p.2 Court of Queen's Bench - Anglin vs The Grand Trunk Railway Co. - This is an action brought by Mr. William Anglin, wharfinger and lumber merchant, of this city, to recover damages from the G.T.R. Company on account of the railroad track being laid so as to interfere with the plaintiff's wharf, whereby, as is alleged, the value of such wharf is materially deteriorated. Messrs. Smith, Thos. Kirkpatrick and O'Reilly were retained for the plaintiff; Messrs. Campbell and Ross for the G.T.R. Company.
Mr. O'Reilly, junior counsel for the plaintiff, explained the case to the jury.
The Judge said that in order to save time he should rule that evidence respecting the abstract right of the company to construct the railroad according to their plan should not be admitted, as that would be a matter for an indictment and not for a private action.
Mr. Henry Smith, senior counsel for the plaintiff, called -
Mr. Charles Gay, who proved transfer of the wharf in question to the plaintiff. - Mr. Anglin had carried on a large lumbering business. Knew that Mr. Anglin had extensive lumbering establishments on the Rideau Canal, and vessels came to the wharf in question from the Canal. Mr. Anglin also supplied the American market with lumber. The vessels employed in this trade came to the wharf in question. Knew that the wharf was occupied by the contractors of the G.T.R. for shipping purposes. Railway iron, wheels, etc., had been delivered by the contractors at the wharf in question. The contractors had forges adjacent to the wharf. The contractors' property came in boats and schooners, and there was sufficient water to admit vessels.
(The lease of a portion of the premises in question by Mr. William Anglin to Messrs. Jackson, Peto, Brassey and Betts at a yearly rent of 150 pounds per annum, dated 6th September, 1853, was filed in Court.)
Mr. Gay stated that a permanent embankment had been made in front of the wharf in question cutting off the wharf from main communication with the bay. The wharf was quite obstructed. Mr. Anglin still carried on the lumbering business at his mills on the canal. He still had his vessels, but they were not at the wharf.
By the Judge - Vessels could not get to the wharf now.
Witness thought a vessel could not enter at the drawbridge to be constructed unless towed in by a steamer. Witness' own premises were not now of much value to him.
(The question of permanent obstruction was argued by counsel, and it was decided by his lordship to admit evidence.)
Mr. Gay testified that the effect of the construction of the track was to fill up the harbor. His own premises were advertised to let, but he could not get a bid in consequence of the obstruction. Believed there was a space left in the embankment for a drawbridge. The place left for the drawbridge was so near shoal water that it would be difficult for vessels to get in. The drawbridge might have been at a place where the water was deeper. Ballasting carts were run over the track. The track could have been made on the edge of the shore with less injury to the property in question than at present. (An objection was raised to the last question.)
Mr. Anglin kept lumber on the portion of his wharf reserved to him during the time that the other portion was leased to the contractors of the G.T.R. Could not form an estimate of the value of the portion.
By Mr. Campbell - Owned the neighboring property. Had not yet sued the company. This was not an experiment in which witness was concerned.
Mr. H. Smith (to Mr. Campbell) - It is an experiment in which you are concerned. (Laughter.)
Mr. Gay - Could not tell what the wharf had cost. It had been building for twenty years. Could not tell the depth of water at the time before the wharf was obstructed. The pier was below Cataraqui bridge, but could not tell how wide was the opening of the bridge. The openings for the drawbridge were there, but timbers were laid across. Thought the openings were wide enough. Did not know but the openings in the track were as wide as the opening of the Cataraqui bridge. Did not know whether the openings were wider than the locks at Kingston Mills. Mr. Anglin's vessels brought lumber principally; but did not know whether he used his wharf for other purposes. The lumber generally came from the canal, and the plaintiff had used scows and barges, and he had seen schooners loading at the wharf. Rather thought it was not usual to bring lumber down the canal in schooners. Had seen a three-masted schooner owned by Mr. Anglin at the wharf frequently. Such a vessel could not now get in unless towed in by a steamer, but this would depend upon the wind. There was a shoal intervening which extended a long distance from the woodyard. Thought there was a shoal outside the track opposite the barracks. The difficulty in entering he apprehended was on the point of sailing. Did not know whether there was any difficulty with steamers in entering. The tenements on the wharf were used by the contractors as lodgings for their men. The places were not used as stables. Understood that the present track was constructed by Dr. Dickson and others, and not by the English contractors. Had seen part of the embankment washed away at the time it was being constructed.
