SUPREME COURT.

Globe, Volume IV, Issue 426, 23 October 1875, Page 3

SUPREME COURT.

SITTINGS IN CHAMBERS. Friday, October 22. His flonor sat in the Court House at 11 a.m. EE WM, MURRAY, DECEASED. Mr Garrick applied in this case for letters of administration to issue to Fredk. Trent and John Aitken, as creditors of the estate. His Honor made the order. RE ROBERT ALEXANDER JOHNSTON, On the application of Mr Bamford, his Honor made an order fixing the date of last examination for November 4tb. RE JAMES WM. DONALD, In this case Mr Bamford applied for a similar order. His Honor made the order, fixing last examination for November 4th. EE THOMAS SHAILEB, The bankrupt in person obtained an order fixing date of last examination for November 4 th. RE JAMES GEORGE SETH SNOSWELL. Mr Bamford applied for an order fixing the date of last examination and discharge. His Honor made an order for November 4th. EE JOSEPH CARDER. In this case his Honor made a similar order on the application of Mr Bamford. EE MIDDLETON AND M'QUADB. Counsel in this case submitted a special case for the Court of Appeal, which was approved by his Honor. IN BANCO. THRELICELD V BLACKETT AND OTHERS. Mr Garrick for the plaintiff. Mr Joynt for defendants, the Rangiora and Mandeville Board of Conservators. In this case, which was an argument on demurrer, heard on the 28th September, Philip Collins Threlkeld was plaintiff, and the members of the Hangioraand Mandeville Board of Conservators, formed under the Canterbury Rivers Act, defendants. The plaintiff sued the defendants for £SOO damages, for having wrongfully and improperly cut, deepened, enlarged, and widened a certain drain called the Rangiora Main Drain, and constructed and erected, and still maintain divers embankments and mounds. The plaintiff further alleged that the defendants unlawfully and wrongfully penned back and obstructed the flow of the waters pi a pertain river,'known as the Oust, along i’tp natural course, and caused the waters of the said river to be diverted, and flow along the Rangiora Main Drain on to the land of the plaintiff, thereby doing damage. The plaintiff, therefore, sought to obtain a decree tjaat the defendants might be compelled to

do such acts as would allow of the Oust flowing in its natural channel. To this tire defendants pie vied the Canterbury Rivers \et, and that the defendants, as conservators under such Act, did the acts complained of under and by virtue of the powers conferred upon them by tin; Act, The demurrer by the plaintiff was to the effect that the defendants’ plea was bad in substance, and the point of law intended to be argued was that, Ihe Canterbury Rivers Act. 1870, does not authorise the committal of the acts and things complained of in the plaintiff's decla ration.

His Honor now delivered judgment as follows:

This is a demurrer to a plea. The declaration avers that the defendants deepened and enlarged a certain drain, and construct* d certain embankments and mounds, which penned back ami obstructed (he River Gust, and caused it to flow along the deepened drain, and 10 be discharged into another drain, and thereby caused large bodies of water, which would but for that have es-

caped iu other ways, to How into a certain main drain, called the Rangiora main drain, past the plaintiff’s lands, and to flow with treat force on to the plaintiff's lands ; by

reason whereof, and of the waters of the fiver being so penned back and diverted, the waters overflowed the banks of the Rangiora main drain and destroyed the plaintiff's lands and remained on the said lands,

whereby they were diminished in value ant

are being gradually wasted away and undermined, and are liable to be flooded and overflowed by large quantities of water, which, but for such embankments and drain, We, would, and ought to escape in other ways from the plaintiff's land. To this the de-

fendants plead, that under the provisions of the Canterbury Rivers Act, 1870, the Provincial Council of the province of Canterbury constituted a district for the purposes of the Act, called the Maadeville and Rangiora Drainage District, which comprised the plaintiff’s lands mentioned in the declaration ; that five of the defendants were appointed, under the Act, a Board of Conservators for the district (the other two defendants being their servants); that t he alleged wrongful acts mentioned in the declaration were done and committed by the five defendants as such

