prevent them from straying upon the railway while the cattle-guards are there to prevent them from straying, if the law he is introducing is of any good ? I could understand it if the hon. minister has been assisted by the railway lawyers in drawing this section; because they want a conflict of sections. The railway companies are interested in having laws passed which are not easy to understand, and about which the courts will disagree. The farmer cannot afford to go to law with the railway companies on doubtful matters if he expects to have any part of his farm left. The railway companies like to have laws which are doubtful in meaning, which will result in lawsuits, and the Minister of Railways and Canals has added clauses here which will make this law inconsistent with itself, so that if a farmer goes to court and sues the railway company for the loss of an animal as a result of the absence of these cattle-guards, the judge will be obliged to say to the plaintiff's counsel, it is a grave question whether you or the railway company is most to blame, because at the same session and in the same Railway Bill that is supposed to give the remedy, an amendment has been inserted at the instance of the Minister of Railways and Canals which makes the remedy doubtful.


Mahlon K. Cowan: I understand that the hon. gentleman argues that the amendment of the hon. member for North Essex is a little inconsistent with section 237 ?


Edward Arthur Lancaster: The hon. member for North Essex has moved as an amendment a separate clause, and the clause before this House contains these words, ' or straying on the railway ' which were not in the law until this session, but which are now being put in by the Minister of Railways.


Mahlon K. Cowan: I do not just understand wherein the Inconsistency lies, from listening to the hon. member.


The MINISTER OF RAILWAYS AND CANALS.: He has not got to that point yet.

622S


Edward Arthur Lancaster: That means that the Minister of Railways does not understand it either. And as the hon. member for South Essex is so very fond of interrupting every body, if he still says lie cannot understand me, I cannot help it; the fault must be with his own intelligence. I think every body else in the House who is not biased on this matter understands what I mean. I think there are laymen in the House who understand me perhaps better than the lawyer from South Essex. I am satisfied that the Minister of Railways knows what i mean, and that he must have had some reason for putting in these words ' or straying on the railway.' They never were there until this year.


Mahlon K. Cowan: I am not rising for the purpose of interrupting. I just wish to ask a question.


Edward Arthur Lancaster: I think the hon. member is rising just to bother me. If he wants to ask me any question, I am willing to be cross-examined, if it will do him any good.


Mahlon K. Cowan: I do not want to crossexamine. I simply rise because I do not grasp the point the hon. gentleman is making. I would be glad if he would make it clear wherein there is inconsistency between the amendment moved by the hon. member for North Essex and section 237 ?


Edward Arthur Lancaster: If the hon. member will listen, I will endeavour to tell him ; but if he insists on talking to himself and jumping up like a jack-in-the-box, I do not suppose I can make him understand it. The hon. member for North Essex lias introduced an amendment which puts a liability on the railway to pay for the animal notwithstanding that no human being was in control of it, if it gets on the track and is killed by the railway. The section, as the Minister of Railways has amended it-and this is a new law, added by the Minister of Railways this year-provides that the farmer must not only have enough competent people to prevent the animal loiteriug at the point of intersection, but even from straying on the railway. If the hon. member for South Essex was a judge, who would he say was entitled to recover under these circumstances ?


Mahlon K. Cowan: The hon. member for Lincoln has asked me a question. What I would like to do is to read the few last lines of the amendment of the hon. member for North Essex
But the fact that such animal was not in charge of some competent person or persons, shall not. for the purpose of this subsection, deprive the owner of his right to recover.


Edward Arthur Lancaster: The hon. member for South Essex asked me wherein the amendment of the hon. member for North Essex was inconsistent with section 237. The Min-Hon. Mr. BLAIR.
ister of Railways has added words which require that the farmer must not only have sufficient help to prevent the animals loitering at the point of intersection, but even from going on the railway, which is the very thing the cattle-guards are intended to stop. So that if you have accidents, which both the hon. member for North Essex and I are trying to prevent, unless you strike out these words ' or straying on the railway,' you are making a nonsensical law which can be read one minute in favour of the farmer and the next minute in favour of the railway company. Both parties will be in fault, both will have contributed, and the complainant Will not be able to recover. The farmer will have to be the complainant. He cannot stop the train from running and make the railway company sue. The train keeps on killing the cattle and the farmer is to blame if he did not have sufficient help to stop the animal from going on the railway, and the railway is to blame for not having cattle-guards. We must be sensible, and I am glad that the hon. member for North Essex (Mr. Sutherland) is at last in the frame of mind to accept sensible legislation, and I submit to him my amendment, hoping that he will accept it in the spirit in which I accepted his, and let the farmers have their grievances remedied, no matter Who gets the credit.


Robert Franklin Sutherland: The hon. member for Lincoln (Mr. Lancaster) seems desirous to pick a quarrel with me because I would not make way for him after I had risen to move my amendment. Are we to understand that every time an hon. gentleman on this side or the other happens to rise to make a motion or to speak to some motion before the Chair, he must make way for the hon. member for Lincoln, if that hon. gentleman desires to speak ? This is the third time to-night that he has expressed his displeasure because he was not given precedence when he desired to address the House.


Edward Arthur Lancaster: Talk to the hon. member for South Essex (Mr. Cowan).


Robert Franklin Sutherland: I am addressing the hon. member who has just spoken, and I wish him to understand that when I rise and have the floor, I do not propose to give way even to so important a personage as the hon. member for Lincoln. I do not propose to allow myself to be sidetracked by him and resume my seat to suit his pleasure or convenience. In his desire to pose as a friend of the farmer, the hon. gentleman said that no amendment to this Bill had emanated from this side at all. Why, within the last couple of hours, one of the most important, perhaps the most important, that has yet come up was the amendment moved by my hon. friend from South Essex (Mr. Cowan).


Edward Arthur Lancaster: I said before tonight.


Robert Franklin Sutherland: The hon. gentleman is mistaken. He did not say before to-night, and ' Hansard ' will bear me out.


Edward Arthur Lancaster: I certainly intended to say so, and 1 maintain that I did say so.


Robert Franklin Sutherland: The great difficulty with the hon. member for Lincoln is this, that when he addresses the House he effervesces to such an extent that he scarcely knows what he is talking about. He undertook to say that I had suddenly discovered an interest in this Bill. Well, no one knows better than the hon. gentleman that last year I was watcUng this Bill very carefully and moved an amendment in the Railway Committee along the same lines as that which I moved to-night. Last year also I moved this amendment to his own measure :	^ Unless in the opinion of
the court or jury, the owner of such animals shall have been guilty of negligence, but no presumption of negligence shall arise by reason of the animal being unattended on the highway.' If the hon. member for Lincoln had received that amendment in the spirit in which he should have received it, we would have had that substantial measure of improvement made last year to the law, but he would not accept it. He was so anxious to get the measure through in the shape he wished that he would not accept any reasonable suggestion. I have been watching this Bill as closely as the hon. gentleman, and the fact that I moved a resolution last year similar to the one I have moved to-night is proof of this.


Edward Arthur Lancaster: Does the hon. gentleman say that he moved that in the Railway Committee last year ?


Robert Franklin Sutherland: That is what I said.


Edward Arthur Lancaster: Was it voted on ?


Robert Franklin Sutherland: It was.


Edward Arthur Lancaster: I think the hon. gentleman is mistaken.


Robert Franklin Sutherland: My hon. friend is again wrong. My hon. friend from Cornwall (Mr. Pringle) whom I see in the House will remember that after he moved this amendment :	' Without any negligence or default on the part of the owner or person to whose care or keeping such animal has been entrusted.' I moved the amendment I have just read, and it was disposed of by the Railway Committee. The hon. gentleman further insinuated that I am a railway or corporation lawyer and am attempting to deal with this matter from that standpoint. Well, Mr. Chairman, I am satisfied that no corporation or railway will be very well pleased with my amendment, and it is quite as stringent as the amendment he has suggested and perhaps more so. But apparently the hon. gentleman-for the reason I gave a few minutes
ago, namely, that he gets too heated and excited-is unable to appreciate the force of the amendment I have suggested. It is perfectly clear that the latter part of the amendment quite obviates the difficulty Which the hon. gentleman sees in section 1 of this section which I am proposing to amend.


Edward Arthur Lancaster: Will the hon. gentleman tell us whether he thinks that these words ' or straying upon a railway ' ought to be in subsection 1 ?


Robert Franklin Sutherland: I think they are quite covered by my amendment.


Edward Arthur Lancaster: Do they strengthen the hon. gentleman's amendment or weaken it ?


Robert Franklin Sutherland: I do not think they affect it one way or the other.


Edward Arthur Lancaster: The fact that the farmer himself now is bound to prevent the animals straying upon the railway does not affect the hon. gentleman's amendment ?


Robert Franklin Sutherland: No. What I am providing is that the fact that the animals are not attended shall not take away the right of action from the farmer.


Edward Arthur Lancaster: Will the hon. gentleman tell us whether he does not think that the very object he seeks to gain by his amendment would be better served by striking out those words ? Why should the farmer not only be bound to prevent the animals loitering at the point of intersection, but also prevent them from straying on the railway track ?


Robert Franklin Sutherland: I am not dealing with that section in that sense at all. Whether that section stands with or without those words, the amendment I propose will cover it, and the hon. gentleman knows that to be the fact.


Edward Arthur Lancaster: I know the very opposite might be argued.


