1897 - T.H.&B. versus the Hamilton and Milton Toll Road Company

 

 

“The T.H. & B. road applied for permission to be relieved from the order directing it to be responsible for the crossings over the roads of the Hamilton & Milton Road Company and asking that the city of Hamilton and the county of Wentworth should bear all expenses in connection with the matter. Mr. Waddell strongly proposed on behalf of the road company against this concession, Mr. Carscallen appearing for the railway company.

Hamilton Times.   January 06, 1897.

The year 1897 had barely begun when the matter of getting traffic across the Desjardins Canal became a source of conflicting agendas among a variety of vested interests.

The Toronto, Hamilton and Buffalo Railway had been built through the City of Hamilton in 1895, notably with the construction of a long tunnel under Hunter Street West and the addition of a handsome station building on Hunter Street East, just east of James street.

It had, of course, always been the intention to connect Hamilton and Toronto via the T.H. & B. Railway and by 1897 that effort was underway.

There was a problem at the Desjardins Cut, the man-made gap in the Burlington Heights dug out in the 1850s. The gap allowed the Desjardins Canal to enter Coote’s Paradise from the Bay, while requiring the promoters of the Great Western Railway to have a swing bridge to allow large vessels to pass through on the way to Dundas.

For overland traffic, including farmers taking their wares to Hamilton Market, the gap would be crossed on top of the Heights via a High Level Bridge to be built and paid for by the railway company.

After a few incidents with poorly-constructed High Level Bridges, and after the Desjardins Canal no longer was used by large ships with tall masts, the Hamilton and Milton Toll Road company had built a low level bridge for the use of travelers who would pay for the privilege.

Then, the T.H.&B. had to build a bridge across the canal for its railway line, while the line itself would block the toll road and its bridge making them no longer of any use to the toll road company.

The legal maneuvers and outright hostility arising from the situation came to a head in early 1897. The T.H. & B. railway attempted, unsuccessfully, to rid itself of all obligations to the toll road company.

The tangled web of agencies overlapping at the Desjardins Canal included, not just the toll road company and the T.H. & B. railway, but also the City of Hamilton, Wentworth County, and above them all the federal government in Ottawa.

By early 1897, the T.H.&B. company were ready to pay for the construction of a new High Level Bridge above the canal. The City of Hamilton, anxious to have the bridge built allowing traffic in and out of the city, decided to start work on the approaches to the bridge.

However, Mr. Waddell owner of the Hamilton & Milton Toll Road Company, objected strenuously:

“The morning City Clerk Beasley received, from Mr. J.N. Waddell, a lawyer acting as manager of the Hamilton & Milton Road company, the following letter:

‘The writer today was advised by your Street Commissioner, Mr. McLoughlin, that a staff of city employees had commenced work at the approaches to the new high level bridge near Desjardins canal. Mr. McLoughlin reported that the corporation teams should use the York street gate free of charge or that the trips should be charged and if the city or others are liable, the amounts would be paid. Our company desires that each team should pay each time passing.

‘As you are aware, the new order of the Railway Committee of the Privy Council has not been issued and the Hamilton & Milton Road Company protests against any work being proceeded with until the said order is made and the conditions thereof carried out in the event of your corporation proceeding with the said work before compensation is made to our company for their roads or portions thereof, our company will institute such proceedings as it may deem advisable.”

“The city has 15 men working on the high road near the Valley Inn and teams have to pass the toll gate occasionally.”¹

¹Hamilton Times.   January 22, 1897.

The lawsuits and proposals for injunctions were all parts of posturing among interested parties to the dispute:

 “There is still a possibility of a legal fight over the construction of the proposed high level bridge at the Desjardins Canal. The morning Waddell & Waddell, acting for the Hamilton & Milton Road Company entered suit against the T.H. & B. Railway for an injunction to restrain the building of the high level bridge which, it is claimed, would be a violation of the Act passed by the Dominion Government in 1874 closing up the old high level road.

“The plaintiffs will apply for an interim injunction after the meeting of the Railway Committee at Ottawa on Friday night.”²

²  Hamilton Times.   February 15, 1897.

It would take until February 19 1897 for the Railway Committee of the Privy Council to hold hearings into the issues arising from the building of the Toronto spur of the T.H.&B. Railway across the Desjardins Canal.

The Hamilton Times covered the proceedings in some detail:

“Ottawa, Feb. 19 – The Railway Committee of the Privy Council met today and will meet again tomorrow. One of the most important cases on the docket was the Toronto, Hamilton and Buffalo Railway crossing near Hamilton, in which a reversal of the company’s decision was sought, to allow greater compensation of the toll road company.

