(Probably similar odds for the Rail Deck Park too)
As it now stands, the cupboard is bare, but once ownership of the USRC is made clear, the City will be in a position to 'lease' lots for development, if not sell, but selling may be problematic if the Esplanade and Tripartite Statutes are enforced, or the interpretation of such by the SCC:
(This is a legal synopsis, the original Act is linked prior in this string in its entirety)(steveintoronto)
Supreme Court of Canada
Grand Trunk Railway Co. v. City of Toronto, [1910] S.C.R. 613
Date: 1910-02-15
The Grand Trunk Railway Company of Canada and the Canadian Pacific Railway Company Appellants;
and
The City of Toronto Respondent.
(Toronto Viaduct Case.)
1909: November 29, 30; 1910: February 15.
ON APPEAL FROM THE BOARD OF RAILWAY COMMISSIONERS FOR CANADA. (Who had ruled in the City's favour prior, and this decision reinforced their Parliamentary power to doing so)(Edit by Steveintoronto)
Prior to 1888, the Grand Trunk Railway Company operated a portion of its railway upon the "Esplanade," in the City of Toronto, and, in that year, the Canadian Pacific Railway Company obtained permission from the Dominion Government to fill in a part of Toronto Harbour lying south of the "Esplanade" and to lay and operate tracks thereon, which it did. Several city streets abutted on the north side of the "Esplanade," and the general public passed along the prolongations of these streets, with vehicles and on foot, for the purpose of access to the harbour. In 1892, an agreement was entered into between the city and the two railway companies respecting the removal of the sites of terminal stations, the erection of overhead traffic bridges and the closing or deviation of some of these streets. This agreement was ratified by statutes of the Dominion and provincial legislatures, the Dominion Act (56 Vict. ch. 48), providing that the works mentioned in the agreement should be works for the general advantage of Canada. To remove doubts respecting the right
[Page 614]
of the Canadian Pacific Railway Company to the use of portions of the bed of the harbour on which they had laid their tracks across the prolongations of the streets mentioned, a grant was made to that company by the Dominion Government of the "use for railway purposes" on and over the filled-in areas included within the lines formed by the production of the sides of the streets. At a later date the Dominion Government granted these areas to the city in trust to be used as public highways, subject to an agreement respecting the railways, known as the "Old Windmill Line Agreement," and excepting therefrom strips of land 66 feet in width between the southerly ends of the areas and the harbour, reserved as and for "an allowance for a public highway." In June, 1909, the Board of Railway Commissioners, on application by the city, made an order directing that the railway companies should elevate their tracks on and adjoining the "Esplanade" and construct a viaduct there. Held, Girouard and Duff, JJ. dissenting, that the Board had jurisdiction to make -such order; that the street prolongations mentioned were highways within the meaning of the "Railway Act"; that the Act of Parliament validating the agreement made in 1892 was not a "special Act" within the meaning of "The Railway Act" and did not alter the character of the agreement as a private contract affecting only the parties thereto, and that the Canadian Pacific Railway Company, having acquired only a limited right or easement in the filled-in land, had not such a title thereto as would deprive the public of the right to pass over the same as a means of communication between the streets and the harbour. [...continues at length...]
https://www.canlii.org/en/ca/scc/doc/1910/1910canlii34/1910canlii34.html
So what in hell happened between then and now? Has the SCC overturned that ruling? I can find no evidence of such. Has the Parliament of Canada written a new Act to alter the terms and conditions stated in prior Statutes? I can find none.
So someone, somewhere had best have a damn good story as to how the City is now in the situation it is, evidently not able to clearly state: (gist) "We own that property now, and have since it was granted by the Parliament of Canada to the Legislature of Upper Canada on behalf of the Town of York, and later modified by the ParlofCan to permit the *railway* use of that RoW as an "easement" but the City retaining ownership in perpetuity".
{...Sound of Crickets Chirping...}
Edit to Add: Being Devil's Advocate, I've been researching the legalities of "easements" (as stated in both SCC and Ontario Statutes as that pertains to the Esplanade).
It's interesting as to the City perhaps violating SCC and other rulings in selling land that *perhaps* legally shouldn't have been sold, (it was granted by Parliament with the condition of "for Public Use") and in doing so:
Prescriptive Easements in
Ontario. Pursuant to the Real Property Limitations Act, R.S.O. 1990, c. L.15, a
prescriptive easement is established by a 20 year use.
Prescription resembles adverse possession but is doctrinally different because an
easement involves the right to use and does not involve a right of possession ...Mar 24, 2015
Prescriptive Easements in Ontario | William Poulos Law
www.williampouloslaw.com/blog/uncategorized/prescriptive-easements-in-ontario/
But there's a problem there....that can't apply to Federally deeded land, and even if it did pertain, the railways *still* have no ownership claim on the land, let alone the air-rights of the USRC. The railways can't use that as a claim for 'easement in perpetuity' and air rights, not the least as unless they are running tracks through that air-space, they have no claim of easement in that sector to begin with.
Hello? Where are the City's solicitors? Did Rob Ford fire all of them too? Hide the cracks?
PS: I have come across a very limited 'air-right' granted for railway easement on the Esplanade (USRC in effect), I can't provide reference right now, but it is very limited, on the order of tens of feet.
Maybe ORCA could miniaturize their project? And put it under Rail Deck Park? The Mole People could live there...
jennifer keesmaatVerified account@jen_keesmaat 9h9 hours ago