Mahlon K. Cowan: As the hon. gentleman has favoured me with some choice flowers from his rhetorical conservatory, such as describing me as a Jack-in-the-box, besides showering on me like complimentary epithets, I shall try and enlighten him to a certain extent upon some matters in connection with this section which, I am sorry to say, the hon. member for Lincoln apparently does not understand. The section is one which I venture to say every hon. member of this House who has listened to the hon. member is convinced he does not understand. Before proceeding further, however, I wish to assure the hon. member for Lincoln that I entirely absolve him from any responsibility for my lack of comprehension to which he has referred. If he has brains to understand, he certainly has not given any evidence of it. Judging by his attempted argu-1 ment, he is not over blessed with that com-

rnodity, and I will go a step further and tell him that his ability to transmit what may be in his own mind to the minds of others has not been displayed at any time to any considerable extent. I therefore quite absolve the hon. member from any responsibility for the so-called arguments which he attempted to make and any lack of comprehension to which he has referred. Now, it seems to me that that subsection 1 of section 237 is quite clear. For the benefit of those members of the committee who have not the Railway Bill before them, I will read it:
No horses, sheep, swine or other cattle shall be permitted to be at large on any highway within half a mile of the intersection of such
highway with any railway at rail level-
-this is the old law, and a very proper one, for cattle have no business to be on the highway within half a mile of the highway, unless they are in charge of some competent person, or unless without the negligence of the owner they chance to be there

-unless such cattle are in charge of some competent person or persons, to prevent their loitering or stopping on such highway at such intersection, or straying upon the railway.
Now, the whole principle of the railway law is that cattle shall not be within half a mile of the railway unless they are in charge of some competent person. But there is an exception, and that exception is when without negligence and without fault of the owner of these cattle they are at large upon the highway within half a mile of the railway. In that event, there is no liability on the part of the railway. The hon. member for North Essex, following out this year the principles he enunciated last year, and which, I can tell the hon. member for Lincoln the hon. member for North Essex has enunciated and followed ever since he became a respected member of this House, moved this amendment and put in the express exception in order to meet just such cases as the hon. member for Lincoln's imagination led him to believe might arise. And that was, as I read it before-this is subsection 1 of section 237-but the fact that such cattle or other animals are not in charge of some competent person or persons shall not deprive the owner of his right of recovery. That is as plain as the English language can make it.


Edward Arthur Lancaster: We all know that. Mr. COWAN. I am glad you know it.


Edward Arthur Lancaster: I knew it before the hon. gentleman (Mr. Cowan) did.


Mahlon K. Cowan: If you had only let me tell you when you were on your feet, you would have known it now.
Mr. LANCASTER, I knew it twenty years ago.


Mahlon K. Cowan: I should have thought that the knowledge that the hon. gentleman has carried about with him for twenty years Mr. COWAN.	'	'
might have leaked out of him when he was trying to bestow some of his wisdom upon this House to-night. Now, this is the hon. member who says he knew this twenty years ago who now rises and says it is not true-


Edward Arthur Lancaster: No, I did not.


Mahlon K. Cowan: You may not have intended it, and I was surprised when you did it-but you did it.


Some hon. MEMBERS: Address the Chair.


Mahlon K. Cowan: I beg the Chairman's pardon.	t


Peter Macdonald: It will take a certain sting out of the discussion if hon. members, when speaking, address the Chair.


Mahlon K. Cowan: I most humbly apologize, Mr. Chairman. I do not always follow the hon. member for Lincoln-in fact I rarely do-but under the influence of his example there are some bad habits which I naturally fall into. If the hon. member for Lincoln knew this twenty years ago, why not adopt it ? Why was it necessary for him to spend half an hour heaping abuse, or trying to heap abuse, upon the hon. member for North Essex, using the words as ' cheap glory ' in referring to the hon. gentleman's motives, simply because the hon. member for North Essex moved an amendment which the hon. member for Lincoln himself accepts, which he says is a fit and proper amendment. Yet, having accepted it, he says that the man who proposes it is simply trying to get cheap glory, leaving it to be inferred that he, the hon. member for Lincoln is the great hero struggling for the rights of the people. But, he says, any man who brings forward anything with which I agree, is a cheap glory man, but I am the man who is trying to secure the rights of the people. I want to say to the hon. member for Lincoln-and I say it in all kindness, because we are the best of friends personally-that it is an exceedingly bad habit he has got into of thinking that no other man ever heard of a railroad case, and that he is the encyclopaedia of railroad law. And I want to tell him that the longer he talks the more completely he dispels that impression.


Thomas Simpson Sproule: I cannot agree with this proposed amendment, because I think it leaves the law still very defective. I have always taken the ground that it is an improper provision in the law which compels the farmer to keep his cattle within an enclosure if they happen to be within half a mile of the railway. I come from a section of the country that, until of recent years was comparatively a wilderness and where most of the cattle were grazed in the bush. When a farmer owns a hundred acres of land for which he paid and which happens to be unenclosed, it seems most unjust to deprive

him of the right of pasturing his cattle on that property because the railway happens to be within half a mile. When, the amendment was made to the law before, I believed it wrong, and I believe so still. Let me refer to a portion of Ontario where the land is not all agricultural land. I speak of Mani-toulin Island. Many years ago, the government of the province of Ontario sent men furnished with grass and clover seed to seed down that Island. This was done that the land might furnish grazing ground for the farmers. Perhaps eight-tenths of the land of that island can never be cultivatable. There are one or two charters in existence giving parties the right to build railways across that island. Suppose these railways are built, what are the farmers to do ? This land is not enclosed, but is rough, rocky land, good pasture because it has been seeded down, but not cultivable. Are the farmers to be deprived of the advantage of pasturing their cattle there because a railway company happens to build a railway across the island ? I say that would be unreasonable. This clause, if it is pasesd, will unduly deprive the farmers of Manitoulin of the right they now enjoy. Again, in New Ontario, where railways are being pushed for colonization purposes, you will find a thousand acres unfenced for every acre fenced. The farmers who go there as pioneers are taking in cattle in large numbers, and these cattle will be grazing in the bush year after year until the land is cleared and fenced in. Perhaps, for twenty years that will be the case. But, as soon as a railway extends into that new section, the farmers will be in danger of having their cattle impounded if they use for pasture the land they have purchased from the government and for which they have paid. Then I come to the North-west. Passing through there last fall I found that cattle in thousands and tens of thousands were being pastured upon the prairie. Every farmer who allowed his cattle to run there was violating the law. These men have taken up their homesteads, in some instances have bought their pre-emptions, but on account of this provision in the law they are not able to enjoy their property. I say the onus should be put upon the railway company and not upon the farmers. So far as this amendment changes the old law, it does not meet the requirements of the case. To that extent the law will still be defective unless It is amended so as to provide that the railway company shall fence their line, and that the farmer shall have the right to allow his cattle to run at large on the highway or on his own property, or on lands that are not tit for cultivation.


Mr. DOUGLAS.: Would it be a breach of this law for a farmer in the North-west to let his cattle run on the prairies ?


Thomas Simpson Sproule: It would be, if they were within half a mile of the railway.


James Moffat Douglas: Does the hon. gentleman know that we have a special law in the North-west Territories ?


Thomas Simpson Sproule: Your herd law makes no difference, it only provides for herding cattle. But there are not perhaps ten per cent of the farmers going into that new country who have any enclosure for their cattle.
Mr. DOUGLASi The hon. gentleman does not understand the law in the North-west. That law provides that when cattle appear upon the track, either by night or by day, the railway engineers have to slow their train or blow the whistle, whether there is any person in charge of the cattle or not, and if the railway destroys the cattle it has to pay the damages.


Thomas Simpson Sproule: Suppose they do both, tind cattle are killed, does the hon. member not think that the farmer who allowed his cattle to graze upon the highway within half a mile of the railroad, is violating this section ?


James Moffat Douglas: It must be remembered that there is no highway in the case, the farmer lias not got the highway, so the argument of the hon. member is wholly inapplicable. The farmer does not buy the highway, if he allows his cattle to stray on the highway and feed upon it, we are not doing an injury to the farmer if we ask him to keep them off half a mile from the railroad.


Thomas Simpson Sproule: The hon. member says they have no highway in that country.


James Moffat Douglas: No, they have highways, and where there are highways this law is applicable. The hon. member referred to the Manitoulin Islands, a rocky country that cannot be fenced. He may take us all over the Dominion, but it is not possible to frame a law that will apply to every kind of country and protect the interests of the farmer. If these people cannot fence their land they are in the same position as the people in the Territories, and we cannot hope to frame a law that will be applicable to every foot of the prairie country. I see no objection to the application of the law


Thomas Simpson Sproule: If the hon. gentleman is through asking a question-I think I have the floor. I want to say to the hon. member that I have conversed with many farmers in his own country, and they hold exactly the same opinion with regard to this as I do, they believe that they are unfairly ciealt with on account of this law, that they are restricted in their rights. In the province of Ontario to-day, over four-fiftlis of its area, the farmer under this law cannot. enjoy the rights to which he is fairly entitled. There is only a small portion of Ontario to-day that is old-eettled and well fenced, and wherever highways exist within

half a mile of a railway, if a farmer allows Uis cattle to be at large on that highway and they stray off, his cattle are liable to be impounded under this law.


Haughton Lennox: It must be gratifying to members on both sides of the House that we have now come to a conclusion upon what is probably the most difficult point to	deal	with	in connection	with	thisBill. I appreciate the way the Minister of Railways and Canals put it when he	said	that	we need not	have	any
cleavage witli regard to party in this matter. I think we can all feel pleased that we have come to a pretty good understanding. Now the hon. member for Lincoln (Mr. Lancaster), who initiated the agitation with regard to this matter in this House, and who has done more than any one else to keep it prominently before the public, I feel inclined to accept his suggestion, being satisfied he has given a great deal of consideration to the case, and in consequence I feel inclined to accept the amendment proposed by the bon. member for Essex .(Mr. Sutherland). I understand that substantially it embodies the idea which the member for Lincoln has been advocating during three sessions. Recognizing his leadership, and I am proud to he under his leadership in this matter, I am inclined to accept his suggestions. I acknowledge also that the Minister of Railways and Canals has bestowed a large amount of care and attention -upon this Bill, although in some cases he does not appear to have had as complete a grasp of the situation as we could wish. Although the member for Lincoln has been for three years endeavouring to remedy this evil, the member for Essex has to-night brought in an amendment which I think meets the case. It does not matter who it is that voices the principle, who it is that frames the words, so long as they secure the object we have in view. We are all in exceedingly good humour, and I have to congratulate the hon. member for Lincoln upon his complete success to-night. I want to congratulate the farmers of this country too, upon the fact that through the able leadership of the hon. member for Lincoln, supported indefatigably by hon. members on this side of the House, they to-night, have the satisfaction of knowing that after the long and arduous struggle, not always supported by hon. gentlemen opposite, we have succeeded- in bringing about a reasonable measure of redress. There are matters, which I tliink, being in a good frame of mind now. we might reasonably accept as compromises. I suggest to the hon. Minister of Railways and Canals that he might accept now without further discussion tlie amendment as proposed by the hon. member for Lincoln ; that is to strike out the words ' or straying upon the railway.' I submit that these words will not be necessary to the section and that they Mr. SPROULE.
are to some extent inconsistent with the phraseology of the amendment proposed and in this .way we will probably get over a difficulty. I wish to say, in harmony with what the hon. member for East Grey (Mr. Sproule) says, that, whilst 1 am prepared in deference to the suggestion of the hon. member for Lincoln to accept this amendment, I am not at all prepared to give it as my opinion that this will be found in the end to lie completely satisfactory. I accept it as a measure of redress to which the farmers are entitled, and I believe it will be an improvement upon the law, but, I do not believe, looking at it hurridly, that it will be a complete remedy, but as a measure of that relief to which the farming community are entitled I am prepared to accept it. I might just say, without pressing the yiew at all upon the hon. member for Essex, that I do not quite see the meaning of the words ' or otherwise ' where they occur in this way : Whenever any cattle at large upon I do not quite see the meaning of the words would refer to the case of cattle being in some place other than the highway.