Board, under and in exercise of the powers conferred on them by the Act and not otherwise, and the works and things complained of were such as the said defendants, acting as such Board, might legally do and perform in exercise and execution of such powers and authorities ; and that it became and was necessary, for the purposes contemplated hj the Act and for carrying into eJiect the objects for which the district was proclaimed and the Board constituted, that the defendants should do, perform, and execute the works and things complained of in the declaration. To this plea there was a demurrer, on the grounds that the Act does not authorise the t» ings complained of ; that it does not appear from the plea that the river Gust was within the defendant district, or that the alleged wrongful acts were done within the district ; or that the Board had any authority to commit them outside the district ; that it does not appear that the Acts were necessary for making, repairing, and maintaining protective works to prevent or lessen any damage which may be caused by the overflow or the breaking of the banks of any river within the district, oi that the acts were done for more effectually securing any lauds or tenements within the district against irruption or overflowing of any river, or for draining or carrying off any super fluous water within the district; that it does not appear that the River Gust was under the control and management of the Board, There are further grounds of demurrer founded on the assumption that if (he acts were authorised the plea should have shown that a consent in writing of the plaintiff was obtained by the defendants, and that compensation had been agreed for or tendered by the defendants. Before coming to the more important and substantial question raised in the course of the argument, it seems to me desirable to dispose, in the first place, of some of the less important points. It was strenuously contended, on the part of the plaintiff, that the defendants in their plea do not with sufficient particularity state the facts bringing the case within the provisions of the Canterbury Rivers Act, 1870, and that it should have shown for what specific purpose within the contemplation of the Act the things complained of were done. Now, it seems to me that, as the Act is a public one, the plea must be read as if the purposes of the Act, declared in the Act itself, were recited in it. The-e purposes appear sufficiently from the 27th section (without the necessity for reference to the preamble) to be, the execution of works for protecting lands against irruption or oveiflow of rivers, and for draining and carrying off superfluous waters. fhese purposes seem to me to' be ejusdem generis, and, therefore, an allegation that certain things were done for the purposes of this Act cannot be treated as so vague and uncertain as to render the pleading substantially bad. If the generality of the allegations caused any embarrassment to the plaintiff, such as would justify him in applying to the Court for amendment, or further particulars, I think it does not necessarily follow that the plea is bad on demurrer. With regard to the objections suggested, to the effect that the pha does not allege

that the river Oust is within the dis. trict, and that the alleged wrongful acts were done within the district, and that the river Cast was within the jurisdiction and managtment of the Board, they seem to be answered by the provision pointed out by Mr Joynt in the conclusion of the 27th section of tire Apt, to the effect that “any such aids or defences may bo erected, made, and maintained by the Board without their district, if, in the opinion of the Board they shall be required to be made and maintained for the protection of any lands witlrn their district,” and that it must be taken that the plea could be supported only by proof that the acts done were necessary for the protection of such lands.

Coming to the substantial question of taw involved in the case, I have to consider whether, upon the facts stated in the declaration and plea, the plaintiff appears to have any cause of action. Now, persons whose property is injured by the acts of Boards or individuals, done under colour of statutory provisions, may find themselves in three different positions. First, the injury may be one with respect to which there is a common law right of action, which has not been tuken away by the statute; or secondly, it may be one in respect of which the common law right of action has been taken away, but a special mode o| compensation

I has been provided in lieu of P: or thirdly, it may have been in the contemplation of the Legislature, in the interests of the eomtnnnity generally, to deprive certain classes of persons of their common law right, without giving them any special mode of obtaining compensation. The case of the Hammersmith Railway Company u Brand (L. R. 4, lI.L. 171), illustrates in a remarkable manner (he d i Hie til ties which arise in cases of this kit'd. The question there was, whether under the, provisions of a Railway Act, which adopted the provisions of the Lands Liannes and the Railway Clauses Consolidation Acts, a landowner was entitled to compensation, which had been awarded to him by arbitrators under the Acis, in res pi ct of depreciation of Iris property, caused by vibration, consequent on the use of the railway by locomotives. In the Court of Queen’s Bench, two judges held that the claim for statutory compensation was not maintainable ; but in the Exchequer Chamber, three Judges against one held that it was. The case having been carried

to the House of Lords, the opinions of six .fudges were taken, and four of them agreed with ihe Exchequer Chamber (one of whom, Lush J., had held the contrary opinion in the Court of Queen’s Bench) — while one Judge (Blackburn J.) dissented from the majority ; and another, Bramwell 8,, advised their Lordships that the original plaintiff was entitled to compensation under the Act, only if the cases of It. r.

