Application of the Municipal Corporation of the Township of York, Ont., for an Order requiring the construction of an overhead bridge over tracks and right of way of the Canadian National Railways at a point where the northern division of said railway crosses Eglington Avenue, Township of York.

File: 36208.

JUDGMENT

McLean, Assistant Chief Commissioner:

This matter is concerned with an application made by the Township of York for an order apportioning the cost of proposed bridge over the Canadian National tracks (Newmarket Branch) at Eglington avenue and which was heard at Toronto on November 18, 1929.

By consent, the matter stood for further negotiations. The Board now has before it a memorandum signed on behalf of the parties. There is attached thereto a general plan which is approved by them and is satisfactory to the Board's Engineering Department. The question of contribution from (the Grade Crossing Fund is raised. The following is excerpted from the memorandum:

"The bridge which it is proposed to replace was built by the Canadian National Railways many years ago about 200 feet south of the road allowance of the concession line known as Eglington avenue, and at a point where there was no road at either end of the bridge, traffic, therefore, had to trespass for many years over private property to use the bridge.

"The present wooden bridge now being at the end of its life, it is proposed to construct an up-to-date concrete bridge as per plans attached, at an estimated cost of $74,100, at a point midway between the present bridge and the concession line known as Eglington avenue. This is the most economical site and will result in a considerable saving to the Canadian National Railways as well as the township.

"The concession line known as Eglington avenue has never been closed and it is quite possible for the township to so grade the road as to get a grade crossing with the Canadian National Railways tracks with easy approach grades at a very reasonable cost but as this would be a retrograde step and we think futile on our part to ask your honourable body to give its consent.

"A bridge built on the site chosen will be more economical by far than at a site on Eglington avenue concession line as to cost of bridge proper grading, filling, property and property damage for several hundred feet each way from the bridge.

"Eglington avenue is an original concession line which extends across York county from east to west and passes through East York township, the town of Leaside, the city of Toronto, the village of Forest Hill, and the township of York and is now a tourist highway and, therefore, is used by a considerable volume of traffic other than which originates in this municipality."

By Order No. 32668, of May 7, 1923, the Board dealt with a situation involving subway protection on Bloor street east (Danforth avenue extended.) The extension in question was an original road allowance which had never been closed, and the Board held that the subway protection in question came within the scope of the Grade Crossing Fund ; and order was made accordingly. Reference may also be made to Board's Order No. 43790, of November 8, 1929, whereunder contribution was made from the Grade Crossing Fund in aid of the reconstruction of bridge over the tracks of the Canadian Pacific Railway at Chapleau, Ont.

The present situation is parallel; and I am of opinion that a grant may be made from the Grade Crossing Fund, subject to the statutory limitation. The cost of the road surface on the bridge and maintenance of same will be on the municipality.

It is represented, on behalf of the applicants, that the question of the distribution of the balance of cost can be worked out by mutual arrangement between the railway company and the township of York. This portion of the distribution will, therefore, stand for arrangement by mutual consent. If, however, any question in regard to distribution arises, the action which is now being taken is without prejudice to such application, if any, as may be made by either or both of the parties.

Chief Commissioner McKeown concurred.

June 25, 1930.

Railways: C.N.Rys.