Reeve of Dover with the surveyor's report, &c., and then Dover became the actor in taking the appeal.

I am of opinion, on the whole case, that the award cannot be supported, and should be set aside. The defects in the surveyor's report are, that it does not disclose the beginning or end of the work. Saying "from station () to station 240," without indicating where stations 0 and 240 are situated, is not sufficient to shew where the work begins or ends. This is all the information the report gives. A reference to the profile shews station 0 is at Prince Albert Road, station 135 at the town line. This profile does not shew station 240. The last mentioned is 239, with the remark, "continued 300 rods further, clearing bars and timber." This profile professes to be profile of the Little Bear Creek drain in Chatham township from Prince Albert Road westward, and of its extension into Dover. The plan gives no precise information, but merely shews a brown streak running through certain lots and concessions. The report and plans should be so specific and clear as to indicate what was intended to be done in respect of which the servient municipality was to bear any expense.

I do not at present understand how Dover was to be benefited by the deepening of Little Bear Creek drain, treating that as an artificial ditch, unless it comes under section 535, when the lands and roads benefited in Dover might have to contribute; but then there would be no work done in Dover. Here the work apparently contemplated is to be done within Dover, except the deepening and enlargement of the existing drain in Chatham. Now, as to the expense of this deepening, there seems no reason why Dover should contribute, the flow of the water being through Dover and from Chatham. The work of deepening Little Bear Creek in Dover is what Dover and the lands benefited therein should share in the expense of, and I think the estimated cost of that work, unconnected with the work in Chatham, should have been shewn separate and distinct from the cost of the entire work, and the proportion of that cost is what ought to have been assessed

by the surveyor against Dover and the lands benefited therein.

It is, of course, quite possible that deepening a drain in Chatham and giving to it a better outlet through Dover, would benefit other and quite different lands in Dover from those which the mere deepening of the Little Bear Creek would benefit. The statute only makes provision for two cases, that is, under sections 534 and 535. Where the deepening is continued into the adjoining municipality the benefit is to be derived from such deepening or the drainage thereby created in such adjoining municipality. The work to be done in Dover, exclusive of bridges, according to the evidence of the surveyor Mr. McGeorge, was $3,770, and the cost of bridges $500. From his evidence, he, in making his report, assumed to have the right to widen the bridges, and thus to interfere with the roads and bridges in Dover, which it is scarcely possible was a right intended to be conferred under the expression deepening of a stream, creek, or water course; and he does not appear to have made his assessment as against Dover, merely in respect of the work done in Dover.

What the petitioners prayed for was that Little Bear Creek drain should be deepened and enlarged, the effect of which, if beneficial at all, would be to lead a larger quantity of water, or the same quantity more rapidly than before to Little Bear Creek, and to make for such drain an efficient outlet. The surveyor had no right to go beyond this against the will of Dover and the owners of lands therein, and Dover and the land owners ought not as a matter of equity, to be charged, with more of the expense than would be warranted by the direct benefit. that they would derive from the work if no larger quantity of water were thereby brought upon them by the works It would be unjust to make them pay to be relieved of the excess of water thrown upon them by the works in Chatham.

The conclusion to be deduced from the decision of the Queen's Bench Divisional Court, in the case of The Cor

poration of Thurlow v. The Corporation of Sidney, 1 O. R is that the arbitrators stand in reference to the duties they have to perform to the two municipalities and land owners in the same position as the surveyor or engineer, and the land owners have the right of appeal, as between them and their own municipality, to the Court of Revision, and further to the County Judge; therefore the arbitrators should have apportioned the amounts between the landowners in Dover and that municipality, according to their view of what was the just assessment of each; and it follows that the award must be set aside on the two grounds I have already stated, the want of a concurring mind on the part of the arbitrators, and the insufficiency of the original report. No costs to either party.

Judgment accordingly.

[QUEEN'S BENCH DIVISION.]

HERRING AND NAPANEE, TAMWORTH, AND QUEBEC RAILWAY COMPANY.

Consolidated R. W. Act, 42 Vic. ch. 9, D.-Submission, rule of CourtCommunications with arbitrators after evidence closed.

The railway company served a notice on H. under 42 Vict. ch. 9 (D.), offering a sum of money as compensation for land to be expropriated by them, and naming an arbitrator. H. served a notice on the company, naming his arbitrator, and the two appointed a third.

Held, that the notices of appointment of arbitrators and the appointment of the third arbitrator might be made a rule of Court under C. L. P. Act, sec. 201.

Re Credit Valley R. W. Co. v. Great Western R. W. Co., 4 A. R. 532, distinguished.

After the evidence had been closed the construction committee of the railway company wrote a letter, addressed to H., agreeing to certain things whereby the damage to his property would be lessened. This was delivered to the arbitrator for the company before the award was made and by him to the umpire, but was not communicated to H, until after the award, which contained recitals of the benefits proposed by this letter, and assessed the compensation at the sum originally offered by the company. The award was not signed by H.'s arbitrator, who swore that the letter affected the award, and reduced the sum awarded, while the other two arbitrators swore it had no effect upon their finding. Held, that the award was bad.

Remarks as to the caution to be observed by arbitrators in such cases in considering or acting upon such agreements made pending the arbitration.

February 12, 1884. Langton obtained an order nisi to set aside an award made under the provisions of The Consolidated Railway Act, 1879, 42 Vic. ch. 9, D. fixing the compensation payable to Herring for lands appropriated by the railway company on the following grounds:

1. That the said railway company without the said Herring's knowledge or consent improperly caused to be sent to said arbitrators, after the evidence had been closed and before award made, a communication on the subject of the reference before the arbitrators and while the matter had been taken into consideration by them, viz.: the letter referred to in the affidavit of said Herring, intending thereby to influence said arbitrators, and the arbitrators who signed said alleged award were influenced thereby, and in consideration of the privileges supposed by said arbitrators to be thereby granted by said railway, awarded a different

and less sum as compensation to said Herring than but for said writing they would have done.

2. The construction committee had no authority to bind the company as they assumed to do in said writing, nor had said company any authority or power to enable them so to do, nor did said Herring accept said order, nor was said company bound thereby, nor had the arbitrators any right nor were they justified in taking into consideration at all said matters therein referred to in the manner in which they did.

3. That said arbitrators had no authority to direct said railway to make suitable drains to carry off any water that might be caused by said railway on said lands, but should have computed and allowed the damages present and prospective occasioned by the omission to construct proper drains.

4. That said arbitrators did not allow and should have allowed compensation (1) for increased risk of fire and increased insurance (2) for flooding caused by said railway (3) for depreciation of the premises by having to convey glass across the railway from cutting room to warehouse, when but for said railway the storehouse could and would have been placed conveniently near said cutting room and connected therewith by tramway (4) in depreciation of the premises by cutting off one portion from the other (5) depreciation of the prospective value of the vacant lands as town lots (6) damages by being compelled to cross and re-cross said track.

5. That the said award was made at a meeting of the time and place of which John Stevenson, one of the arbitrators, did not have due notice according to the provisions of the statute in that case made and provided.

6. That the said arbitrators had no power to set off against the disadvantages caused by the said railway any supposed or prospective advantages to the premises afforded by said railway.

7. That said arbitrators were wrong in setting off against any supposed increased value of the lands in