Pease, and Vaughan v TajJ Vale Railway Co, which’ he did not consider to be good law, were upheld. Lord Chelmsford and Lord Colonsay finally decided (Lord Cairns dissenting)—that the owners of the land were not entitled to compensation under the Statute, and that their common law riirht of action had been taken away. On full consideration of that case, and the authotios cited on the arguments, and applying to the best of my ability the principles which are to be taken as now established law, I am of opinion, in the first place, that on this demurrer it is unnecessary for me to consider whether or not the plaintiff is entitled to compensation under the special provisions of the Canterbury Rivers Act, 1870, because, if entitled to compensation under the Act, he must be taken to be deprived of his common law right of action, upon which he now relies. The real question is whether the facts stated in the plea afford a good answer to (he declaration, which is founded on the pl aintiff’s common law right. The declaration show's a good cause of action at common law ; and the plea admits it, hut it avers that the alleged wrongful acts were legally done under the poweisand authorities of thecolonial statute; and that it was necessary for the purposes contemplated by the Act, and for carrying out its objects, that the defendants should execute the works, and do the things, the effects of which are complained of. It would therefore be incumbent on the defendants, if the plea were traversed, to prove that the things complained of were legalised by the Act; that is, that they were necessary for the carrying out the purposes of the Act, and therefore such as must be taken to have been contemplated by the Legislature as inevitable consequences of the works sanctioned by it. If it should appear ia evidence that the injuries complained of were not inevitable, on the ground that, with more care and skill in the construction or management of the works, these injurious results would not have occurred, the allegations, that the works and things complained of were such as the defendants might legally do and perform, and that they were necessary for carrying into effect the object for which the Board was constituted, would not be established. I am, therefore, of opinion that the plea is, substantially, a good answer to the declaration. Judgment for defendants. In giving judgment on this case, His Honor said he abstained from expressing any opinion on the question whether the plaintiffs were or were not entitled to compensation under the Act. Mr Garrick applied for leave to appeal or reply. His Honor granted the application. RE TRUSTEE ACTS, AND RE PETITION OP GEORGE CLARK AND OTHEKS. Mr Thompson applied for th ■ appointment of two trustees in the room of the sole trustee. His Honor made the order, OSBORNE V BANKS AND OTHERS. I Mr Garrick said this case stood over for i service of notice on the defendant Osborne. Mr Osborne was now in Court to consent to t proceedings. The trustees had, as was al- 1 leged by the plaintiff, diverted the rents and i profits to payment of a certain mortgage, ininstead of as provided by the will paying it over to her for her sole use. This would practically reaultin theremainderman henefitting at the expense of the tenant for life. The prayer of the plaintiff was that that she , should be recouped by the sale of a certain \ part of the corpus, to such an amount as she , should, on enquiry by the Registrar be found to be entitled to. Decree granted in terms of application. FOWLER V M’ARTHUR AND OTHERS. Mr Garrick applied for a rule nisi calling , upon the plaintiff to show cause why the verdict should not be entered for the defendant on the grounds—(l) That the plain tiff adduced no evidence of the absence of i reasonable and probable cause. (2) That . the verdict of the jury negatived express . malice. His Honor declined to grant a rule nisi on the second ground, but would do so on 1 that of the plaintiff producing no evidence of absence of reasonable and probable cause. Order accordingly: rule nisi granted for argument on first ground only. Mr Joyut moved for a rule nlii in the same case, calling upon defendant to show cause why the verdict obtained by the plaintiff should not be set aside, and a new : trial had on the following grounds: (1) That the learned judge who presided at the trial imj roprrly admitted evidence of the character of the plaintiff. (2) That the damages are excessively , small. (3) That the verdict was against the weight of evidence, His Honor would grant the rule nisi on the two first grounds. Order : rule nisi for argument as to new trial granted on grounds of admission of evidence of character and smallness of damages. RE WASTE LANDS APPEAL ACT, 1867, AND) RE APPIICATION OP SAMUEL JOHN GAM MAN. This was an argument of a special case, in which one Samuel John Gam man was appellant, and the Waste Lands Board of the province of Canterbury, respo ident. Dr Foster appeared for the appellant. Mr George Harper for the respondent. The plaintiff, Samuel John Gamman, of Oxford, applied to purchase eighty acres

