Judgment.

The Assistant Chief Commissioner:

The Grand Trunk Railway Company's station at Orillia, which was located east of Front street adjoining the connection of its line from Barrie, which was the old North Western railway, with its Midland Division was destroyed by fire in March, 1916. Since that time the only passenger station accommodation that has been afforded those travelling on the Grand Trunk railway to or from Orillia has been two superannuated passenger coaches. The matter has been brought to the attention of the Board by the town of Orillia. We held our sittings to hear the parties in this matter at Orillia so as to enable us to have an opportunity of walking over the ground and considering the location at the foot of Peter street suggested by the town, and the location of the present site where the railway company desires to rebuild.

By agreement, dated 1st February, 1871, made between the Toronto, Simcoe and Muskoka Junction Railway Company—now the Northern Division of the Grand Trunk—and the village of Orillia, the municipality gave a grant to the railway company of $12,500, and the railway company, among other things, agreed to erect and maintain a passenger and freight station upon grounds fronting on King street, on Gardner's survey, within the limits of the said corporation with the centre line of the station ground on the centre line of Peter street produced south, and also shall work and run the said railway, during the present year, from the said station in regular traffic connection with the town of Barrie and the city of Toronto.

A station was actually established on the location fixed by that agreement. Subsequently that station was abandoned for passenger purposes and a station on the line to Midland used, and later the station at the junction of the Northern and Midland was constructed and used for many years until it was destroyed by fire. The station at the junction of the Northern and Midland was apparently located with the consent or at least the connivance of the municipal council of Orillia. The agreement was not before us at the sitting, and copies of it and the proceedings of council in connection with it wrere sent the railway company. Its answer is contained in a letter from Mr. Chisholm, dated May 22, which is in part as follows:—

A perusal of the agreement of 1st February, 1871, and Mr. Frank Smith's letter of February 23, 1870, will show that the purpose of the bonus was the bringing of the line of the T.S. & M.J. railway into the village of Orillia, and the reference to the building and maintaining of a station is merely for the purpose of assuring the diversion of the railway's line into the village. However this may be, the dealings of the parties since have undoubtedly released the company from any obligation there might be under the agreement. I am referring not only to the proceedings, copies of which you have sent me, but also to the terms of a lease which was granted by the Grand Trunk Railway Company to the town of Orillia, dated 30th June, 1898, of certain water lots. This lease was from the 1st July, 1898, to the 31st December, 1918, but came to an end, I understand, in 1913, on account, as I am told, of the Crown granting the lands to which the Grand Trunk had claimed title to the town or the Canadian Pacific. The lease, however, contains this clause:

'20D. The lessees hereby, in consideration of the granting of this lease, release and discharge the Toronto, Simcoe and Muskoka Junction Railway Company and the Midland Railway Company of Canada, and the Company, and all other persons or parties from the operation, in so far as tney might still be effective, of all convenants by the said the Toronto, Simcoe and Muskoka Junction Railway Company, entered into by and under a certain deed of agreement between the lessees and the said the Toronto, Simcoe and Muskoka Junction Railway Company, bearing date the first day of February, 1871, with respect to the erection and maintenance of a passenger and freight station at Orillia aforesaid, as therein set forth, and that as fully and effectually so far as such covenants are concerned as if the same had never been entered into.'

Undoubtedly the making of the lease under the conditions then existing and under the seal of the parties was sufficient consideration for this release and it disposed of any question under the Agreement of 1st February, 1871.

The town has not had an opportunity of answering the railway company's contention; but, in view of the conclusion I have come to in this matter it may not be necessary for the question of the company's responsibility under the agreement to be further considered.

The Engineering and Operating Departments of the Board have had the question before us under consideration and they are satisfied that from the point of view of both construction and operation it would be quite feasible to have a station opposite the end of Peter street. After hearing what was submitted at the sitting at Orillia and examining the layout on the ground, I am satisfied that the end of Peter street is the best place in the public interest for the station. I have come to this conclusion quite irrespective of the legal effect, if any, of the agreement of 1871.

The Board's Chief Operating Officer, Mr. Spencer, having been asked to consider the objections to a station at Peter street, from an operative point of view, reports on April 30, as follows:—

I have looked over the minutes in this case, and made a study of the plan.

The new station can be built on the site of the old one without any rearrangement of tracks. I understand plan 'D; has been abandoned.

I would say that the rearrangement of tracks, as shown on plan 'B' could be made for approximately $19,000 or $20,000, against which there might be a little salvage from tracks to be taken up.

To place the station at the foot of Peter street as shown on plan 'B' is, I understand, the desire of the town, which if placed would involve teaming over passenger main lines to get to the freight shed, whether the entrance was via West street, King street, or Front street. This, in my opinion, is decidedly objectionable. I think a revision of the layout could be made and place the passenger station in the block desired, a little to the west side of Peter street. The freight shed could be put at the corner of King and West streets which I have endeavoured to show in red on the plan. This would involve moving the stock pen which is now located at the corner of West street. It might be placed on one of the short tracks east of Front street.

Without having the details of measurement, etc., I would say that the track rearrangement to cover this proposition would cost about $6,000.

To operate, as per plan 'B' would, as the G.T.R. point out, involve the separation of the passenger movement from the freight at either end of the yard. To carry this out would not cost any more than is being spent at present as the freight trains could be made to let themselves in and out of the yard without the employment of additional men for that purpose.

We cannot fix details of the layout at Orillia without giving the railway company an opportunity to submit further plans. In my opinion, the railway company should be informed that the Board has decided that the new passenger station is to be located adjacent to the end of Peter street, and be requested to file with the Board, within thirty days, a plan showing the station as determined by the Board and the location of other facilities and tracks that will be most convenient in view of the location of the station as the Board has determined.

Ottawa, May 23, 1917.

Mr. Commissioner Goodeve concurred.