The MINISTER OF RAILWAYS AND CANALS.: If they strayed upon the company's property.
' Mr. LENNOX. There are those cases where they are in a pasture field and they stray from one field to another, and then get upon the railway property. Does the hbn. minister propose to cover eases of that kind V


Fletcher Bath Wade: I feel like placing myself on record on this amendment. I think the amendment proposed by the hon. minister is amply sufficient to meet all the rights and interests of the farmers. It is carefully drawn, and I think it places a proper burden upon the railway company and gives proper relief for the farmer. It leaves the burden of proof upon the farmer that he has not been negligent in taking care of his cattle. I think that burden of proof should be on him, because the knowledge is within him alone. It was upon the same principle that we placed the burden of proof upon the railway companies Of showing that they had proper fire screens in their smokestacks and that the screens had not been punched out. We put the burden of proof upon them because the knowledge of the matter is within the railway company. There is one feature of the amendment proposed by the hon. member for North Essex (Mr. Sutherland) which I object to, and it is the feature which puts the burden of proof upon the railway, because it would be almost impossible, in many cases, for the railroad company to become possessed of the facts. Now, it does seem to me that lion, gentlemen upon- both sides of the House, in their zeal to protect the interests of the farmers, which is most commendable, have forgotten a very important class of

people, and those are the employees of the railway companies and the travelling public. I think it Is proper legislation to put upon each party, that is the farmer and the railway company, the strongest obligation possible that they will keep their cattle and their trains from coming into contact, because, there is damage not only to the cattle of the farmer and damage not only to the rolling stock of the company, but there is danger to the lives and property of the public and servants of the railway company. Therefore, if we leave the burden upon the farmer of seeing that his cattle have not improperly strayed upon the land of the railway company, I think that is all that is required. As regards the amendment proposed by the hon. member for Lincoln (Mr. Lancaster) surely he will not undertake to convince us that the amendment moved by the hon. member for North Essex does not meet that case entirely and completely. I was glad to see that in one sense he was ready to adopt the amendment that was proposed by the bon. member for North Essex, but it does seem to me that when he tried to propose that little amendment which would have no effect whatever, he was not acting in accordance with his professions. There is only one question that I would desire now to ask the committee to consider earnestly as I deem it to be one of the greatest importance. That is, are we acting in the interests of the farmers when we relieve them from a reasonable care, and place the burden of proving that they have not been careful upon the shoulders of parties who may not be able to prove that at all, because the knowledge will be entirely within the farmer himself? If the farmer has not been negligent it is the easiest thing in the world for him to prove it. A short time ago I brought action against a railway company for a farmer for the destruction of a herd of cattle. He had not been negligent although his cattle had escaped upon the highway, and the court so found, and he recovered damages for his cattle. So he will always recover. But when you put it the other way, you are not only putting the railway company at a disadvantage, and I do not care so much about that, but you are putting the travelling public and the employees on the railway train also at a disadvantage.


Mr. MCCARTHY.: The hon. member for South Simcoe (Mr. Lennox) opened his remarks by saying that he was content to accept the statement or opinion of the hon. member for Lincoln (Mr. Lancaster) to the effect that this amendment was the same in effect and in its result the same as the proposed amendment of the hon. member for Lincoln. He also said that he was proud to be a follower of such a leader. It struck me then that he should have sung that good old hymn :
Lead kindly light,
Amid the encircling gloom, lead thou me on.


David Henderson: Go on and sing it all.
Mr. McCarthy. I will leave it to the hou. member for Halton (Mr. Henderson) to go on and sing it if he desires. The hon. gentleman managed to lead himself out of that encircling gloom, but he got into a maze and concluded his speech by stating that the amendment of the member for North Essex was the same as the hou. member for Lincoln's amendment, but at the same time it was defective, and he only accepted it on behalf of the farmers for what it was worth. It would occur to any reasonable person that the remarks of the hon. member for South Simcoe (Mr. Lennox) are inconsistent, for either this amendment is the same as the amendment of that hon. gentleman or it is not. I think it is not the same. I think it goes further. I think the amendment of the hon. member (Mr. Sutherland) gives greater advantages to the farmers, and it contains provisions which the Bill of the hon. member for Lincoln neglected to incorporate, and let it be remembered that when these amendments were suggested by the member for North Essex last year, the member for Lincoln refused to accept them. In view of that refusal the farmers of this country were delayed in receiving the relief which they will get by this amendment to-night.


Edward Arthur Lancaster: I contradict that. I cannot allow the hon. member to say in my presence that I refused to accept anything from the hon. member from North Essex; he never offered me any amendment
Mr. McCarthy. Well, I have heard the 'statement of the member for North Essex as to that, and I have heard the statement of the member for Lincoln, and I leave it to the judgment of this committee to say which is correct. In the meantime I maintain that I am right.
' Mr. LANCASTER. You ought to be ashamed of yourself.


Leighton Goldie McCarthy: The hon. member (Mr. Lancaster) is much disturbed to-night; he seems to have lost something; I hope he is not fretting about that ' cheap glory ' which he talks so much about. I think he might remain quiet. If he is entitled to the credit that the member for South Simcoe claimed for him, no one on this side of the House wants to deprive him of it. I say on the full responsibility of the position which I occupy, that had the hon. member (Mr. Lancaster) conducted himself in a different way when he was pressing this Bill in the House he would have met with much greater success. Let me cite as an example of his conduct what occurred in the Railway Committee this year. A resolution was moved by myself in that committee suggesting that the Bill of the hon. member (Mr. Lancaster) should not then be pressed, because as we were going to amend the Railway Act this session his Bill would be repealed and so it

would become abortive. The hon. member (Mr. Lancaster) poo-pooed that idea, and he said that we were simply humbugging the farmers and that this Railway Bill would not pass this session. I ventured to remark that I was quite prepared to accept the statement of the Minister of Railways and Canals that this legislation would be proceeded with and that the remedy for the grievances complained of would be supplied, but the member for Lincoln would not hear of such a thing.


Edward Arthur Lancaster: Was there a remedy in the Bill which was laid on the Table of the House by the Minister of Railways and Canals.
Mr. McCarthy. The hon. gentleman (Mr. Lancaster) is again getting excited. The Bill was then on the Table of the House and had been for months.


Edward Arthur Lancaster: Did it remedy the grievance; the grievance was not remedied until to-night ?


Leighton Goldie McCarthy: I hope the hon. gentleman (Mr. Lancaster) will display that ability which he lays claim to when he does not get excited. He knows that when we were discussing his Bill in the Railway Committee the Bill of the Minister of Railways and Canals was before the House.


Edward Arthur Lancaster: Did it contain a remedy for this grievance.


Leighton Goldie McCarthy: No, and it was then stated that it did not contain a remedy for the grievance, but it was promised that it Would contain that remedy. If I may be permitted to say so I take the credit to myself that I moved the first resolution that was placed upon record which recognized the grievance and declared that it should be remedied.


Edward Arthur Lancaster: Oh.


Leighton Goldie McCarthy: The hon. gentleman may laugh, but he knows it is a fact, and that resolution which was carried in the Railway Committee by a majority of some thirty is moved in this House to-night and is accepted by the member for Lincoln and is going to become law. I do not claim any undue amount of credit in respect to this matter, but I do say that when members on the other side state that no gentleman on this side have supported a remedy for this grievance, they are stating that which is absolutely untrue.


Some hon. MEMBERS: Hear, hear.


Leighton Goldie McCarthy: From the very first time that the farming community of this country demanded relief from this grievance we on this side of the House have proclaimed that we were prepared to promote and to support a remedy for that grievance. Last session the member for Lincoln (Mr. Lancaster) accepted the idea that a commis-Mr. McCarthy.
sion should be appointed and that was one cause of the delay.


Edward Arthur Lancaster: I did nothing of the kind.


Leighton Goldie McCarthy: I then stated in this House that if no other- arrangement could be made I was prepared to support the Bill of the hon. member (Mr. Lancaster) and notwithstanding- that we are sometimes told that the constituents which we represent have been betrayed. I am -proud to think to-night that the faith which we reposed in the Minister of Railways and Canals and tlie government has been amply vindicated, and to-night the grievances which it was promised would be relieved are relieved in the most ample and complete way by the submission of a measure which goes much farther in the interest of the farmers of Canada than any proposition which the member for Lincoln ever dreamt of placing before this House.


Some hon. MEMBERS: Hear, hear.


Some hon. MEMBERS: No.
Amendment of (Mr. Sutherland of Essex) agreed to.
Amendment of (Hon. Mr. Blair) negatived.


Edward Arthur Lancaster: There is an amendment of mine still before the chair.