By Mr. O'Reilly - Had seen the workmen place a quantity of clay and stone on the inside of the embankment which witness saw washed away by the waves like so much stirabout. Had spoken to Dr. Dickson about placing the opening where the deeper water was. His own place had been rendered almost useless to him.
Frances Weyms, sworn - By Mr. O'Reilly - Had been acquainted with the inner harbor of Kingston for 25 years. Had seen large schooners at the wharf. Saw large schooners at the wharf at the time it was leased to Messrs. Brassey. There was a shoal out from the Government yard, but it dropped off deep afterwards. It would be more advantageous to have the drawbridge a little further down. The drawbridge was too far up. Had seen railroad iron put on the wharf by the contractors. The wharf was not now as valuable as it was before by a great sight. Could not say that the track made the wharf valueless, but he considered it was an injury. Had not seen vessels at the wharf this year, because there was an impediment. The width of the opening was 28 feet in the clear. Both openings were alike.
By the Judge - The distance between the two openings was about 12 feet. The drawbridge was not there yet.
By Mr. O'Reilly - Had seen the men who put down the embankment first cart in clay, and they then filled in the stone. The stone was not all filled in yet. The clay washed away in a storm, which had the effect of filling up the enclosure. The main drain of Princess street entered inside, and would eventually close it up.
By Mr. Bell - Had been eleven years City Surveyor. Had seen lumber shipped from the wharf three or four years ago. Had seen salt, etc. landed at the wharf. Thought the lumber came from the canal in scows and two-masted schooners; vessels might sail into the wharf before this obstruction was made, but sometimes they would pole in. The opening in the embankment was not exactly opposite Mr. Anglin's wharf; it was opposite to Bay street.
By Mr. O'Reilly - Remembered seeing a house standing out in the water, where there was then a shoal.
By Mr. Campbell - The wharf formed the angle of Bay street.
Charles Greenwood, sworn - By Mr. Thos. Kirkpatrick - Had bought a cargo of wood, and went to the wharf to load when the wind was blowing strongly from the north-west. Had worked from 9 o'clock in the morning to 4 o'clock, and could not get in. The next morning they made another attempt and again failed, and went back through Cataraqui bridge. This was in October last. The vessel drew about 7 feet when loaded.
By Mr. Ross - Thought the captain would have got the vessel in if possible. The wind was blowing fresh at the time. Had no further experience except during the gale alluded to. Believed if the weather had been calm the vessel might have been warped in. The vessel would draw fully seven feet when loaded. A full-sized vessel could not have loaded at the wharf.
Mr. O'Reilly - But you forget that the Mary has loaded at the wharf.
By Mr. Smith - The captain of the vessel was afraid that she would drift ashore.
Capt. Wm. Doran - By Mr. O'Reilly - Had been in four vessels that had loaded at the wharf, viz., the Bond, the Blood, the Forwarder, and the Mary. Had taken 150,000 feet of lumber by the schooner Bond from the wharf in question. Large quantities of lumber used to be placed on the wharf which was a regular shipping depot. Had taken three loads in a fortnight to Oswego, and millions of feet of lumber were shipped in a year. The wharf in question was the principle lumber wharf in the city. In summer a good business used to be done there. Had not shipped lumber since the embankment had been made. Since the embankment had been made he had taken lumber from Kingston Mills and from Kingston. It would be difficult to take a vessel to the wharf through the opening, and the swingbridge would make it worse. Before the embankment was made there was no trouble in getting in. A vessel might run against the bridge or pier. Could not go in at all in the night time unless the night was bright and the wind fair. The swingbridge being there would make the entrance worse. If a stiff wind was blowing he would not like to run the risk of going in.
James M. Dunlop - By Mr. Smith - Mr. Anglin's wharf was easy of access before the track of the G.T.R. was laid. Would not like to try to enter through the opening. Every wind would not allow of going in. A light east wind would be fair. With a northerly wind a vessel could not enter. Knew as a fact that Mr. Anglin required these premises this year for the purposes of his business. The disadvantages of the railroad track being constructed were that it was very inconvenient for a vessel to approach the wharf. Would look upon the drawbridge when constructed as a permanent obstruction. Had been engaged in the lumber business for the last two years and would have rented the wharf owned by Mr. Gay had it not been for this obstruction. Would not now rent the plaintiff's wharf at all. The wharf would not serve for the erection of houses, because the locality would be unhealthy and the space would have to be filled up. Thought that Mr. Anglin shipped five or six millions of feet in a season.
