masks, but that it was his duty also to point out to such young people the existence of the danger and to insist on their wearing the mask. Since he had failed to do this, the jury might well say that he had been guilty of negligence." In the present case I can find no neglect of duty which the defendants owed to the plaintiff, and, with deference, am of opinion that the plaintiff has wholly failed to establish any right of action. The appeal, in my judgment, should be allowed, and the action dismissed with costs. D. C. 1908 LAWSON บ. PACKARD ELECTRIC Co., LTD. Clute, J. A. H. F. L. [IN THE COURT OF APPEAL.] BECK MANUFACTURING COMPANY V. VALIN AND THE ONTARIO Water and Water Courses-Rivers and Streams Act-District Judge-Order The An application was made by the owners of certain constructions and improvements on a river to the district Judge, under R.S.O. 1897, ch. 142, sec. 13, for an appointment to fix a rate to be paid for tolls in respect of logs driven some three or four years previously, at which time no rate had been fixed. The district Judge refused to make the appointment. applicant then applied to a Judge of the High Court for an order of mandamus requiring the district Judge to hear evidence and make an order fixing such tolls, which was refused, on the ground that the matter was res judicata under a former decision of a Divisional Court. (See 3 O.W.R. 333 and 10 O.L.R. 193.) The applicants then appealed to a Divisional Court, who dismissed the appeal granting leave to appeal to the Court of Appeal, who also dismissed the appeal, Garrow, J.A., dissenting. THIS was an appeal from the judgment of the Divisional Court. The applicants, the Beck Manufacturing Co., applied to Mabee, J., in Chambers, on January 8th, 1907, for an order of mandamus requiring Judge Valin, the district Judge of the district of Nipissing, to hear evidence for the purpose of fixing tolls which might be charged by the applicants in respect of logs driven on Post Creek in the township of Nipissing in the year 1903, and to make an order fixing such tolls. The applicants also applied for an order calling upon the Ontario Lumber Co. to shew cause against such order and for the payment by them of the costs of the application. The plaintiffs, the Beck Manufacturing Co., had, in 1903, C. A. 1907 Jan. 25. Nov. 2. C. A. 1907 FACTURING COMPANY บ. VALIN AND THE ONTARIO LUMBER CO. applied to the said district Judge, and obtained an order fixing the tolls to be paid for logs floated down a stream, called Post BECK MANU- Creek, without specifying whether it was to be applicable to logs floated down in the past as well as in the future, or in the future only. On appeal to a Divisional Court, the order was set aside, the Court being of the opinion that it should have been limited to logs to be floated down after the making of the order; but that the district Judge had not had the necessary evidence before him on which he could make a proper finding, and that he had not taken into consideration certain matters required by the statute; and the order was set aside without prejudice to a further application being made by either party to the Judge to fix the tolls to be taken for the future by the plaintiffs upon the further necessary evidence. The plaintiffs then applied to the district Judge, putting in further evidence, and obtained a new order fixing the tolls, as the defendants claimed, to logs to be subsequently floated down. The plaintiffs claimed that under this order they were entitled to be paid for logs floated down prior to the making thereof, and, on the defendants' refusal to pay therefor, brought an action to recover the amount, which was tried before MacMahon, J., on March 6th, 1905, who held that he was bound by the previous judgment of the Divisional Court, which he was of the opinion. limited the recovery to tolls for logs floated down after the making of the order, and he dismissed the action. An appeal was then had to a Divisional Court, and on June 1st, 1905, judgment was delivered, reported in 10 O.L.R. 193, affirming the judgment of the trial Judge. An appeal was then had to the Court of Appeal, and on June 16th, 1906, judgment was delivered, reported in 12 O.L.R. 163, dismissing the appeal. The application for the further order was then made and the proceedings for a mandamus were taken. A. B. Morine, for the applicants. A. G. F. Lawrence, for the Ontario Lumber Co., respondents. The judgment of the learned Judge was as follows: January 25. MABEE, J.:-If the proceedings are not in proper form the applicants may amend the same as they may be advised, if this becomes necessary. The respondents' counsel did not object to this. C. A. 1907 FACTURING v. VALIN AND THE ONTARIO LUMBER CO. If the construction of the section of the Act in question, R.S.O. BECK MANU1897, ch. 73, sec. 13, was open to me, I should have no hesitation in holding that the district court Judge's finding or order fixing the tolls need not be limited to future tolls. I think it is perfectly open, once the amount is fixed, for recovery to be had for past as well as future tolls. I think, however, I am clearly bound, as was the district court Judge, by the judgment of a Divisional Court in Re Beck Manufacturing Co. and Ontario Lumber Co. (1904), 3 O.W.R. 333. Mr. Morine argued with much force that this decision had been overruled by the Court of Appeal in Beck Manufacturing Co. v. Ontario Lumber Co. (1906), 12 O.L.R. 163. The question decided by the Divisional Court was not expressly before the Court of Appeal, and, notwithstanding that the judgment of the former has been greatly shattered, it still stands. In this view, I have no alternative but to refuse the mandamus asked for. The respondents are