Murphy, J.:—The municipality derives its powers of assessment from the Municipal Act, R.S.B.C., 1936, ce. 199. Section 223(1), prescribes how a municipality must proceed in ascertaining values for assessment purposes. It reads as follows:
223(1) For the purposes of taxation, land, except as hereinafter provided, shall be assessed at its actual value, and im- provements shall be assessed for the amount of the difference between the actual value of the whole property and the actual value of the land if there were no improvements: Provided, however, the land and improvements shall be assessed separately.”
Unless the assessment in question is made in accordance with the law authorizing it such assessment is invalid: Consumers Gas Co. v. Toronto (1897), 27 S.C.R. 453. Dealing first with the land assessment, land must be assessed at its actual value. Actual value of land for assessment purposes, where no actual market is in sight, is what a prudent person, attempting to measure the forces at work making for a present shrinkage in value for a time and again likely to arise making for an increase in value, would be likely to agree to pay in way of investment for such land: Bishop of Victoria v. Victoria, [1933] 4 D.L.R. 524, 47 B.C.R. 264. Such possible purchaser will be hereinafter referred to as an investing purchaser. No evidence was given that a present market for any of the parcels of land involved in this appeal is in sight and consequently the principle above set out applies. Taking first lot 5805, this lot is assessed at $3,170, which was the price paid for it by appellant in 1936. It was purchased from the Dominion Government. That Government must in fixing the price be taken to have been acting in the interests of the people. It had to take into account two considerations: First, as administrator of the public domain it had to see that it obtained a fair price for the lot. Second, as to its knowledge the land was required as part of the site of the First Narrows Bridge and as that structure if built would be of great benefit to the citizens of the City of Vancouver and the residents on the north shore of Vancouver harbour it would, in my opinion, feel impelled to place no undue obstacles in the way of the construction of the bridge by asking for the land more than it was worth at the time of sale. Of course sale price does not fix actual value for assessment purposes as the Bishop of Victoria case, supra, shows but it is in my opinion one of the factors to be kept in mind together with the circumstances surrounding its sale in applying the principle laid down in that case. What factors would influence an investing purchaser in deciding the price he would be willing to pay for said lot? I find on the evidence there would be three, viz., the possibility of subdividing that portion fronting on Marine Drive, the possibility of the remainder being utilized as sites for light factories and the possibility that the whole of said lot might some day be required as part of a bridge site should a bridge over the First Narrows be constructed. This last consideration
is I think justified by the decision in Re Ontario c Minnesota Power Co. C Fort Frances (1916), 28 D.L.R. 30, 35 O.L.R. 459. These considerations in my opinion would lead an investing purchaser to be willing to pay the assessed price for lot 0805. The assessment is accordingly confirmed. Taking up next lot 5797, the assessment made on it is also the price the First Narrows Bridge Co. paid for it in 1936. What has been said in reference to sale price when dealing with lot 5805 applies likewise to this lot, the only difference being that in this instance the vendor was the provincial Government. That body would I think have the same considerations before it in fixing the price as presumably the Dominion Government had. What factors would influence an investing purchaser in reference to this lot in deciding the price he would be willing to pay for it ? Again I find on the evidence there would be three, viz., the fact that it is a waterfront lot and therefore that a portion of it would be capable of development as waterfront property, the possibility of utilizing the remainder as a site for light factories enhanced as to this lot by the fact that rail shipping facilities over the P.G.E. would be obtainable at relatively small cost and the possibility of the whole lot being some day required as a part of a bridge site for a First Narrows bridge. It was strongly contended that waterfront development could not be profitably undertaken because of strong currents and other physical difficulties. I am convinced on the evidence that taking the long view such is not the case and that an investing pur- chaser would give that possibility some favourable consideration. With all enumerated factors in mind I think such investing purchaser would be willing to pay the amount of the assessment for this lot and the assessment is also accordingly confirmed. As to the pier site lease, which under the Municipal Act has to be assessed as if it were owned in fee, I find on the evidence that the only factor that an investing purchaser would take into consideration would be the possibility of its being required for the purpose for which it is actually in use, viz., as a pier site for a First Narrows bridge. But with that in mind I consider he would be willing to pay the assessed price of $1,000 therefor and the assessment is likewise confirmed.
