What is the liability of a municipality for obstructing a railway line?
Ontario, Canada
The following excerpt is from Brand Trunk Railway Co. of Canada and the Midland Railway Co. v. Sibad, 1891 CanLII 14 (ON CA):
The municipality may have been remiss in asserting its rights when the old company first created the obstruction. But their liability would be no reason why the remedy should not exist against the actual tort feasors or their successors who continued the obstructing: Maltby v. Chicago Railway, 13 E. & Am. Ry. Cases, 606. The plaintiffs lawfully using the highway cannot be affected by such remissness, but have the right to complain as soon as the injury has occurred, and the complaint is naturally against the company actually using and operating the railway and wrongfully continuing, for the use of the line, the unlawful obstacle, whether it be an erection or an excavation, dangerous to the public use.
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