The MINISTER OF RAILWAYS AND CANALS.: The hon. member (Mr. Lancaster) has asked again and again w-hy the words were inserted in 237 ' from straying on the railway.' He got quite excited over the propriety of my having inserted these words in this Bill. It is quite true that the words are not in the existing law, but the main proposition in the existing law is that Which requires that the animals shall be properly attended by competent persons. The fact that the words were added, that a competent person should be in charge so as to prevent the animals loitering on such highway or straying on the railway, only indicates what might happen if this competent attendance were not provided. The hon. gentleman said I put in these words because of the possibility of the animals straying on the railway owing to there being no cattle guards there. Well, there are two or three reasons why it might be well to indicate What the cattle should be prevented from doing. We know as a matter of fact that cattle-guards are not always placed on the railway. The protection of the public requires that that attendance should be there to prevent the cattle going on the railway, even if there is no cattle-guard. The interest involved is not only the interest of the farmer if his animal happens to get killed, or the interest of the railway company. The Interest of the public is in preventing the animals going on the railway so as to avoid injury to property and perhaps

loss of life. AA'e know that there are not always cattle-guards, and even if there are, we know also that these guards are not absolutely perfect in their operation, and do not provide absolute protection. In spite of the cattle-guards, animals are able to effect an entrance on the company's property, so that in any case it is well that the public should be notified that their business is to have proper attendance to look after the cattle when at the point of intersection, and that if they do not look after them, they may stray on the railway and be killed. Apart from all that, there would be no reason in asking that these words be struck out, because the section which I have moved, if carried, would fix the liability of the company, quite irrespective of whether the attendance were there or not, because that section provided that the railway company would be liable if the farmer had not been negligent. So that either with the amendment which the committee has adopted or with the amendment which I proposed before its adoption, the effect of these words or the language of this clause would not have the slightest bearing. I cannot therefore see any good reason why this amendment should be adopted. It is quite unnecessary, and I would object very strongly to it.


Jabel Robinson: Just one point, I think, has not been touched upon in regard to the amendment of the hon. member for Lincoln (Mr. Lancaster). I do not think the farmers themselves are anxious that their cattle should stray on the road. If they turn their cattle out improperly on the highway, and they stray on the railway and get killed, I do not think they should recover money from the railway company. But there are occasions, as everybody knows when cattle will break out of their pastures and get on to the highways, and if they do, is the farmer to have four or five men to look after them ? The farmer does not know that they are on the highway, and it would be impossible to prove that they got there through any negligence on his part. Farmers sometimes pasture their cattle a long distance from home, and the cattle, being anxious to get back home, will break through the best of fences. So that we want to provide that if they do get on the highway without the farmers' knowledge or consent, and are killed, he will have redress if there are no cattle-guards.	[DOT]


Haughton Lennox: The Minister of Railways has in effect told us that these words, ' or straying upon the highway ' are harmless, that they have very little effect except for the purpose of pointing out the condition of affairs, and that, having regard to the amendment which we have just adopted, they cannot do any harm.


The MINISTER OF RAILWAYS AND CANALS.: They would not do any harm anyway. They are only descriptive.


Haughton Lennox: I am of a different opinion. The section as it was before had a specific meaning, that was, that there was to be some competent person in charge of the cattle for the purpose of taking them across the railway at the point of intersection and preventing them loitering on the highway. That is the principle upon which we have worked for many years. It is the correct principle. It has nothing to do with the question of cattle-guards. AVe have defined within what limits the company shall be liable, and within what limits the proprietor shall have a right to recover; but if we leave these words in, we open the door to litigation, and the old difficulties will be repeated, it may be with this variation, that the proprietor will be more likely to win than he was in the past. AVhat this parliament should do now and for ever, if it possibly can, is to prevent this for ever-recurring litigation, and this uncertainty as to the rights of the people. If you leave these words in, the effect is this. You say to the railway company and to the public, on either hand, and although with one hand we extend protection to the farmers in the way of cattle-guards, with the other hand we bring in this clause, which means that it is not necessary for the railway company to have sufficient cattle-guards. That is in line with what the minister says. He says it may happen that the cattle-guards will not be sufficient. I say we have provided that the railway companies must have sufficient cattle-guards; that was the o'ld law and presumably the new law of to-night, and if you leave in the statute the words that are now there to prevent the cattle straying on the railway, you mean that they will stray there because there is nothing to prevent them, and you induce the railway company to set up the defence that notwithstanding the other provisions of the Act, there is no absolute liability on their part to have safe and sufficient cattle-guards at the point of intersection.


Thomas Walter Scott: AVill the hon. gentleman permit me to ask him a question ? Does he not think that it is possible to imagine on behalf of the railway company such a thing as excusable negligence. This is what we have provided for on behalf of the farmer. Is it not also possible in regard to the railway company in relation to cattle-guards.


Haughton Lennox: It is, but I fail to see what effect that has on my argument.


Thomas Walter Scott: I will point out. In a case of excusable negligence where the railway company did not have proper cattle-guards, these words ' or straying on the railway,' would be not only applicable, but very necessary.


Haughton Lennox: AA7hat I am endeavouring to point out is this, that if the other provision is to work out in the way I think it will, the railway company will be excused in the case where the court and jury think



they ought to be excused. What we are dealing with here is the provision that when cattle are being driven along the highway they shall be in charge of some person for the'purpose of preventing their stopping or loitering upon the railway crossings, and not for the purpose of excusing the railway companies for not having fences or cattle-guards. We will be renewing the old troubles if you enact this legislation in its present shape. I shall not urge this matter any further. I have discharged my duty and I am confident that my statements will be verified by the results. I have wai'ned the government, and I warn hon. gentlemen opposite as well. They have adopted tonight the principle which has been agitated during the last two sessions by hon. members on this side, and if it is not a case of stealing thunder from this side and merely wanting to make a show, they will have to face the music and vote for this amendment.


Mr. GERMAN.: In reply to the hon. gentleman, let me say that I do not want to steal his thunder, but I am going to vote against this amendment. I represent a county in which there are as many highway crossings by railways as in any county in the Dominion, and probably more. It is the centre of the Grand Trunk lines at the Niagara frontier, but I have ever held that I would not support any proposition which would allow farmers to let their cattle run at large on the public highway within a half mile of the railway track. I have continually opposed that. I opposed it when the Bill of the hon. member for Lincoln was before the committee. I there gave my reasons for believing that this Bill was wrong, and the same reasons still exist. In my opinion, the proposition of the hon. Minister of Railways and Canals to-night was a fairer one than the motion made by the hon. member for North Essex, which the committee saw fit to adopt. So far as the present amendment is concerned, it simply suggests that three words be stricken out of this clause. This would dispense with the necessity of having cattle in charge of a competent person to prevent their straying on to the railway track. But there must be, under the section, a competent person in charge of the cattle, when they are within half a mile of the railway, and even, under the amendment of the hon. member for North Essex (Mr. Sutherland), the farmer, whose cattle were not in charge of a competent person, and were destroyed at the intersection between a highway and a railway, cannot recover damage. If the cattle are in charge of a competent person, that person can without difficulty keep them off the right of way, and that is what he should do. If he does not, I do not think the farmer should get compensation. But, if cattle accidently get on the public highway and then stray on to the railway track, Mr. LENNOX.
because of insufficient cattle-guards, then the farmer should be compensated. That is the proposition I have always supported and support to-night, but I am strongly convinced that if cattle are on the highway, within half a mile of the junction of the highway with the railway, they should be iu charge of a competent individual who will prevent their straying on to the track.


Edward Arthur Lancaster: The hon. gentleman seems to urge that having a competent person in charge to prevent cattle loitering upon the intersection is the same tiling as having a competent person to prevent their straying on to the railroad track. It is an entirely different matter, and that is one of the points where the difficulty comes in. One small boy may be quite sufficient to prevent a herd of cattle from stopping or loitering on the intersection of a railway with a highway, where there are proper cattle-guards, but he would be .wholly incompetent to control them where there are 110 cattle-guards.


Samuel Barker: I am sorry that I must differ from hon. gentlemen on this side. This section has been on the statutes over fifty years. Some thirty-live years ago a county judge, in the county of Brant, I think, placed a construction upon it which has not been followed by any other judge in. Ontario since. Dozens of decisions are in the books upon the meaning of this section. As to the term ' person in charge ' the courts for years have held that the person must' be one competent to take care of cattle and prevent them from loitering. Therefore putting the word < competent ' in does not add anything to the law as construed by the courts, but simply expresses in plain English what the section means. As to the other words, about straying upon the railway property, it has been distinctly held over and over again that the section would have the same result without those words. Courts have held that a cow or horse which is loitering upon a railway crossing without being in charge of some one, is illegally there ; and if it then strays upon the railway track, the owner cannot recover. Therefore, the courts have held that the meaning of the original section is precisely as if the term ' competent person ' were in it and as if these words * straying on the railway' were there also.	[DOT]


Haughton Lennox: I must say, in reply to the hon. member for Hamilton, that he has misapprehended what I have been saying upon the question. 1 attach no significance to the word ' competent.' What I have endeavoured to point out is that to provide that persons must be in charge to prevent cattle from loitering upon a railway at its intersection with the highway, is an entirely different thing from providing that there 1 shall be such a force in charge as will pre-

vent them, where there Is an opening upon either side, from straying up and down the railway track. The hon. gentleman says that there are quite a number of decisions in the case of animals killed at the intersection.


Samuel Barker: No, I said that the same law applied where they strayed over the iriiiway track and were killed there.


Edward Arthur Lancaster: If the hon. gentleman had waited I would have said that too. I am quite prepared to accept what the hon. member for Hamilton (Mr. Barker) said with regard to the legal liability. But the reason I attach importance to these words- particularly bearing in mind the enactment we have so far adopted, and the probable result of these enactments-is that it means, if it means anything that these decisions will no longer prevail.
Amendment (Mr. Lancaster) negatived.
On section 197-fences, gates and cattle-guards.


