An obligation to "keep in proper repair" a portion of a roadway does not require a party to upgrade the road's character (e.g., paving an unpaved road) simply because the municipal authority improves the surrounding roadway.

The Lord Chancellor:-

This is an Appeal from a judgment of the Appellate Division of the Supreme Court of Ontario affirming, with a variation on a minor point, an order of the Ontario Railway and Municipal Board. The question in the case which presents real difficulty arises on the construction of an agreement made on 4th September 1899, and confirmed by the Toronto Suburban Street Railway Company Act, 1900 . This agreement was made between the Corporation of the township of York, within the limits of which was at that time the land on which part of the railway was situate, and the Railway Company. In 1909 this land was included within the municipal limits of the respondents, who succeeded to the rights and obligations of the other corporation. Under the agreement referred to the Railway Company was given the right to construct, maintain, and operate "an iron or steel rail or tramway, single and double tracks," subject to certain conditions, along certain roads and streets, including portions of Bathurst Street and Davenport Road, within the land referred to, the motive power to be either electrical or horse power, unless the Corporation should consent to some other power. The Township Engineer and the Town Council were to prescribe the location of the tracks. These tracks when laid on any portion of the travelled road were, so far as practicable, to conform to the street or road, and were to be laid flush with the streets so as to cause the least possible impediment to traffic. Clause 6 was in these terms :-

"The Company shall, where the rails are laid upon the travelled portion of the road, keep clean and in proper repair that portion of the travelled road between the rails and for eighteen inches on each side of the rail or rails lying on or being next to the travelled road, and in default the township may cause the same to be done at the expense and proper cost of the Company."

By clause 20 all persons using the street were to be at liberty to travel upon any part of the roadway occupied by the railway and in the same manner as upon other portions of the highway. The agreement also enabled the Corporation to take up any part of the street or road along which the railway was constructed for the purpose of altering the street or road grade, and for other purposes, which were to include all those which were within the province and privileges of a Municipal Corporation. There was also a clause enabling the Corporation, in case the Company should neglect to keep their track or roadway in good condition, according to the terms of the agreement, or to have the prescribed repairs made, to give notice to the Company, and in default of the latter executing the repairs, to effect them, and recover the cost from the Company, and to determine their rights under the agreement. The rights and privileges of the Railway Company under the agreement were to endure for twenty years.

In April 1912 the Respondents applied to the Ontario Railway and Municipal Board, which had power and authority to deal with such matters vested in it under the Ontario Railway Act, 1906 , for an order directing the Appellant Company to-

"reconstruct and put in a proper and sufficient state of repair its tracks and substructures in Bathurst Street and Davenport Road in the City of Toronto, and eighteen inches on each side thereof."

The controversy which arose on this application was substantially as follows. The roads in which the rails had been originally laid were at that time mud roads or at all events unpaved. The respondents at the date of the application desired that these roads should be reconstructed and to that end dug out and paved with blocks. The appellants did not contest their liability to keep the portion of the roads between the rails and for eighteen inches on each side of them in repair but they maintained that they were under no obligation to reconstruct this space so as to make it a roadway of an improved character, such as the respondents were desig