This witness was cross-examined at great length by Mr. Campbell. He stated that it would take a little more time at present to enter in a calm than formerly.
By Mr. O'Reilly - A vessel could not be towed out when a south wind was blowing. She would strike against the pier of the swing bridge.
Mr. Alex Smith - Once commanded the steamer Fire Fly. The schooner Forwarder carried from 100 to 150 thousand feet of lumber from the wharf to Oswego. Would consider that the place was seriously injured by the construction of the track. There would not be safety in sailing in except in easterly winds, which were not prevalent. Formerly it used to be very easy to come to and go from the wharf. It might be calmer now at the wharf, but it was not safer than before. The track was a permanent injury to the premises.
By Mr. Bell - Lumber was now taken to the wharf in question by carts for the purpose of sale. Was not connected with Mr. Anglin in business or in any other way. Would rather hire another wharf than get the one in question for nothing.
By Mr. O'Reilly - Would not take lumber from this wharf for 6d. a thousand feet more. Would rather take it from another wharf for a shilling less.
Mr. Archibald Smith - By Mr. T. Kirkpatrick - Was Harbor Master of the City of Kingston. Had navigated vessels for 15 years on the Rideau Canal. The embankment would greatly injure Mr. Anglin's wharf. There was a shoal near the old stables at the barracks. If the opening had been placed further down it would have given a better chance for a vessel to get through. Vessels would now have to haul out with lines or be towed out by steamers. The enclosure would be liable to be filled up bye-and-bye. The track was a permanent injury to the plaintiff's wharf.
By Mr. Campbell - Could not say whether a vessel trading to Oswego would lose more than one trip in a season.
John McArthur - By Mr. Smith - Had been employed in navigating steam vessels. Would be afraid to take a vessel in at the opening; would be afraid she would strike. Could not get out if a wind was blowing. It was always dangerous to tow a vessel through a bridgeway in strong winds. Business could not be so well carried out at the wharf now as before.
Mr. Thomas Polley - By Mr. Smith - Had navigated vessels for twenty summers. Had loaded lumber at the wharf in question once. Had seen the opening in the embankment yesterday. A vessel might go in with a south-east wind. If the bridge had been nearer Bell's Island a vessel could have got her head to wind better than at present. Considered the plaintiff's wharf to be permanently injured. Had not seen any convenience for hauling a vessel through the opening; there was no post at the bridge. There would be a difficulty with a south-west wind in getting a vessel square to go in.
By Mr. Campbell - The opening was at present unfinished. A vessel would generally lose time in going through the swing bridge, although it might sometimes happen that she would not.
By Mr. O'Reilly - In a wind there would be a great risk in taking a vessel through the opening.
By Mr. Campbell - The difficulty would be diminished by the fact of the swingbridge stretching out when once the vessel had got there.
By Mr. Smith - A vessel could not go in with a north-west wind with safety.
Mr. William Allen - By Mr. O'Reilly - Had seen the track during the time it was being constructed. Two hundred yards of a clay cutting had been emptied into the bay. Thought the plaintiff's property would be destroyed for the purpose of a wharf. It was now of no use. Placed no value on the property as a wharf. The Princess street drain emptied itself near the wharf. Had been chairman of the Committee on Streets and Improvements of the City Council last year. The construction of the embankment was commenced early last fall.
By Mr. Ross - Had seen lumber shipped at the wharf two years ago.
Mr. Edward Wilmot - By Mr. Smith - Was an Alderman of the city. The embankment was a great barrier to the wharf.
This was the case for the plaintiff.
Mr. Ross objected that the action would not lie, and quoted the Act in support of his objections. He urged that the witnesses had shown that the plaintiff's property had been injuriously affected by the construction of the railroad, and that the matter ought to have been referred to arbitration.
The Judge entered the objection, but the case was proceeded with.