Edward Arthur Lancaster: I wish to propose an amendment which I am not sure that hon. gentlemen on the other side have seen the minister about, as I have not heard any suggestion from the minister or any body else that the amendment was necessary. I think, however, in view of the decision rendered by the Supreme Court about a year and a half ago, hon. members will consider it that some such amendment as this is needed. The case is that of James vs. Grand Trunk Railway Company, arising in the county of Wentworth, in the township of Saltfleet. I do not know whether the minister's attention has been drawn to it, but, if he does not say that it has I will go on and explain. The result of that case is to put a very queer construction upon these sections of the law, a construction which, I am sure, parliament never intended. The courts of Ontario held unanimously on one side. His Lordship Judge Street tried the case, and the court of appeal of Ontario unanimously confirmed his decision, that the fences to be built between the railway and the adjoining property are boundary fences. The present Chief Justice of the Supreme Court, then Mr. Justice Tacli-ereau, concurred in the decision of the court of appeal. He said he could not see but that the reasons given by the court of appeal of Ontario were unassailable. But the other four judges of the Supreme Court thought differently, and put a very narrow construction upon the law, a construction not intended by parliament, I feel sure. Now the words of this section are the words of the old law


Peter Macdonald: Perhaps it would be better that I should place the hon. minister's proposed amendments before the committee. He proposes to strike out sections 197, 198 and 199 as printed in 196*
the Bill, and substitute therefor the following :
The company shall erect and maintain upon the railway, fences, gates and cattle-guards as follows :-Fences of a minimum height of four feet six inches on each side of the railway, and swing gates in such fences of the minimum height aforesaid, with proper hinges and fastenings, at farm crossings ; provided that sliding or hurdle gates already constructed may be maintained, but shall not hereafter be renewed ; cattle-guards on each side of the railway at every highway crossing at rail level of the rails. The railway fences at every such crossing shall be turned into the respective cattle-guards on each side of the highway.
2. Such fences, gates and cattle-guards shall be suitable and sufficient to prevent cattle and other animals from getting on the track.


Fletcher Bath Wade: If the boil, member (Mr. Lancaster) will permit me, I would like to ask the minister if he would accept an amendment which I will offer to that section by


Edward Arthur Lancaster: I suppose, Mr. Chairman, that we on this side of the House have some rights. I have an amendment before the Chair. And, as I have received but scant courtesy from hon. members opposite,
I think I had better do business according to my own lights and not according to their suggestions. I say that the decision of the Supreme Court puts a very narrow and unsatisfactory, and surprising construction-if I may be allowed, with all due deference to the Supreme Court to say so, and I suppose I have a right to use such language in this House-upon the law with regard to these fences.


The MINISTER OF RAILWAYS AND CANALS.: What words ?


Edward Arthur Lancaster: The words declaring what these fences are to be. I am moving amendments which will say what fences they are. It is my intention to move that section 197 be amended by striking out the words ' fences ' at the end of the third line, and inserting in lieu the words ' division line and boundary fences between the lands of the company and the adjoining owners ' and striking out the word ' railway ' in the line and boundary fences between the lands of the company.' I think that everybody expected the decision of the Supreme Court to be the same as that given unanimously by the judges of Ontario. The report of Judge Street is to be found in Ontario reports, volume 31, and that judgment was confirmed by the court of appeal in which Chief Justice Armour, justices Osier and Lister wrote judgments, and Justice Moss, the present chief justice agreeing but not writing any language of his own. The case that arose is this : What might have been used as a cattle-pass if so arranged, but was a water-course which was dry in summer, ran under the railway track. The railway company, instead of fencing across that and continuing their line fence between the ad-


The MINISTER OF RAILWAYS AND CANALS.: In the ease which the Supreme Court adjudicated upon and which the hon. gentleman has mentioned, the cattle strayed through and under one of the company's culverts and got around upon their right of way and on the track because there was no fence placed along the railway at that place. They left this open space in their fences through which the cattle strayed upon the property of other people and ultimately got upon the company's lands. Now it would be thought that under the law as it stands to-day the railway company were bound to fence along their line so that cattle could not get upon their track; that is the spirit and intention of the Act. This decision we have to accept as good law, but we have made ample provision in the present Bill for all that. The law now makes the company liable for all cattle lost that were straying from the adjoining land, whether they have got a fence ten feet high or not. Whether the fence is on the division line or not, the company has got to pay for cattle which get upon its right of way from adjoining lands. The reason of that is because we wanted to remove the possibility of any of these questions arising which have prevented owners of cattle from getting damages from the company because their cattle had strayed off on to other lands and from those other lands had got upon the railway. I say the company is bound to pay for cattle killed^or Injured upon the railway, where they have strayed off on adjoining lands.


Edward Arthur Lancaster: Where is the declaration that applies to adjoining owners ?


The MINISTER OF RAILWAYS AND CANALS.: The law provides that the fences must be suitable and sufficient to keep the cattle.


Edward Arthur Lancaster: The law provided that when this decision of the Supreme Court was given, but it is the kind of fences that was involved and where they should be, and the Supreme Court has decided that these fences need not be sufficient to keep the cattle from getting under the track but only sufficient to keep them from getting over it. Now, the declaration that they must have these fences was the same before the Supreme Court gave that decision.


The MINISTER OF RAILWAYS AND CANALS.: They never provided that in the previous law.


Edward Arthur Lancaster: The previous section had exactly the same words; of course there were other words in the section that are not applicable to this point. Section 194, the old statute, says :
Fences shall be erected and maintained on each side of the railway through each township, of the height and strength of an ordinary division fence.
The court said that these words ' fences ' of the height of an ordinary division fence ' with proper gates and fastenings, were not sufficient. Now the words * fences on each side of the railway,' were the words when the Supreme Court gave that decision, and the court has held that fences on each side of the railway do not protect the farmer from his animals getting under the track but only upon the surface.


Mr. RUSSELL.: In this amended Bill there are entirely different words used which would seem to exactly meet the point that has been decided.


Edward Arthur Lancaster: What section of the Bill 1


Benjamin Russell: Subsection 2 of section 197 says that the fences are to be suitable and sufficient to prevent cattle and other animals from getting on the railway.


Edward Arthur Lancaster: These words were in the old law.
Fences shall be erected and maintained on each sfde of the railway, through such township, of the height and strength of an ordinary division fence, with openings or gates or bars or sliding or hurdle gates of sufficient width for the purposes thereof, with proper fastenings at farm crossings of the railway, and also cattle-guards at all highway crossings suitable and sufficient to prevent cattle and other animals from getting on the railway.
The provision was virtually the same as we have It in the Bill :
Fences, of a minimum height of four feet six Inches, on each side of the railway, and swing, or sliding gates, therein, of the said minimum height, with proper fastenings, at farm crossings.
1 Mr. RUSSELL. I was looking at the old Act and I find that the language is hot the same as it is in the Bill which is. before the committee. If it had been, it
seems to me that would have been a surprising decision for the Supreme Court to give. If the statute had said that such fences and gates should be suitable and sufficient to prevent cattle from getting on the railway, and the fences were manifestly not suitable to prevent cattle from getting on the railway to say as the Supreme Court judgment according to the hon. gentleman did, that the company was not liable, seems to me to be perfectly absurd. I do not think the words 'suitable and sufficient to prevent cattle and other animals from getting on the railway ' are to be found in the old statute.


Edward Arthur Lancaster: The Supreme Court and the court of appeal both agree that the fences were to be sufficient to prevent the animals from getting on the railway track, but what the Supreme Court said was that they need not be sufficient to keep them off the other railway property.


Benjamin Russell: I do not wonder at the hon. gentleman being very much surprised at the judgment given.


Edward Arthur Lancaster: The hon. gentleman would be surprised if he read it.


The MINISTER OF RAILWAYS AND CANALS.: The hon. gentleman (Mr. Lancaster) has asked us to insert some additional words in this clause so as to prevent cattle from getting under the railway. What is the objection to allowing cattle to get under the railway ?


Edward Arthur Lancaster: That is what happened in the James case.


The MINISTER OF RAILWAYS AND CANALS.: Not at all; that would not necessarily follow.


Edward Arthur Lancaster: But it did follow.


The MINISTER OF RAILWAYS AND CANALS.: What reason would there be in saying that providing the railway has sufficient fences to keep cattle getting on the railway they must in addition to that have fences to prevent cattle from getting under the railway ?
: Mr. LANCASTER. I will tell the hon. gentleman what happened in the James case and it will happen in other cases unless the railway company makes provision against it. Mr. James owned land at one side of the railway and another man owned land on the other side of the railway.


The MINISTER OF RAILWAYS AND CANALS.: That does not make any difference.
: Mr. LANCASTER. It does make a difference to the man who loses his animals. The hon. minister does not care about that, but I do. Mr. James thought that the company were bound to fence against him. They did not fence the culvert. Water ran through in the spring, but in the summer it was

dry. The railway company chose to stop fencing when they got to the culvert and ran the fence in at half right angles to the culvert. The result was that Hr. James' animals got upon a neighbour's property, the neighbour did not keep the gate shut and they got upon the highway and got into trouble.


The MINISTER OF RAILWAYS AND CANALS.: When all the facts and circumstances are looked at there must have been some question about their straying on the property of the railway company and there must have been some question of contributory negligence on the part of the owner. When the law says that a railway company must fence so as to prevent cattle from getting upon the railway, if they do fence sufficiently and the cattle are prevented no damage can occur. If they do not do that and the cattle are killed upon the railway they are liable. Somebody has to take the responsibility of deciding whether the hon. gentleman is right or whether I am right. The hon. gentleman has stated his position and there is no occasion for him to repeat it over and over again.


Edward Arthur Lancaster: There is if the hon. minister does not understand me.


William Manley German: If the hon. minister will look at Mr. Justice Sedgewick's decision he will see that the hon. member for Lincoln is quite wrong. Mr. Justice Sedge-wick in his decision said:
The horses in question were admitted to be at large upon the highwaj within half a mile of its intersection with the line of railway. They were in charge of no one so as to prevent their loitering or stopping on the highway at the point of intersection. It was at that point they were killed and the owner has not therefore any right of action by reason of such killing.


Samuel Barker: I think both hon. gentlemen are right. My hon. friend from Lincoln (Mr. Lancaster) says quite correctly that the animals had escaped under the railway to a neighbour's farm, thence to the highway and thence upon the railway; so that, both provisions of the law came in. I would like to suggest to my hon. friend from Lincoln to consider what would be the effect upon a large number of farmers if the railway were fenced in the way he proposes. The hon. gentleman must know that there are many farmers who have the privilege of allowing their cattle to pass under the small culverts and bridges from one side of the railway to the other. This is of very great value indeed and if you compel the railway company to fence out all these places the balance of convenience would be vastly against a large number of farmers.


The MINISTER OF RAILWAYS AND CANALS.: How could a horse or a cow be billed if the railway erected proper fences to prevent cattle from getting upon their right of way ?


