March 3, 1902 (9th Parliament, 2nd Session)

COWAN (South Essex) moved second reading of Bill (No. 4) respecting drainage on and across the property of railway companies. He said : Mr. Speaker, this subject of drainage on and across the property of railway companies is one that is not new to this House. It was some years ago introduced by the then hon. member for West Elgin (Mr. Casey). In 1900, some amendments were made to the Railway Act. The object and the purport of the Bill at that time was to amend the procedure by which municipalites and landowners could drain across the property of railway companies. In 1900, the Act was amended enabling landowners to come before the Railway Committee of the Privy Council. Prior to that time they could only reach it through the municipalities and if it were a drain under the Ditches and Watercourses Act of Ontario, not being a municipal drain, within the true sense of a municipal drain, tjjey could not get before the Railway Committee of the Privy Council. In 1900, the Railway Act was amended enabling a land owner to come before the Railway Committee of the Privy Council if he desired to drain across the land of a railway company. My object in introducing this Bill is to adopt the provincial laws in force in the various provinces enabling the landowners to use the provincial machinery to drain across the lands of the railway companies under the same procedure as they could drain across the land of any other landowner- with the exception, that wherever the procedure does not enable or provide for notice to be served upon the railway company, a notice shall be served upon them; giving the railway company an opportunity of agreeing with the engineer of the municipality or landowner as to the point at which the railway shall be crossed, and also as to the cost and other details in connection with it. In the event of these two parties, after a conference, failing to agree, the Bill then provides that the county court judge, or the judge having jurisdiction in the district, should settle the matter-the question of costs being determined by the judge. In order to safeguard the interest of the travelling public I have inserted a clause

to the effect that the railway companies shall have the right to do the work upon their own lands. I quite realize that it would be inadvisable to permit every person to invade the railway lands and construct a drain or tunnel under the road-bed. I have, therefore, in the interest of the railway companies, made that provision.
The necessity for drainage across railways was decided on in this House when the Railway Act was amended in 1900. I think the Prime Minister then admitted that there was a necessity for the simplification of the existing machinery. I contend that the Railway Committee of the Privy Council is not the proper tribunal before which a private landowner should be compelled to go in order to enable him to construct a drain costing practically only a few dollars. There are very few farmers who will invoke the machinery at present in force and go to the Railway Committee of the Privy Council. The name in itself 'Railway Committee of the Privy Council' scares the average landpwner from coming before that body, and the fact that an ordinary farmer may have to travel hundreds of miles to Ottawa is an absolute barrier. The farmers are not acquainted with the machinery of that tribunal, and I venture to say that there are not 50 per cent of the members of this Blouse; yes, not 50 per cent possibly of the lawyers of this House who are acquainted with the different steps to he taken in order to bring a case before the Railway Committee of the.Privy Council.
The portions of the province of Ontario which I think stand most in need of this legislation are the western counties. Take the counties of Essex, Kent, Elgin and Lambton and I am within the mark when I say that there is not a thousand acres in any of these counties but has been either directly or indirectly assessed and taxed for the construction of drainage work. In those flat sections of the country it is necessary to construct large artificial drains extending for miles, and portions of these counties present the appearance of being ditched like a checker board. So far as the county of Essex is concerned, the fall is to the north into Lake St. Clair. Along the northern border of that county, the Grand Trunk Railway and the Canadian Pacific Railway and the Michigan Central, three large trunk lines have constructed their road-beds. In order that the farmer could successfully prosecute an action under the Ontario law against a railway corporation for the damming up or damming back of water, it must have been a natural stream or a natural watercourse. There are but few natural watercourses in that county, because the water flows gently over the surface of the land with a fall probably of from four feet to nine feet per mile. The result is that there is not sufficient current, and no hill to precipitate the water at a rapid rate so as to form cuts in the Mr. COWAN.
earth, and so there are miles and miles in that county where the water flows gently over the surface of the soil leaving no track behind it that could within the meaning of the law be called a natural watercourse. The result is that when the water flows down to the railway track and the railway company construct their road-bed closing up the point across which that water originally flowed, no action will lie against the railway corporation, because they have not stopped up what is called a natural stream, or a natural watercourse within the meaning of the Ontario decisions.
If a farmer desires to cross that track with his drain he is compelled to come before the Railway Committee of the Privy Council. As we know, railway corporations are slow to grant anything that they are not obliged to grant. I venture to say that there are few instances in which any railway corporation has ever permitted a culvert to be constructed under its road-bed, until it was compelled to do so by the highest legal authority. Suppose the matter is in dispute and a farmer in the county of Essex finds it necessary to construct a drain, then you ask him to come 500 miles to the Railway Committee of the Privy Council at Ottawa, to bring his witnesses and his engineers, and to retain counsel. I say there is not one farmer out of a hundred who will do that. I am within the mark in saying, that in these low lying sections of the country every four or five years some farmer loses the entire crop of the soil, because he is unable to make proper drainage across these railways. The land in that section of the country being largely clay and not porous as in sandy sections, it holds the water on the surface and therefore drainage is absolutely necessary. There is scarcely a township in the county of Essex that has not spent hundreds of thousands of doUars in the construction of drains to drain the land. It is a direct tax. These drains are filled up with silt, they cave in and so forth until it becomes necessary to renew them about every ten years on an average. The tax for the construction of large drains in the county of Essex through the flat section, runs from 75 cents to $3 per acre and it is a recurring tax. The railway corporations, I am bound to say, wherever the opportunity was afforded them to prevent the farmer or municipality draining across their lines, have not hesitated to take advantage of the opportunity. One corporation draining through a natural creek found it necessary to cross a railway in the construction of a drain costing between $30,000 and $40,000, and the railway company refused to let the dredge pass under the railway bridge until arrangements were made for the payment what they said-according to the statement of the contractor-was the actual cost. They made an arrangement that they should pass under the bridge on a

Sunday afternoon when there was little traffic. It took twelve men four hours to raise the girders, and before the railway company permitted the dredge to pass, they compelled them to deposit $1,500, as according to the statement of the contractor-
I do not know how true-it was on the understanding that the sum was to cover the expense and that he was to receive back anything in excess of the actual expense. When he wanted to get the dredge out again he was compelled to deposit $1,500 more.
It took twelve men four hours, or forty-eight hours labour of one man, to do it. I complained to the Department of Railways and Canals of what I thought was a deliberate steal, and the reply I got from the department was that they had submitted my complaint to the railway company, and the railway company said there was a contract, and consequently the department could not interfere in a matter governed by a contract between the two parties. The corporation still has that $3,000 for ninety-six hours work. In other words, the railway corporation charged at the rate of $31 per hour for what cost it 12i cents per hour. There is no question of tariff or transportation, which is as important to the western counties as this matter respecting drainage. We do not want anything but what is fair, but we do want to be in a position to prevent a railway corporation from holding water back along its ditches for miles and flooding, in the county of Essex, the most fertile belt in the province of Ontario. Mr. Speaker, I move the second reading of this Bill.