entitled to their costs of opposing the motion. From this judgment the applicants appealed to the Divisional On January 25th, 1907, the appeal was heard before FALCON- An appeal was then made to the Court of Appeal; and on May 8th, 1907, was heard before Moss, C.J.O., OSLER, GARROW, MACLAREN, and MEREDITH, JJ.A. Mabee, J. A. B. Morine, for the appellants. In dealing with this matter, the rights enjoyed prior to the passing of the Act 47 & 48 Vict. ch. 17 (O.), now R.S.O. 1897, ch. 142, and the effect of that Act must be considered. Prior thereto the right to float logs down streams, etc., was common to all persons. The Act deals with improvements made on streams. Section 1 makes the user subject to provisions of the Act, one of which is that where improve C. A. 1907 FACTURING COMPANY v. VALIN AND THE ONTARIO LUMBER CO. ments have been made, the user is made subject to the payment of reasonable tolls-that is, a liability to payment, to the persons BECK MANU- who made the improvements: sec. 11; and by sec. 19 the proper mode of ascertaining the amount is by charging a reasonable toll per log. The fixing of the tolls is merely the method of arriving at the amount to be paid. It does not create the liability, and is not, therefore, a condition precedent to liability, but merely to recovery in an action. It is an alternative remedy. The right to have the tolls fixed is not limited to the owner of the improvements; but the respondents had such right, and it was their duty to have had them fixed before they used the stream, and in using the stream without having the tolls fixed, they impliedly agreed to pay the tolls when fixed, and are estopped from denying liability: Burnett v. Lynch (1826), 5 B. & C. 589. In the position they are taking they are guilty of fraud. The district Judge, by his first order, attempted to adjudicate as to what transactions in point of time the tolls should apply. This was beyond his jurisdiction, as it was a matter to be decided in an action, and the Divisional Court properly set the order aside. This is as far as the Divisional Court could go; anything beyond that was obiter dictum. The applicants have a perfect right to have the tolls fixed for 1903: see Beck Manufacturing Co. v. Ontario Lumber Co. (1906), 12 O.L.R. 163, and the judgments of Osler and Garrow, J.A. They are, therefore, entitled to a mandamus to compel the district Judge to do so. G. F. Shepley, K.C., and A. G. F. Lawrence, for the respondents, the Ontario Lumber Company. The statute does not deprive the respondents of their right to use the stream; all it says is that the applicants might, if they thought fit, charge tolls for such use; but if they decided to do so, they must have the tolls fixed; no duty is imposed on them to do so: Klokke v. Stanley (1884), 101 Ill. 192; People ex rel. Waters v. Commissioners of Emigration (1861), 22 Howe Pr. N.Y. 291. The statute imposes a specific remedy, namely, a lien on the logs floated down, and there is no right of action. The tolls must be fixed prior to the logs being driven down, otherwise there could be no lien. The tolls, when fixed, are to be for all time, subject to variation. The district Judge, by his order of January 25, 1904, attempted to fix the tolls for a time anterior to the date on which they were fixed. The ONTARIO LAW REPORTS. Divisional Court, on appeal, held that this was beyond his juris diction, and and set aside the order. The applicants acquiesced in this, C. A. 1907 25 applied for an order in the terms of the judgment, viz., as to BECK MANUlogs to be driven down subsequently thereto, and he made his order on this basis. The applicants are, therefore, bound by the judgment of the Divisional Court. The matter is res judicata. A mandamus only lies where the object is to admit or restore a person to an admitted right. Here at the most the right was a doubtful one. Where the object is to enforce an alleged duty under a statute the duty must be clear and unequivocal. The Judge, therefore, acted properly in refusing to fix the tolls, and the mandamus was properly refused: Mackey v. Sherman (1885), 8 O.R. 28; Re Beck Manufacturing Co. and Ontario Lumber Co., 3 O.W.R. 333. November 2. Moss, C.J.O.:-From whatever point of view the proceedings to obtain a mandamus herein and this appeal may be regarded, they virtually resolve themselves into an attempt to substitute this Court as an appellate tribunal in the place of a Divisional Court of the High Court; and that too in a matter which as between the substantial litigants should be regarded as res judicata. FACTURING บ. VALIN AND THE ONTARIO LUMBER Co. It is very apparent-indeed, it is not denied that the applicants' object is to obtain an opinion from this Court whether the district Judge upon being applied to to give an appointment to fix a rate to be paid for tolls in respect of logs driven in the years 1902 and 1903 should have disregarded the decision and order of the Divisional Court pronounced in respect of the same logs and reported in 10 O.L.R. 193, or whether he should have held, as he did, that he was bound by that decision to take no further steps. The same question between the same parties came before another Divisional Court, and it was held that the former decision was final. And unquestionably no appeal lies to this Court from a decision of a Divisional Court on an appeal from a county or district Judge under the Rivers and Streams Act, R.S.O. 1897, ch. 142. The later decision of the Divisional Court having been given in an action in the High Court did come before this Court by way of appeal and was affirmed, but for reasons appearing in the report, 12 O.L.R. 163, it was not necessary to deal with the question now sought to be raised. |