Edward Arthur Lancaster: 


Samuel Barker: If you compel the railway company to fence its gullies and valleys the farmer who has a valuable privilege in allowing his cattle to pass through will be deprived of that. There are a great many streams that the railway will have to fence and it is almost impossible to do that.


Haughton Lennox: Of course, as the hon. minister says, this is a matter for which he has taken responsibility and having directed his attention to it I will be satisfied to leave it at that. The point, I understand that is involved in the case that is referred to or that arises under this subsection is as to what the meaning of the words contained in this subsection is :
Such fences and gates shall be suitable and sufficient to prevent cattle and other animals from getting on the railway.
I do not pretend to be familiar with the case that has been cited, although I knew that it had been decided. A somewhat startling decision was given by the Supreme Court reversing the decision of the court of appeal. It is provided definitely enough that they must have sufficient fences to prevent cattle getting on the railway, and the only possible way in which the Supreme Court could come to a conclusion, that this is not a complete provision for a continuous fence along each side of the railway property, is that it speaks of the railway as distinct from the railway property. I happen to have been told the opinion of some of the judges of the Court of Appeal on that Supreme Court judgment, and that is the only way, as I understand it that, they can account for it. By the use of the word ' railway ' as distinguished from the words ' railway property ' it may be that the railway company was not under the old Act compelled to make a continuous fence from one end of their property to the other. The hon. member for Hamilton (Mr. Barker) always presents his views in a very moderate and well-considered way and there is no doubt much as to what he says in reference to the inconvenience that might in some instances arise. One case which I have in mind is this :	I have a property
on one side of the railway which is rented to a farmer and a Mr. Cook has a property on the other side. There is a large bridge with stone abutments and a stream of considerable size. The railway company does not continue their fence across this stream and the result is that the cattle of one farmer cross the stream and get on the farm of the other and there is constant difficulty between them. One of these farmers has been driving the cattle that improperly came upon his land on to the highway, and if the cattle wandered a quarter of a mile further and got on to the level crossing and are killed, the railway company woufd not be liable although the original cause of the cattle being on the highway was that they did not carry a continuous fence along their

property. Cases of this kind must necessarily arise and it would be well to have this matter dealt with.


The MINISTER OF RAILWAYS AND CANALS.: I could not do what the hon. gentleman suggests.


Haughton Lennox: I will not press it upon the minister unduly. I have no doubt that the minister has taken great care in the consideration of this matter, but I would submit to him that provision should be made for the case in the nature I have indicated. If the wording of the new Act is the same as the old, the judgment of the Supreme Court will continue to prevail until there is an appeal to the Privy Council; which might reverse it. An hon. gentleman on the other side (Mr. Russell) for whose opinion I have the very greatest respect says that the wording in this section is different from the wording of the old. I will not take time in arguing the point, but I may say, that while the grouping of thf clauses is different, I do not see any difference in the wording.


William Findlay Maclean: I happen to be interested in a property on which there are 350 yards of a viaduct and it is a very valuable privilege to have free access under this viaduct by reason of the fact that the railway has no fence on either side of this land.
1	know of half a dozen other instances where the same privilege now exists. The people own the property on both sides of the bed of the river and they go freely under the viaduct whereas if fences were there it would be a great inconvenience to them.


Fletcher Bath Wade: I would take the liberty of moving some slight amendments. I move to insert after the word ' cattle-guards ' in the fifth clause, the words ' approved of by the board,' and to strike out of subsection
2	the words * and cattle-guards.' My reason for asking for that is this, that as the section is now framed we are asking an impossibility of the company. It is perfectly proper to ask them to have a fence sufficient to keep the cattle off the road; but it has been demonstrated by a commission during the past year, what we all knew before, that it is impossible to get a cattle-guard which will keep the cattle off the road. Therefore I submit that it is unfair to put that section in, and I would ask the minister to accept this amendment. It seems to me that it is fair and reasonable.


Leighton Goldie McCarthy: The difficulty is that you have defined in another section what a fence is to be.


Fletcher Bath Wade: I propose to amend the clauses so as to say that the cattle-guards shall be approved by the board, and the fences and gates shall be sufficient to prevent cattle and other animals from gettiug on the railway.


William Manley German: In view of the amendment which we have passed already, I do
not think it is necessary to amend this section in the way proposed.


The MINISTER OF RAILWAYS AND CANALS.: I think the hon. gentleman has doubtless judged that the disposition of the committee is rather unfriendly to his motion.
Amendment of Mr. Wade negatived, and amendment of the Minister of Railways agreed to.


The MINISTER OF RAILWAYS AND CANALS.: I propose to strike out some words in the third division of section 197 with reference to gates. On still further consideration, I think it would be better to leave it to the commission to judge whether hinges or sliding gates are the proper kind of gates, and if they find that they are not, they have the power under the Bill to condemn them and to specify what other gates shall be used. I propose that the clause shall read :
Swing gates and such fences of the minimum height aforesaid, with proper fastenings, at farm crossings, provided that sliding or hurdle gates already constructed may he maintained but shall not hereafter be renewed If so ordered by the board.


Haughton Lennox: Will the minister make it read, ' unless ordered by the board,' so that the farmers will not have to come to Ottawa to get the permission of the board ?


The MINISTER OF RAILWAYS AND CANALS.: I think it is better as it is. It will let the existing conditions continue, unless the board orders otherwise. I have correspondence upon the subject from people who are decidedly opposed to doing away with the hurdle gates, and who say that they are very useful.


Samuel Barker: 
The MINISTER OF RAILWAYS AND CANALS.: That would require immediate action, if you had hurdle gates In order to continue them. If the merits are against their continued use, the board will determine not to allow them.
Mr. BARKER, What the hon. gentleman-would like is to put it upon the railway companies to obtain the permission and not upon the farmers to object. If a company wanted permission to renew the gates, they would have to apply to the board.


The MINISTER OF RAILWAYS AND CANALS.: That is the difference between the two propositions. I must confess to a decided preference for my method. These gates have been used for years and we are hearing now, for the first time of any complaint. Is it desirable that we should proceed upon the assumption that the objections are well taken ? I do not think they are, and we ought to allow the condition of

things to continue until the board has satisfied itself that it ought not to continue.
Section, as amended, agreed to.
On section 198,


The MINISTER OF RAILWAYS AND CANALS.: I move that the following be substituted for this section :
Whenever a railway passes through any locality in which the lands on either side are not improved by settlers and inclosed, the company shall not be required to erect and maintain such fences, gates and cattle-guards unless the board otherwise orders or directs.
That was the law before.


Haughton Lennox: By what section was it the law before ? The law was that where a township was opened up and set apart for settlement, the railways were bound to fence. According to this section, if you happen to strike a couple of vacant lots on either side of the railway, the company will not be bound to fence unless the board directs it.


Samuel Barker: How would it do to say ' district ' instead of ' locality,' and say ' on both sides.'


The MINISTER OF RAILWAYS AND CANALS.: The principle is this, and it is the law everywhere else if not in Ontario. If an owner of land has cleared his ground, he would naturally put up his fences and the company would have to fence in front and on their right of way. I cannot see any advantage in requiring a fence to be erected on the other side of the track, if there is no settlement and nothing but an unoccupied wilderness.


Samuel Barker: The cattle will be pasturing on both sides although the people are living only on one side.


Haughton Lennox: It is not a question of wilderness, but of a vacant lot on each side of the railway. In such a case the railway company shall not be bound to fence unless ordered by the board. Take this case. There is a property of say 200 acres, which has not been cleared or improved. It belongs to some one who does not reside in the neighbourhood. There is running across the further end of that lot a - public highway. On that public highway the cattle are allowed to run and they cannot approach within half a mile of the railway. They stray into that vacant property from the highway thence get on to the track and are killed, and the owner has no redress. This is another way of minimizing the benefits we are getting for the farmers through the fight we are putting up in their behalf. It is a most unfair proposal.


Thomas Simpson Sproule: You might go to Ontario, even the old settled parts, and you would find large sections of swamp lands where some of the lots are unoccupied. A farmer Hon. Mr. BLAIR.
could not allow his cattle out to graze on the highway or this unsettled land without the danger of having his cattle killed, and under this clause he would have no redress. In the newer settlements, every farmer turns his cattle out into the bush and they run at large, in any direction. If the company is not compelled to fence its property, they will be sure to get on to the track, and if injured, the owner has no recourse. This will be a great injustice to the farmer who is the pioneer of the country.


The MINISTER OF RAILWAYS AND CANALS.: I do not think that the case is serious at all. In sections of the country such as are described here, there are no fences, and you never hear of cattle being killed. They are not so apt to stray on to the railway tracks.


Thomas Simpson Sproule: I can tell the hon. minister that if he will allow forty-eight hours delay, I will get twenty-five or thirty cases from the county I represent where animals have been killed on the track under just such circumstances as would make it impossible, if this amendment passed for the owners to get a dollar. For instance, go into the township of Proton, in the countv of Grey or Amaranth or Melancthon, where the large swamps are, though it is an old settled country. The same danger would exist there in many places.


Haughton Lennox: There is not a township in the province of Ontario in which cases could not be found of this kind. I think that we should not, without good and sufficient cause, depart from the old form of the statute. The law was sufficiently favourable to the railway companies and afforded no more than enough protection to the people. There is no good reason advanced for the proposed change. I venture to say that the people, not only in Ontario, but of the whole Dominion, will be surprised when they learn to-morrow morning that such a proposition was made. If the hon. minister will allow this to stand for forty-eight hours, we can have petitions here from every part of Ontario against anv such legislation.
Amendment (Hon. Mr. Blair) agreed to. Yeas, 22 ; nays, 10.


Mr. BLAIN.: This Bill has been amended so many times-and I suppose it was necessary-that it is almost impossible to keep track of it. I would like to ask the hon. minister if there is any provision in it for the better protection of level crossings in towns, cities and villages.


The MINISTER OF RAILWAYS AND CANALS.: I do not know what the hon. gentleman means by ' better protection.' Complete and ample protection is provided for.


Richard Blain: Is any change to be made in the existing law to give -better protection at railway crossings.
The MINISTER OB' RAILWAYS AND CANALS. I think perhaps it might be said to be improved somewhat in that regard.


Richard Blain: Perhaps the hon. minister would tell us in what respect it is improved ?


