TMI Blog1928 (7) TMI 3X X X X Extracts X X X X X X X X Extracts X X X X ..... -appeal (brought by leave) against so much of the order of the Court of appeal as varied the award in the appellants' favour and against that part of the same order which directed the respondents to pay interest on the principal sum awarded. 3. The award was made on a claim by the appellants for compensation in respect of certain lands expropriated by the respondents for the purpose of their statutory undertaking. 4. The respondents are virtually a department of the Province of New Brunswick and were incorporated by the Act above referred to for the purpose of constructing, maintaining and operating works, machinery and plant for generating electrical energy from (amongst other things) water power and for transmitting the same. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ge so designated should thereupon become and be the sole arbitrator for determining the compensation to be paid. 7. It was expressly enacted that if the sum awarded should not be greater than that offered, the costs of the arbitration should be borne by the owner. 8. An appeal was allowed upon any question of law or fact to the appeal division of the Supreme Court, and it was provided that upon the hearing of the appeal, the Supreme Court, if the question were one of fact, should decide the same upon the evidence taken before the arbitrator as in the case of original jurisdiction. 9. The Musquash river, which flows into the Bay of Fundy, about 17 miles S.W. of the city of St. John, consists of two branches, the east branch and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the main made up of the beds of the river and its tributaries and comparatively narrow strips of land on their banks. The whole of Lake Alva and the land on its shores is included. These portions are severed from the rest of the area, which thus loses such facilities for water transport as it previously enjoyed. The owners are also deprived of the fishing in the rivers and lakes included in the expropriated portion. 13. Pursuant to the provisions of the above-mentioned Act, the respondents obtained the certificate of Mr. G.G. Murdoch, a sworn surveyor and civil engineer, disinterested in the matter. The amount stated by him to be in his opinion fair compensation for the land to be taken and for damages was $59,003.56, made up of the fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Damage to remainder of property on account of severance ... 17,500 42,500 16. The appellants appealed to the Appeal Division of the Supreme Court, which by their order dated 22nd April 1927, varied the award as follows: (1) By allowing a further sum of $900 with the addition of 10 per cent, for forcible taking for the 360 acres not allowed for by the arbitrator; and (2) by allowing $6,000 for fishing rights, making the total amount awarded $49,490. The Court also allowed interest, refused by the arbitrator, on the said sum of $49,490 at the rate of 5 per cent, per annum from 13th October 1920. They gave the appellants the costs of the appeal, but o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the appellants' witnesses. Then having found that there were no special advantages on which a value could be placed, he has adopted the value placed on the land by Mr. Murdoch. It cannot be suggested that there was no evidence on which his finding could properly be based. There being no error in law and sufficient evidence to support the finding, it is clear that the Court of appeal were right in refusing to disturb it. 20. The arbitrator made a mistake as to the number of acres taken and that has been properly corrected by the Appeal Division. 21. As to the complaint that no value has been placed on the land in respect of possible profits to be derived from the hunting and shooting, their Lordships de not see their way to int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mon fishing, thought there was evidence that the fishing for trout and land locked salmon was of value and assessed it at 6,000. Their Lordships are of opinion that there was abundant evidence that this fishing was of some substantial value and they can see no reason for interfering with the order of the Appeal Division as to the amount. 25. The last question is that of the allowance of interest and it is a serious one. 26. It is now well-established that on a contract for sale and purchase of land it is the practice to require the purchaser to pay interest on his purchase money from the date when he took possession (per Lord Cave, L.C., in Swift v The Board of Trade [1925] A.C. 520 at 532. 27. The law on the point has also been e ..... X X X X Extracts X X X X X X X X Extracts X X X X
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