D. C. 1907 SIMPSON V. EATON. Boyd, C. lot with house and windows in question, the owner could not by himself or by anyone claiming under him thereafter do anything on the next adjoining lot he retained which would materially diminish the light coming to the windows. But a change has been made by the defendants, who have erected a wall on this lot about twice as high as that which existed at the time of severance. This structure has the effect of obstructing the passage of light whereby the plaintiff's rooms have been darkened and artificial light has to be used early in the evenings. The structure complained of occasions perceptible and material detriment to the plaintiff's premises, and lessens the beneficial enjoyment of them to an easily measurable extent. By this act the defendants have derogated from the grant made by Lake, and the plaintiff has the right to complain of it. The plaintiff's inertness has been such that the defendants have changed their position, so that the proper method of relief is not by way of mandatory injunction, but by way of award of damages. No evidence was given on this head, and though the learned Judge has arrived at the sum of $300 in case damages are to be given, I do not think the plaintiff should be concluded by that, if he choses to risk a reference. If this sum is not accepted there will be a reference to the Master, who may then dispose of the costs of reference (having regard to the sum of $300 rejected), when he ascertains the amount of damage. In any case the plaintiff is entitled to the costs of trial and appeal. I do not think the argument as to an outstanding mortgage, at the date of the severance, material, as that mortgage was afterwards discharged. Nor do I think that proper evidence was tendered to shew that the mortgage was continued and embraced in a subsequent mortgage under which a power of sale was exercised. The result is that the dismissal should be set aside and judgment entered for the plaintiff with costs, subject to a reference as already stated. MABEE, J.-I agree in the judgment just read, except that I think the defendants in addition to paying damages and costs should be restrained from building the wall in question higher than it now is, or from doing any other act upon their premises in interference with the plaintiff's easement of light. From the very full and careful argument and a further perusal of the evidence it seems to me the defendants proceeded with the construction of their building either regardless of the rights of the plaintiff, or under the impression that he had no easement as claimed, and if the latter is the proper inference then his position and contentions were made known to the defendants long before the wall had reached its present height. I think, after the solicitor's letter was written the defendants proceeded at their peril, and were it not for the fact that there may have been some misunderstanding over the correspondence I would be in favour of granting the mandatory injunction requiring the removal of this nuisance. It is perhaps more charitable to think the defendants thought there might be no objection to the building going up three storeys, although it is quite clear from the evidence of Mr. Baird, the plaintiff's solicitor, that he was under the impression the work was to stop at the second and not the third storey, or that there was to be a shaft left for light, and it is only in view of this possible misunderstanding that I agree to limiting the plaintiff's rights to damages. MAGEE, J., concurred with BOYD, C. D.C. 1907 SIMPSON V. EATON. Mabee, J . G. F. H. D. C. 1907 October 7. [DIVISIONAL COURT.] BELLEVILLE AND PRINCE EDWARD BRIDGE Co. v. TOWNSHIP OF Assessment and Taxes-Toll Bridge over Navigable Waters Liability to Assessment-Real Property-Easement-Assessment Act-Exemptions Interest of Crown-Bridge Forming Part of Toll Road-Public Road or Way. A toll bridge across the waters of the Bay of Quinté, and its approaches, erected by a company incorporated by 50 & 51 Vict. ch. 97 (D.), and acquired by the plaintiffs, who were incorporated by 62 & 63 Vict. ch. 95 (D.), was held to be liable to assessment, as regards the part situate in the township of Ameliasburg, as real property, within the meaning of the Ontario Assessment Act, 4 Edw. VII. ch. 23. The effect of the two Dominion statutes referred to is to confer a perpetual Niagara Falls Suspension Bridge Co. v. Gardner (1869), 29 U.C.R. 94, In re ACTION to recover taxes paid under protest by the plaintiffs The action was tried before BOYD, C., without a jury, at Belleville, on the 3rd October, 1907. E. G. Porter, for the plaintiffs. October 7. BoYD, C. :-This action questions the validity of municipal assessment upon certain property claimed by the plaintiff company. When once the character and quality of the property is determined by reference to the Assessment Act, the question appears to be easily solved. The property owned by the plaintiffs is a bridge with its approaches, affording a means of passage from the mainland on the Belleville side of the Bay of Quinté to the mainland belonging D. C. 1907 