The MINISTER OF RAILWAYS AND CANALS.: We have given the board full power to require anything and everything that they may deem necessary for the protection of these crossings. We have not confined them or limited them in any way. It would be impossible, I think, to employ language which would give ampler control than is given the board under the Bill. It is possible that the Railway Committee of the Privy Council may have been a little derelict in its duty, so far as the exercise of its power in this respect was concerned. It may have been that their opportunities of going about the country and seeing how the different localities were protected were not sufficient. That might be a reason why they would not be as likely to give this protection in as full and ample a measure as the proposed commission would be likely to do.


Richard Blain: I would ask the minister to consider this clause :
Every company shall provide and maintain at all level crossings within cities, towns and villages whether incorporated or otherwise, such gates, electric bells or subways as may be sufficient for the protection of persons using the streets or highways.
Let me give the hon. minister an example of the need that exists for better protection than is now afforded. The Grand Trunk Company has expended a large sum on their main line between Toronto and Hamilton, and now that company, and the Canadian Pacific Railway Company, who also use the line, are running very fast trains between Hamilton and Toronto. At the different railway crossings in my own county and others between Hamilton and Toronto the danger is considerably increased. In the villages along the lake shore, like Port Credit, customers coming have to cross the railway. I understand that in this present Bill, the hon. minister has provided that a railway company shall have the right to run trains through a town not merely at six miles an hour, as under! the present law but at ten miles an hour. Yet he has made no provision for further protection for passers-by at the railway crossings.


The MINISTER OF RAILWAYS AND CANALS.: That protection is to he provided by the board, and the board has been empowered to do the very things the hon. gentleman lias mentioned in liis amendment. AVe cannot do more than that.


Richard Blain: We could put it in the Bill and make it law, instead of leaving it to the board.


The MINISTER OF RAILWAYS AND CANALS.: It would not be made any more law than we have already made it. The hon. gentleman wants to put in the Bill a provision that a railway company shall be compelled to provide suitable and sufficient-or words equivalent to that-protection by means of gates, watchmen, or some other method. But that is the law now. Somebody must determine when it is necessary that there shall be more protection and what form that protection is to take. If you re-enact it a dozen times, you give it no more power. I can assure the hon. gentleman his amendment is not necessai'y. At the same time I recognize the necessity that ample power should be conferred upon the board in these matters. But we have already provided for that.


Richard Blain: Would the hon. minister answer this one question ? Under the Bill as it is before the House now, is it provided that the crossings- shall be better protected than under the old Railway Act ? I cannot understand it if it is so.


The MINISTER OF RAILWAYS AND CANALS.: Under the enactment of this Bill, they may be better protected.


Richard Blain: It depends entirely upon the good will of the board.
The MINISTER OB" RAILWAYS AND CANALS. You could not gain anything by simply passing a section providing that street crossings on the level shall he better protected than they are now. On the other hand, you cannot make the clause more definite or complete than that which has been passed by the committee. There are differences in the requirements of different localities and in the protection needed. . Some need less, and some need more.


Edward Arthur Lancaster: I would suggest that he insert the words ' or watchman.'


The MINISTER OF RAILWAYS AND CANALS.: I am opposed to this amendment, not because it is not necessary, but because the provisions are already covered by existing enactments.


Edward Arthur Lancaster: Tbe minister means that because the board has power to order these things they are all there ?


The MINISTER OF RAILWAYS AND CANALS.: Yes.


Edward Arthur Lancaster: That is not the same thing as to the proposed amendment. The amendment makes these provisions obligatory. In the one case this parliament is delegating to the board power to do what they may think fit; in the other case we are laying down a rule to guide the board.
Amendment negatived.


Andrew B. Ingram: At the request of the hon. member for Vancouver (Mr. Smith), and Mr. Hall, representative of the railway employees of Canada, I have been asked to move an amendment to section 211 with respect to the equipment of cars. I understand the hon. member for Vancouver is ill, and that is the reason he has asked me to move this amendment:
That section 211 is hereby amended by adding thereto the following :-
All box freight cars built in Canada for use on the Canadian railways after the passing of this Act shall be provided with the following Attachments for the security of railway employees ;
Outside ladders, on the opposite ends and sides of each car, projecting below the frame of the car, with one step or rung of the ladders below t*he frame, the ladders being placed close to the ends and sides to which they are attached ;
Hand grips placed anglewise over the ladders of each box car and so arranged as to assist persons in climbing on the roof by means of the ladder ;
All cars built prior to the passing of this Act shall be fitted to comply with subsection five of this section on or before the 31st day of July, 1905.
I have carefully read the evidence that was given before the hon. gentleman at the time the representatives of the several railway companies and the representatives of the employees gave evidence. I find that certain gentlemen belonging to the companies have stated that the railway employees of Canada are opposed to the amendment I have just read. I can contradict that statement by some sixty resolutions that I hold in my hand, passed by the railway employees of this country at all the railway centres in British Columbia, the North-west Territories, Manitoba, Ontario, Quebec and the eastern provinces. In these resolutions the railway employees declare themselves most decidedly in favour of this amendment. I have read the evidence carefully, and I am able to make that statement. It is not the officers of a railway company or the men employed in shops who are in a position to judge as to whether this amendment is a proper thing. The only men who are competent to judge of that are the men who have to use these ladders when they climb on and off the cars. I know of my own personal knowledge that the side ladders are absolutely necessary on all box cars. I find in the city of Winnipeg that nearly all the foreign cars which come in to that city are supplied with side ladders. I am in a position to say that the Canada Southern division of the Michigan Central Railway have these side ladders on their cars. The great objects that are sought by railway companies in this country are to lessen the curves, to increase the capacity of their rolling stock, to draw as large trains as possible and to get them over the road as quickly as they can. Now the object of these side ladders is to enable the conductor on these long freight trains, when they are approach-Mr. LANCASTER.
ing a station, instead of waiting for the train to haul up at the station and stop, he gets out of the caboose at the rear of the train, climbs up on top, and passes over the entire train in order that he may be at the station as soon as the train stops and get off and get his orders. When he gets his orders he starts out his train. The conductor cannot possibly stop for the caboose to come along when the train is running at quite a speed. The object of the side ladders is to enable him to get on top of that train without running the danger of climbing up from the end where he might possibly fall off and be run over. He gets up on the side ladder because it is safer and handier, and by the same means he gets on top of the cars and passes back to his caboose. By adopting that method he is saving time and gets the train faster over the road, instead of having the train slacken up for him to get on as was stated in the evidence here. Therefore, notwithstanding the statements made in this evidence to the contrary, it is abundantly shown that these side ladders are required.


The MINISTER OF RAILWAYS AND CANALS.: The subject of these side ladders has been much considered by me. I had the benefit of hearing people representing the railways and some representing the operatives, and I felt much embarrassed in trying to come to a conclusion as to whether the disadvantages or the advantages of the side ladders preponderated. The more I heard on the question the more I felt that this parliament was not capable of determining a question of that kind, but that the board, which is to be charged with these duties could much better be trusted to settle this question. Now, we have under our general railway law given full power to the board, which Is authorized to see that all proper appliances are provided for the safety of the employees; they must see that the trains are safely equipped, and that the appliances are altered from time to time when in their judgment they may deem it necessary. When we here require that a particular sort of appliance should be adopted we are making it imperative upon the companies that they should continue to adopt these appliances and a continual change in the railway law of this parliament will be required In order that the improvements should be in general use. That is not a desirable state of things. I think the object would be much better served by leaving this contentious question to be determined by the board, which could take the best means of ascertaining what are the real facts of the matter. Therefore, I would urge the hon. gentleman not to press the motion he has mentioned here, because I think it is one we would not be justified in adopting.


Edward Arthur Lancaster: If the hon. minister will say that the law should not be as the hon. member for East Elgin (Mr. Ingram)

has stated, that these ladders should not be on the ears, I would agree that we should not put this amendment in, but X cannot agree with bis reason that we should refrain from adopting such a provision because we might have to repeal this provision if some better contrivance were found in future. It would not be any more trouble to do so than to pass some of the private Bills that go through this House pretty hurriedly sometimes and some of which involve in some ways much larger questions than this.


The MINISTER OF RAILWAYS AND CANALS.: I have heard both sides, and I have not been able to make up my mind one way or the other. I was far from concluding that it would be a safe thing to do because, we know where engines are shunting trains in the yards and where the cars are approaching one another, taking all the precautions1 that you can, persons who are hanging on the side of the car, perhaps on a dark night, might be struck and if they are struck they would likely be fatally struck under such circumstances. There are various reasons that could be urged against it.


Andrew B. Ingram: All of which do not amount to anything.


The MINISTER OF RAILWAYS AND CANALS.: After listening to the discussion as closely as I could, I was unable to reach a satisfactory conclusion in my own mind. Therefore, I could not recommend the committee to adopt the amendment.


Edward Arthur Lancaster: I think the 200 and odd members of this House could come to a conclusion upon this question with the information that the hon. minister has in his possession. I think we are delegating a great deal too much to this board. I think we will require 300 men and not three to carry out all that we are delegating to the board. It was never contemplated in the beginning that we were going to delegate everything to this board.


The MINISTER OF RAILWAYS AND CANALS.: I do not think this parliament is well equipped to determine such a question.


Edward Arthur Lancaster: There may be somethings, of course, such as the question of preventing discrimination in rates, that we want the board to deal with, but questions in regard to mechanical appliances should not be referred to the board. If the board is to be bothered with matters of that kind and is expected to give attention to them in the same way that another commission would I do not think it will have much time to deal with some of the important questions referred to it. If the hon. minister proposed to refer this question to two or three men to report to this House I could see some sense in a reference of that kind for the purpose of gathering the facts. It
was even suggested seriously by an hon. gentleman on the opposite side that we should leave it to the commission to say what shall be a suitable and sufficient cattle-guard. If this board is not able to do its work well it will be our fault because we have imposed so many duties upon it. If we do agree that these ladders should be put upon the cars it would be well to say so in the Bill as proposed by the hon. member for East Elgin.


Thomas Simpson Sproule: It seems to me that the parties above all others who will either be benefited or injured by this appliance are the train men, and if they desire it they should have it because they are the people who are running the danger all the time. They are the parties who would be injured in the event of the appliance being an improper one, but practical experience convinces them that it would be a benefit to them.


