Fairman v. City of Montreal

Fairman v. City of Montreal

The city's agreement and taking of possession in October 1895 constituted a valid cession even though the price was to be fixed by commissioners; s.17 of 59 Vict. c.49 did not excuse the city from applying within a reasonable time to fix and pay indemnity for land already taken; the city's failure entitled the owner to recover indemnity by ordinary action; valuation must reflect market value and cannot be determined by simple averaging of witness estimates. Judgment for appellants for $14,916 with interest from November 1, 1895.

Citation
(1901) 31 SCR 210
Parties
Appellants/plaintiffs: Frederick Fairman and others; Respondent/defendant: The City of Montreal
Court
Supreme Court of Canada
Jurisdiction
Canada
Judgment Date
22 March 1901
Procedural Posture
Municipal Law Expropriation/indemnity / Appeal to Supreme Court of Canada From Court of Queen's Bench, Province of Quebec (appeal Side)
Outcome
Appeal allowed with costs; judgment entered for appellants
Legal Topics
Expropriation, Indemnity, Appointment of Commissioners, Municipal Borrowing Limits, Remedies (common Law Action, Mandamus)
Source Language
English
Municipal Law Property Law Eminent Domain Statutory Interpretation Expropriation Indemnity Appointment of Commissioners Municipal Borrowing Limits +1 more

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Parties

Frederick Fairman and others

Appellants/plaintiffs

The City of Montreal

Respondent/defendant

Procedural Posture

Municipal Law Expropriation/indemnity / Appeal to Supreme Court of Canada From Court of Queen's Bench, Province of Quebec (appeal Side)

Legal Issues

  1. 1 Whether a conditional cession allowing city possession with price to be fixed by commissioners constituted a valid transfer
  2. 2 Whether s.17 of 59 Vict. c.49 relieved the city from the obligation to proceed or to fix and pay indemnity for land already taken
  3. 3 Whether the owner could pursue an ordinary action for indemnity where the municipality failed to obtain commissioners and assessments within a reasonable time

Ratio Decidendi

The city's agreement and taking of possession in October 1895 constituted a valid cession even though the price was to be fixed by commissioners; s.17 of 59 Vict. c.49 did not excuse the city from applying within a reasonable time to fix and pay indemnity for land already taken; the city's failure entitled the owner to recover indemnity by ordinary action; valuation must reflect market value and cannot be determined by simple averaging of witness estimates. Judgment for appellants for $14,916 with interest from November 1, 1895.

Court Disposition

Appeal allowed with costs; judgment entered for appellants

Orders

  • Judgment for appellants in the sum of $14,916 with interest from November 1, 1895
  • Costs to appellants in all courts