“The case was held over till this afternoon’s sitting. In December last, the Railway Committee made an order directing that $60,000 be paid in equal shares by those interested parties to the road company for that portion of the road affected by the railway improvement. The Toll Road company appears, from the statement of its counsel, to be a family affair, the property of the Waddells. Mr. Waddell argued that the compensation fixed by the order was inadequate. He said the company would accept $76,000 for the whole of the route, some eleven miles, or would submit the claim to arbitration.

“For the City of Hamilton, Mr. MacKelcan endeavored to show that the toll road had been a regular bonanza for the Waddells. It had originally cost only $35,000, and every dollar of it had been recouped to them in fifteen years, besides large profits being earned through a system of excessive tolls by which the company had been robbing the people.

“The Chairman, Mr. Blair, asked if anyone would argue against the jurisdiction of the committee to make such an order.

“For the County of Wentworth, Mr. J.K. Kerr, Q.C., only asked, however, to a technical change in order to make the road company’s remuneration of toll rights complete and permanent.

“Dr. D’Alton McCarthy, Q.C., objected to his clients, the T.H. & B. Railway Company, being charged $20,000 for the purpose of the toll road in question. What the railway people wanted was a crossing of the road, and to that end was satisfied to build an overhead traffic bridge and approaches as directed by the committee. His company was not interested in the abolition of the medieval system of toll roads as were the municipalities of Hamilton and Wentworth.

“Counsel for the road company and the railway company were arguing upon the loss which the former would sustain by surrendering its route within the town limits of Hamilton, when Mr. Blair intervened with the hint that as to the $60,000 offered, the toll road people might go further and fare worse. He suggested a friendly compromise between the parties, and to that end adjourned the committee until tomorrow morning.

                        TODAY’S DISCUSSION

“Ottawa, Ont., Feb. 20 – (Special) – “The Railway committee of the Privy Council met again to consider the Hamilton case. Mr. McCarthy made a long argument to show that the committee should not assess on the T.H. & B. Company. If any compensation was due, it should be determined by the courts.

“Mr. Blair asked Mr. Waddell if the Toll Road Company would accept $60,000 as complete extinguishment of their rights, and without having any right to collect tolls.

“Mr. Waddell said he would accept it on certain conditions. One was that the city should obtain an act from the Legislature relieving the company from the maintenance of the bridge over the Desjardins Canal; and that they should be entirely relieved of the maintenance of any of the roads; also that the low level bridge, which was their property, should not be removed. ‘Let us save something from the wreck,’ concluded Mr. Waddell.

“Mr. McCarthy said that the railway company would agree to the order of a couple of actions which had been taken against the company by the city and the Toll Road Co. were stopped.

“Mr. Waddell said that the Road Company would accept of $400 to pay the costs, and then abandon the suit.

“Mr. Carscallen refused to pay this, but finally on the suggestion of Mr. Blair, he accepted $200 and this closed the case.

“The committee will make out an order and show it to all parties before putting it in force.³

³ Hamilton Times.   February 20, 1897.

A delegation of interested individuals had made the trip from Hamilton to Ottawa for the meetings of the Railway Committee of the Privy Council. On return, there were expressions of general acceptance of the decisions made:

 

 “There is no doubt now that the conditions on which the low road on York street is to be closed and the new high level road opened have finally settled. The Mayor and aldermen, who are back from Ottawa, have little to add to what the Times reporter wired on Saturday. The high bridge and approaches must be built by the T.H. & B., as heretofore ordered. The City of Hamilton, the county of Wentworth and the T.H.& B. railway must each pay $20,000 to the Hamilton & Milton Toll Road Company, according to the terms of the last order. The Toll Road Company has agreed, reluctantly, to accept the &60,000 in full extinction of all its rights to collect toll on any and all portions of the road, and for $200 to be paid by the T.H. & B. as costs, the road company drops all proceedings against the railway company. The city of Hamilton becomes owner of the parts of the toll road in the city, and the county gets those parts in the county. The county also carried its point – an important one – in regard to the parts of the toll road which are on private property. All such parts revert to the county and will in no case go back to private owners. The Toll Road Company, of course, is relieved of the necessity of keeping up any part of the road or bridges. The order will go into effect as soon as the high bridge and road are completed. The deputation speaks highly of the Railway Committee and the assistance given by Mr. A.T. Wood, M.P.”⁴

⁴ Hamilton Times. February 22, 1897.