Lord Warrington of Clyffe.-

This is an appeal from an order of the Appeal Division of the Supreme Court of New Brunswick, dated 22nd April 1927, varying in certain particulars, but otherwise affirming an award of Le Blanc, J., sitting as an arbitrator under the New Brunswick Electric Power Act, 1920 (10 Geo. V, c. 53).

There is also before the Board a cross-appeal (brought by leave) against so much of the order of the Court of appeal as varied the award in the appellants' favour and against that part of the same order which directed the respondents to pay interest on the principal sum awarded.

The award was made on a claim by the appellants for compensation in respect of certain lands expropriated by the respondents for the purpose of their statutory undertaking.

The respondents are virtually a department of the Province of New Brunswick and were incorporated by the Act above referred to for the purpose of constructing, maintaining and operating works, machinery and plant for generating electrical energy from (amongst other things) water power and for transmitting the same. They were given extensive powers of expropriation, and it is not disputed that such powers were validly exercised in the present case.

With regard to compensation, it was provided that a notice specifying generally the property taken, and signed as directed by the Act, should be filed in the office of the Registrar of Deeds for the county in which the property is situate, and such property should thereupon become and remain vested in the Commission, and after the filing of such notice, a notice should be served upon the owner of the property which should contain (a) a designation of the matter or thing so to be taken sufficient to identify the same, and (b) a declaration of willingness to pay some certain sum as compensation for such matter or thing so to be taken. This notice was to be accompanied by the certificate of a sworn surveyor or civil engineer disinterested in the matter to the effect (amongst other things) that he knows the land, matter or thing taken and the amount of damage likely to arise from the exercise of the powers, and that the sum offered is fair compensation for the land taken and for the damages afore said.

It was further proved that, in default of acceptance of the sum offered, within the time fixed by the Act, the Commission might, in such a case as the present, apply for the assessment of damages to a Judge of the Supreme Court, and upon the application being made the Judge should by order designate himself the sole arbitrator, and the Judge so designated should thereupon become and be the sole arbitrator for determining the compensation to be paid.

It was expressly enacted that if the sum awarded should not be greater than that offered, the costs of the arbitration should be borne by the owner.

An appeal was allowed upon any question of law or fact to the appeal division of the Supreme Court, and it was provided that upon the hearing of the appeal, the Supreme Court, if the question were one of fact, should decide the same upon the evidence taken before the arbitrator as in the case of original jurisdiction.

The Musquash river, which flows into the Bay of Fundy, about 17 miles S. W. of the city of St. John, consists of two branches, the east branch and the west branch, which unite about seven miles about the river's mouth. Each branch in its course passes through some lakes, of which the principal is the Alva Lake, on the east branch.

The lands of the appellants expropriated by the respondents are part of a large area of wild forest land purchased by the appellants in or about the year 1901. The area was used by the appellants for lumbering purposes, and had no agricultural value. In the appellants' time the saw mills were driven by steam power, but there were upon the property certain old water-power saw mills and several dams had in former times been constructed, partly for the purpose of water storage in connexion with these mills, and