AND PRINCE EDWARD BRIDGE CO. บ. TOWNSHIP to the county of Prince Edward, in the township of Ameliasburg, the defendant municipality. It is a bridge upon which toll is levied, and to which the public has right of access only upon pay- BELLEVILLE ment of the statutory toll: 62 & 63 Vict. ch. 95, sec. 8 (D.) It is built on and over the marshes, islands, and navigable waters of the Bay of Quinté, but it is to be so used as not to interfere with navigation and other public uses of the bay ib., sec. 10. This bridge property is, within the meaning of the Ontario Assessment Act, taxable land. By interpretation all structures and fixtures placed upon, in, over or affixed to any public place or water, e.g., an interprovincial or an international bridge over navigable water, is land Ontario Assessment Act, 4 Edw. VII. ch. 23, sec. 2, subsec. 7 (e); Niagara Falls Suspension Bridge Co. v. Gardner (1869), 29 U.C.R. 194. Section 43 (2) warrants the assessment of this bridge, so far as the interest therein of the plaintiffs is concerned, leaving exempt the title and property of the Crown, as provided by sec. 35. Section 37* of the Act has no application to this case, for here the property, though over a mile in length, is nothing in its totality but a bridge. That section applies only to a long bridge forming part of a toll road. It matters not that the Bay of Quinté, over which the bridge passes, is navigable water, forming in law a public highway; this bridge gives another right of way of legalized character, obtainable upon payment, over that water, without interfering with the absolute public rights of passage and navigation. The law on this head is all covered by Niagara Falls Park and River R.W. Co. v. Town of Niagara (1899), 31 O.R. 29. The situation is analogous to the conjunction of a public highway on land with a street railway running thereon, or the pipes of a private gas company laid thereunder. In both cases, notwithstanding the property of the Crown in the road, taxes are levied in respect of its beneficial user by the private proprietors. *37. Plank, gravel, macadamized or other toll roads not owned by any municipal corporation shall be assessed as real estate in the municipality in which the same are situate; and in making the assessment the assessor shall take into consideration the value of (1) the land occupied by the road, (2) the materials employed in the superstructure, (3) toll houses, buildings, and gates on the road, (4) quarries and gravel pits and roads to and from such places, and used in connection therewith; but this section shall not include bridges 100 feet in length or over, and the approaches thereto, which are on or along such toll road and which are used therewith. OF AMELIAS BURG. Boyd, C. D. C. 1907 The bridge is assessable as to the half within the defendants' area on its taxable value as a whole, with the proper proportionBELLEVILLE ment of the amount referable to the structure on the Ameliasburg AND PRINCE EDWARD BRIDGE CO. v. TOWNSHIP OF AMELIASBURG. Boyd, C. side. The action should stand dismissed with costs. The plaintiffs appealed from this decision, and their appeal was heard by a Divisional Court composed of MEREDITH, C.J.C.P., MACMAHON and TEETZEL, JJ., on the 12th November, 1907. E. G. Porter, for the appellants. The land is vested in the Crown, and is exempt. The bridge is used and operated as part of the public highway-the Bay of Quinté. There is a statutory obligation upon the plaintiffs to operate it so that the public right is not interfered with. The plaintiffs are servants of or trustees for the Crown, operating the highway for the Crown, and the bridge, as part of the public highway so operated, is, therefore, exempt from taxation. In another view, this is a public road or way (sec. 5, cl. 5, of the Assessment Act), notwithstanding that tolls are collected: Re Hamilton and Township of Biddulph (1877), 13 U.C.L.J. N.S. 18; Struthers v. Town of Sudbury (1900), 27 A.R. 217. In any event, it is only a franchise or license that these plaintiffs have-it is not ownership: Consumers Gas Co. of Toronto v. City of Toronto (1897), 27 S.C.R. 453; Quirt v. The Queen (1891), 19 S.C.R. 510; Ley v. Wright (1877), 27 C.P. 522; Buffalo and Lake Huron R.W. Co. v. Town of Goderich (1861), 21 U.C.R. 97; The King v. Mersey and Irwell Navigation Co. (1829), 9 B. & C. 95; Paris and New York Telegraph Co. v. Penzance Union (1884), 12 Q.B.D. 552. This bridge is over 100 feet in length, and is exempt under sec. 37. W. S. Morden, for the defendants. It is a misnomer to call this a toll road. Section 37 has no application, because, if you take out the bridge and approaches, there is no toll road left. This is a bridge, not a road. The incorporating Act is 50 & 51 Vict. ch. 97 (D.) "Toll road" has a definite meaning: see sec. 38 of the Assessment Act. He referred to In re Mud Lake Bridge (1906), 12 O.L.R. 159; Niagara Falls Suspension Bridge Co. v. Gardner, 29 U.C.R. 194; In re London Street Railway Company Assessment (1900), 27 A.R. 83; The Queen v. Blackfriars Bridge Co. (1839), 9 A. & E. 828; International Bridge Co. v. Village of |