The MINISTER OF RAILWAYS AND CANALS.: They do not agree.


Thomas Simpson Sproule: The very fact that the number of resolutions mentioned by the hon. member for East Elgin has been passed is pretty conclusive evidence that the great bulk of the employees of the companies do agree as to the advisability of adopting that appliance and I think we ought to accept that as sufficient. It is not something that is very expensive to the companies, and therefore it could not be objectionable upon that ground.


Andrew B. Ingram: the railway employees residing in their particular constituencies are very strong upon this line of legislation. The hon. minister speaks of referring this question to the board. If the hon. gentleman will look at section 211 he will see that he has specifically defined matters of equipment that must be provided. What greater injustice would it be to specify this particular class of equipment in the same way as the others are specified ? If the request of the employees, who are certainly the ones interested as it is a matter of life and death to them, is granted, it will impose, it is true, some expense upon the railway companies. These side ladders are for trains not for yards, and when the gentlemen in the committee mentioned about the difficulty of getting up on the side ladders they did not know what they were talking about. They professed to be railway officials but they had prejudiced minds. The yardmen are very little on top of the cars in the yards, but every one knows that the trainmen of this country have risk enough to undergo without imposing risks on them that can be avoided. I have simply done my duty in carrying out the request of the gentleman from Nanaimo (Mr. Smith) and backing, it up with my personal opinion on this legis-' lation. Having done that the responsibility must rest with the minister and the government for refusing these men the legislation that they have passed some sixty resolutions in favour of.


William Findlay Maclean: I agree with what the hon. gentleman from Elgin (Mr. Ingram) has said. I happen to represent a large railway centre and the men asked that a Bill of this kind should be passed, and some years ago I took up the question. We were told then that it should be delayed until we saw the result of the experiment in the United States, but we are no further ahead to-day than we were seven or eight years ago. In the United States they gave the railway companies a certain number of years to provide safety equipment and the brakemen in the United States are in consequence in a better position than they are in Canada.
It is useless to leave this to a board to haggle over; the only proper thing to do . is to put it in a law in the statute-book. The Brotherhood of Trainmen have passed resolutions all through the Dominion in favour of this, and it is time we should pay some heed to the request of men who risk ' their lives in the operations of railways in i this country.	i
opinion from the employees opposed to this Bill, and I may say that expressions of opinion coming from companies professing to give the opinion of the employees on a measure of this kind, should always be taken with a great deal of caution. On this particular section there had been an attempt made to have the employees give expressions of opinion against this Bill, and out of 211 men, 210 were in favour of it, and one did not care, because, as he said, it did not affect him. It is my experience that the men are unanimously in favour of this Bill. My opinion is that included among safety appliances there should be a full length rail on the top edge of box cars. This rail would give a chance to the man grasping at something, should he fall, and in the matter of life and death like this, we should give the railway employee every possible chance. As a matter of fact, wherever expense is to be incurred, the railway companies are very apt not to carry out the suggestions of the men. I do not think the railway companies would have any cause of complaint if we ordered this, and I do not think that the expense would amount to much. Neither do I think that . the opposition of the railway companies ought to be given too much weight in a matter of this kind, and 1 trust that the Minister of Railways will see his way to introduce this provision for the safety of the men.


The MINISTER OF RAILWAYS AND CANALS.: This matter was fully threshed out, and statements were made pro and con, and I do not hesitate to say that there was by no means any satisfactory evidence that this appliance had been determined upon as suitable or as in the interests of the employees of the railway. The Master Car Builders' Association represents the interests of all who are running trains, and this association have enforced the use throughout the United States of almost every safety appliance that was necessary in the interests of. the employees. They are regarded as an association of such authority, that the law of most of the states of the union declares that what they endorse as a proper appliance must be used upon the cars. They have not approved of this side ladder.


Andrew B. Ingram: That was in the evidence, but I would like to see the proof of that statement. In the interchange of foreign cars the side ladders are used.


Mr. PUTTEE.: There is no room for doubt as to the position of the railway employees on this question. For the last two years this matter has been before the trainmen, and I have never heard any objection on the part of the employees to this Bill. I was recently on one of the sections of a large company in the east, where an attempt had been made to get an expression of Mr. INGRAM.


The MINISTER OF RAILWAYS AND CANALS.: In the interchange of American cars there are some with side ladders and some without, and the Master Car Builders' Association have not required the side ladder. It has been left an open question, and that shows that the association has not been able to conclude that it was a device which would add additional safety to the men.

The fact that the cars that are coming into this country and the cars that are in this country are not uniform in this respect is an important consideration to be taken into account in the passage of such a law as this. We ought not to require that these ladders should be placed on our cars when innumerable cars are coming from the United States in the course of traffic which have not these ladders upon them. If they all had the ladders, I presume that the danger would be minimized. But as there are probably as many ears without ladders as with them, if we required all cars to have them on, we would have to exclude the cars from the United States, or we would subject the employees to still greater dangers. It is a question which we ought to be very cautious about legislating upon. It is all very well to say that some association has called upon us to do it; but these local associations do not exhaust the subject, and do not always come to right conclusions. If this device was all that is claimed for it by my hon. friend opposite, the Master Car Builders' Association would have adopted it in the United States. I do not think we need discuss the matter further. The hon. gentleman has stated his case and I have replied, and I think we might now pass the clause.


Andrew B. Ingram: This may not be a very important question to the hon. gentleman, but it is a serious question to the railway employees of this country. It is a matter of life and death to them; and when the hon. gentleman undertakes to reflect upon the intelligence of the trainmen of this country and tells them that they do not know what they want, I think he is going entirely too far.


The MINISTER OF RAILWAYS AND CANALS.: What does the hon. gentleman mean ? I did not say that they did not know what they were talking about, and I would thank the hon. gentleman not to put words in my mouth which I did not use.


Andrew B. Ingram: I am simply drawing an inference from what the hon. gentleman said.


The MINISTER OF RAILWAYS AND CANALS.: You have no right to draw that inference.


Andrew B. Ingram: When a question comes up in this House involving the rights of the workingmen of this country and is treated in a sneering manner by some hon. gentlemen opposite, I want to say that these men have as much right to be treated with consideration in this parliament as any other men.


The MINISTER OF RAILWAYS AND CANALS.: I have as much consideration for the rights and interests of the workingmen as the hon. gentleman has.


Andrew B. Ingram: Then the hon. gentleman should not try to prevent me putting their case before this House. Who are the master car builders ? They are mechanics who have worked in the workshops of this country. Many of them never mounted a car in their life. The trainmen who are mounting the cars night and day, in fair weather and bad weather, who take their lives in their hands, are to be told that they do not know how to mount these cars, but that they must mount them in the most dangerous way, forsooth, because the master car builders do not favour these side ladders. I know from personal experience the inconvenience that these men have to suffer. I have thousands of times mounted the railway cars of this country, and I am not ashamed of it. While doing that I associated with just as intelligent men as those I have associated with in this House-men who are as capable of understanding their requirements as hon. gentlemen in this House are capable of understanding theirs. There are college-bred men occupying positions on trains in this country, men who are as capable to be representatives in this House as hon. gentlemen who are here. And are these men to be told that they do not know what they want, that they are entirely mistaken, and that the Master Car Builders' Association know better what they require than they do themselves ? I tell you it is a matter of life and death to these men. It may be of more interest to the hon. gentleman to have the railway companies pay larger dividends instead of supplying the things that are necessary to protect the lives and limbs of their employees. I have read all this evidence given by certain railway -officials, and I say that the statements made there are not justified by the facts. I challenge the hon. minister to appoint a special committee and have the railway .employees come here, and see whether these statements are true or false. It is all very well for the large corporations to oppose side ladders because they have adopted end ladders. All I have to say is that if the employees do not know better than the companies what they require, then God help the employees. I have nothing to say against the railway companies, because it is as much in their interest to protect their employees, and not have loss of life and limb from time to time. Hon. gentlemen will find, if they look at the statistics, that railway employees have suffered accidents either by falling off cars or by coupling cars. I do feel indignant when I am told that I have stated my case once or twice, and that ought to be sufficient. When the general election comes round and that is the time these men look for redress, they will inquire from their representative whether he is Grit or Tory, if he has supported this legislation, and they will tell him that they look upon it as an important piece of legislation and such as

justify them in only voting for candidates who will support the legislation they require.


William Findlay Maclean: We are dealing with a Bill governing railway matters. We have introduced clauses to protect shareholders, bondholders, farmers and passengers. The proposal is now made, at the request of the railway men, that certain clauses ought to be put in the Bill for the protection of the men who operate these railways, and we are told that we are wasting time in considering their rights. X protest against that and appeal to the hen. Minister of Labour whether it is not his duty to see that the men who work upon these trains are protected. They have asked year after year parliament to intervene. I introduced legislation in this respect years ago, but on one argument or another it was always side-tracked, and no progress made. Every time I brought It up, some insufficient reason has been given why adequate protection should not be afforded the men who operated the roads. I appeal to the hon. minister, if he is not in a position to give an answer now, to take time to consider this question, which involves the lives and safety of those men. Similar protection is given in other countries. In England the main feature of railway legislation is to secure the safety of the lives of the public and the men who operate the train, and the result is that there are fewer railway accidents in England than in any other country. This is largely due to the fact that parliament has made such provision as will not only protect the lives of the passengers but of the men who operate the trains.


The MINISTER OP RAILWAYS AND CANALS.: I have no reason to continue the discussion any later and we might as well stop at this stage. It is very evident that I cannot get the Bill finally disposed of tonight, and I therefore move that the committee report progress and ask leave to sit again.


Richard Blain: When will the Bill be taken up again ?


The MINISTER OF RAILWAYS AND CANALS.: It will be the first order at our next sitting.
Progress reported.
The MINISTER OP FINANCE moved the adjournment of the House.


Thomas Simpson Sproule: What will be the business for to-morrow ?


The MINISTER OP FINANCE.: This Railway Bill and one or two Bills on the Order Paper that may be dealt with, and if we reach Supply we will take up the estimates of the Department of the Interior.


[Stage Direction]
Motion agreed to, and House adjourned at 1.40 a.m. Thursday.
[Stage Direction]
Thursday, July 9, 1903.