rural land in the province of Canterbury undi r and in pursuance of the Acts and regulations in force in the province of Canterbury regulating the sale of waste lands of the. Crown in the province of Canterbury. 11 he application was duly made and signed j at the Survey office, Christchurch, on Thursday, August 12;.h, 1875, and was considered at the sitting of the Waste Lands Board on the l!)t,h of August. The applicant tendered the purchase money for the said land to the Receiver of Land Revenue, who is also a nu mber of end was present at the Board, and he by direction of the Board refused to receive it. It appears that the land in question was tire same land mentioned and described in a certain proclamation, a copy whereof appeared in the Government Gazette of the Province of Canterbury of the 25th February, 1850, which ran as follows: " Proclamation, —I, William Belton Moorhouse, 'Superintendent of the province of Canterbury, do hereby in pursuance of the powers vested in me in that behalf by the regulations for the sale, letting, and occupation of the waste lands of the Crown, proclaim ami declare that the lands hereinafter described shall be reserved until the next session of the Provincial Council, that is to say, (the description of the land in question was Imre set out) to be reserved for the prese;Villon and sale of the timber thereon. W. S. MOORHOUSE, Superintendent. By his Honor’s command, John Ollivier, ’Provincial Secretary. God save the Queen.”

There was no evidence adduced before (he Board that the Provincial Council of Canteibury had at any time passed a resolution by which the land mentioned in the pro clamatioa had ceased to be so reserved ; nor that the Provincial Council had at any time passed a resolution authorising the Superintendent to make the said laud a reserve, or confirming the reserve so purported to be made as aforesaid. There was no evidence adduced before the Board that the proclamation had or had not been made by the Superintendent with the advice of his Executive Council. The applicant contended that notwithstanding this proclamation the laud was now open for sale 01 the following grounds :—(1) That the land mentioned in the proclamation could only be reserved by the Superintendent and his Executive Council, (2) That the proclamation, minute, or document, making or purporting to make such reserve, must appear to have been made with the advice of the Executive Council. (3) That it was the duty of the Board to ascertain that such advice had been recorded on the minutes of the records of the Executive Council. (4) That the time mentioned in the proclamation during which such land was to be re served had expired, and the land had not been again reserved. The Board deferred their decision till August 26th, and then again deferred it to the 2nd September instant, upon which day the Board refused the application to purchase, on the ground that the land was reserved by the Superintendent’s proclamation of the 10th March, 1859, in accordance with the regulations for the preservation of timber, and that the Board had no evidence that the Provincial Council had at any time passed a resolution by which the laud had ceased to be so received The then applicant, now appellant, being aggrieved by such decision, gave notice to the Board, and also to the Superintendent, on the 9lh day of September, of his intention to appeal to the Supreme Court against such decision. The questions submitted for the decision of the Supreme Court on a special case were as follows

1 Whether the Board were not bound to take notice of the said proclamation of the Superintendent in the said Gazette without further enquiry ? 2. Whether the said proclamation should appear to have been made by the Superintendent, by and with the advice of his Executive Council ?

3. Whether the Board ought to have ascertained whether the said Superintendent’s Executive Council had advised the reserving of the said land as aforesaid, and whe'her such advice was recorded on the minutes ?

4. Assuming the proclamation to be sufficient for the purposes of reserving the said land, did such land cease to be reserved after the next session of the Provincial Council, such Council not having confirmed or dis solved or considered the said reserve ? 5. Whether under the circumstances the said Board ought to have granted the application of the said Samuel John Gamman, and allowed him to become the purchaser of the said land ?

Dr Foster having stated the special case, Mr George Harper, for the respondents, read sections 19 and 20 of the Was f e Lands Regulations, and contended that the proola mation was good, inasmuch as there was no evidence that the Provincial Council bad negatived the reservation thus made.

His Honor considered that the reserve made by proclamation had expired, inasmuch as it had been made ex eoncessis.

After further argument from Mr Harper, and without calling on Dr Foster, His Honor said: I am of opinion that the proclamation, on the face of it, made a reserve which, ex eoncessis, has expired. The Board should have granted the application. The appeal will therefore be allowed, with costs. The Court then rose.