For the defence -
Thomas Taylor was called - Had taken soundings previous to drawing plans for the construction of the drawbridge. One opening of the embankment was 39 feet, and the other 38 feet 6 inches as near as possible. The swing-bridge was placed where there was deep water. There was very little difference in the depth of the water. At present a floating crib at the embankment served for ingress to the wharf. The crib could easily be removed. His opinion was that the opening was at the best place. The contractors were Messrs. Morton and Dickson.
By Mr. O'Reilly - Had received orders to construct the opening in question a very short time before the embankment came up to the place.
Emmanuel Gallagher - By Mr. Ross - Was a contractor under Mr. Dickson. Had commenced to frame the crib work for the bridge in August last. Helped to select the site for the opening. The opening was selected because it was opposite the slip and was the deepest water. Had taken soundings in a straight line and in a curve. The floating crib could be removed at five minutes notice. Had seen lumber removed in scows from the wharf in question to the lower wharf. Remembered a steamer going in through the opening to the wharf last fall.
By Mr. Smith - Was subpoenaed to attend by Dr. Dickson. There was no house on the track, but men were supposed to watch at night to open the floating crib for vessels. Had not seen a single sailing vessel go through last fall or this spring. The railway was a benefit to the property inside.
Robert Gaskin - By Mr. Ross - Had been 41 years engaged in sailing. A vessel would have to be hauled in by a line in a north wind. Thought the swing-bridge an excellent plan. It would not take much longer time to go in to the wharf now than formerly. Thought the track was a great benefit to Mr. Anglin's wharf. Would not charge any more freight himself, and did not think that a vessel would lose a trip.
By Mr. O'Reilly - Had not navigated the inner bay except in a small boat.
Wm. McKee - By Mr. Ross - Was the owner of a scow, and had sailed in vessels for 18 years. Had gone to the wharf when it was occupied by the contractors. No ordinary lake vessel could go to the wharf or inside the railway. Vessels were not allowed to carry sail through the Cataraqui Bridge except at their own risk. Inside the track was now one of the best places to anchor in.
Frances Tracy, blacksmith - The depth of water in the years 1854-7, when he was employed as foreman by the contractors, was 9 feet at the point of Anglin's wharf. Large vessels were always lightened to get in.
By Mr. O'Reilly - If vessels came up above Mr. Anglin's wharf they generally went aground.
James Holland, a mariner, said the same wind that carried a vessel through Cataraqui bridge would carry her through the opening in front of the wharf.
Donald Campbell - By Mr. Ross - The class of vessels which went to Anglin's wharf were light and easily handled.
By Mr. O'Reilly - Had never navigated the inner waters of the bay.
John Goodall - By Mr. Campbell - Commanded the Queen of the Lakes. Considered the embankment an advantage, as vessels might make fast to it.
By Mr. O'Reilly - Never navigated the inner waters of the bay, but had laid up his vessel there. His vessel was partly owned by Mr. Morton, one of the contractors.
John Harris, mariner, and John McHenry, mariner, were also called. The latter witness said he would not charge any more for taking a load from Anglin's wharf now than formerly.
Thomas Overend stated that the water lot in question had been offered to him 20 years ago for 50 pounds store pay. He admitted that there was no wharf there at the time.
Robert Kent, mariner, thought he could not get a higher freight from Anglin's wharf in consequence of the embankment.
Henry Woodhouse said he had told masters of vessels that he would open the floating crib at any time.
By Mr. O'Reilly - Dr. Dickson had subpoenaed the witnesses. Left work at 6 o'clock. Did not know that anyone watched the floating bridge at night. Had seen no schooners go through the opening. Did not know that he had seen lumber come from the wharf this spring.
This was the defence.
After lengthy addresses to the Jury by Mr. Campbell and Mr. Smith for their respective clients, his lordship charged the jury, and they retired at seven o'clock.
At five minutes to eight the jury entered the court. The foreman rendered the verdict thus - "Verdict for the plaintiff; for past damages $40; for permanent damages $564."
A verdict for the plaintiff, damages at 141 pounds, was recorded by the Court.
Leave was granted to the defendant to move for a nonsuit as to latter part of the verdict, which if eventually successful will reduce the amount of damages to 10 pounds.
The Court then adjourned, the above case having occupied the entire day.
-From the Straits - A. Bradley got off, pumped out, and a jacket got under her; Ralph Campbell to be brought to Detroit. [Detroit Tribune]