Subsection (1) of s. 223 of the Municipal Act above set out directs how assessments for improvements are to be made. The actual value of the land is to be determined, then the actual value of the whole property, land and improvements is to be fixed and the figure for assessment of improvements is to be arrived at by deducting from the actual value of the whole property the actual value of the land. Then land and improve- ments are to be assessed separately. Actual value has the same meaning for assessment purposes in the case of improvements as it has in the case of land, subject to the qualification that in determining what an investing purchaser would be willing to pay regard must be had to the likelihood that the reversible currents which affect land, causing it at times to depreciate and again to appreciate in value, will not, at least to the same degree, affect an improvement dedicated for all time to a given purpose—in this instance a bridge: Bishop of Victoria v. Victoria, supra. "‘Improvement,’’ as defined in s. 2 of the Municipal Act, when used with regard to district municipalities "‘shall extend to and mean all buildings, structures, fences, storage-tanks for oil or gasoline for sale by wholesale or retail of a capacity greater than three thousand gallons, and all machinery or other things affixed to the soil. ff Respondent is a district municipality. Improvements by the definition must be affixed to the soil. I cannot see how anything can be regarded as affixed to the soil of a particular parcel of land unless such thing is situate within the vertical planes of the boundaries of the particular parcel of land under consideration. If this view is correct then the improvement, say on lot 5805, disclosed in the evidence, is that portion of the bridge enclosed by the planes of its boundaries extended vertically upward with the rest of the bridge conceived of as being non-existent since such remaining part is not affixed to the soil of lot 5805. Following then the directions contained in said s. 223(1), of the Municipal Act in the light of the decision in the Bishop of Victoria case, supra, the question is what additional sum would an investing purchaser be willing to give for lot 5805 with this segment of bridge upon it to what he would be willing to give for said lot. with nothing annexed to it except by nature? No evidence was led by respondent which would enable the Court to give an answer to this query. The only evidence adduced was as to quantity of steel and cement in such segment of bridge and their value conceived of as an integral part of the bridge as a whole. Such evidence can have no bearing on the question propounded so far as I can see. If evidence had been led showing that such segment of bridge had a value in exchange to use, if I may, with respect, the language of Macdonald J.A. in the Bishop of Victoria case, supra, then Re Maritime T. & T. Co., [1940] 1 D.L.R. 602, cited by counsel for respondent might call for consideration but again the record contains no such evidence. Further, if evidence had been led to show that an investing purchaser would be willing to give more for lot 5805 with said segment of bridge upon it than he would give for it in a state of nature because of the possibility of its being used as a portion of a First Narrows toll bridge which might thereafter be authorized and constructed and that consequently such segment had a value in exchange such evidence would have to be weighed and a conclusion based upon it arrived at. No such evidence however was given. It follows that since the Court has before it no evidence that the improvements on lot 5805—if the segment of bridge standing upon it conceived of as standing alone with the rest of the bridge non-existent can be called improvements— have any actual value for assessment purposes within the meaning of s. 223(1), of the Municipal Act the appeal against the assessment of improvements upon it must be allowed. What has been said in reference to improvements on lot 5805 applies mutatis mutandis to improvements on lot 5795 and on the pier site and the appeal against assessments of improvements on these parcels must likewise be allowed for the same reasons. If I am in error in my view of what constitutes improvements and if the segments of bridge on each of these parcels of land are to be dealt with for assessment purposes as integrated portions of the whole bridge, I would still be of opinion that the appeal against assessments for improvements must succeed. However great may be the value in use of the bridge in question its value in exchange within the meaning of said s. 223(1), of the Municipal Act, interpreted in the Bishop of Victoria ease, supra, aS a Structure is in my opinion nil. Its only value in exchange arises I think from the franchise authorizing the collecting of tolls over a period of years on traffic traversing it. Reverting then to the definition of "‘improvements’’ in the Municipal Act I cannot see how such an intangible thing as a franchise to collect tolls can be said to be affixed to the soil upon which the supports of the bridge stand or over which it passes. Still less in my opinion can such franchise be conceived of as being divided into parts with some indeterminate part affixed to the soil of each particular lot over which the bridge passes. If the views herein expressed—assuming they are correct—result in valuable property escaping taxation the remedy lies with the Legislature. The Court can only apply the law as it stands on the statute book. The Ontario cases cited in argument are not I think of assistance in deciding how improvements are to be assessed under the Municipal Act. The statute they deal with makes no distinction between land and improvements, contains no definition of improvement and by the combined effect of its definition of land and its section prescribing method of assessment directs that improvements be
assessed as land. Judgment accordingly.