Colonial.

Lyttelton Times, Volume X, Issue 617, 6 October 1858, Page 2

Colonial.

WELLINGTON,

An important action has been brought before the Supreme Court by Mr- Tame, a xunholder, against Mr. Fox, who, acting under appointment from the Superintendent ;as Chief Land Commissioner, had deprived Mr. Tame of his nm fer alleged breach ot Regulations. As the correct reading of. the'law-on the subject is of great importance to stockowners (who will however -note the differences which exist in this : province) we give in full the

JUDGMENT OF THE COURT -delivered by Mr. Justice Gresson, on the :21st Sept. This -was an application on the part of * the plaintiff for an injunction to restrain -the 'defendant, as Chief Land.Commissioner for the Province of Wellington, from interfering with --a certain run, situate in the -district of Warehama, in the Province of Wellington, held 'by tire plaintiff under a "Pasturage License from Francis Dillon Bell, Esq., Crown Land Commissioner, '->dated the Ist day of April, 1856. The case was" argued before me some weeks ago, and stood over until after my -return from Nelson for the. production of a called for by me, viz., the de-^ -iendant's warrant of appointment as ChiefLand Commissioner for -the Province of •Wellington.

The^acts of the case, as they appear in are, that by Mr. Bell's license of ;the date above mentioned, the plaintiff was licensed to depasture stock upon the said run for a term of 14 years from the Ist day of January, 1856, subject to be sooner ■determined pursuant to the Wellington Land Regulations of loth February,

1855

That the defendant, by notice in the 'Wellington * Gazette ' -of 20th May, 1857, and which notice was dated 12th May, 1857, and purported to be given and signed by the defendant as Chief Land •Commissioner, declared the said license forfeited for non-compliance with the 7th .-section of the 11th of the above mentioned ■Land Regulations; and by a further notice in the same ' Gazette/ dated 13th May, 1857, notified, as Chief Land Commissioner, that he would on the 22nd day of June then next, let the said run to the * highest bidder, / ! '• That notwithstanding the receipt "of a notice from the plaintiff, and a public protest in the newspapers, and also notice in writing publicly delivered to the defendant by the plaintiff's solicitor immediately before the letting, the defendant on the 22nd of June, 1856, proceeded with the letting, and declared the run to be let to one Charles Johnson Pharazyn; and in prosecution of his purpose of evicting the plaintiff, commenced proceedings in the Resident Magistrate's Court against one Peter Hume, an occupant of the said run under an agreement with the plaintiff, for penalties by reason of his alleged illegal occupation of the said i un, after the plaintiff's license had been forfeited.

The delay in applying for the injunction has been satisfactorily accounted, for by the state of the health of my predecessor, the late Mr. Wakefield, which rendered him for many m.onths before his death incapable of attending to business.

The only evidence furnished to me of the Defendant's title as Chief Land Commissioner, is a notice in the Wellington 'Gazette,' of 4th October, 1856, dated 24th September, 1856, stating that the Superintendent lias been pleased to appoint William Fox, Esq., J. P., Chief Land Commissioner of the Province of Wellington ; the appointment to date from the Ist October then next; and a warrant <lated the 9th day of June, 1857, under the hand of I. 32.- Featherston, Superintendent.

Uncler the 2nd section of " the Waste •Lands A_cfc, 1855," the Superintendent -•was empowered to remove any person then -employed in the administration of the '\vaste lands of the crown in such province, and provisionally, until other provision .■should be made by law in that behalf, to appoint airy other person or persona, with full power to perform and exercise all thjj

powers, duties, and functions which mig*hj be performed or.exercised by any persoia t-o removed. ; \ No evidence has been furnished to me!, although repeatedly called for, of the re--

■moval of Mr. Bell from his office of 'Crown Land Commissioner 5 nor has his resignntion been Gazetted. I must therefore conclude that he has not been re-

moved. His, functions, therefore, cnnnot csiave boon transferred by virtue of the $ad auction'of ,the Act, to the defendant,

by a notice in the •< Gazette,' which does not allude to the removal of the Crown Land Commissioner, nor even notify the appointment of the defendant to a similar ofSce, but merely declares that he has been appointed by the Superintendent to a new office, the 'title of which (Chief Land Commissioner of the Province of Wellington) was not mentioned in "the Waste Lands Act, 1856," or known in the province j and the duties of which are undefined, and even unnoticed. It, appears to me, therefore, that the defendant's appointment under the * Gazette' notice of 2oth September, 1816, was invalid, and that his powers as an acting Crown Land Commissioner, if they ever existed, did •not commence until his appointment by warrant, under the hand of the Superintendent, viz., on the 9th day of June, 1857; and that therefore on the 12th May previously, he had no power to adjudicate upon or -declare the plaintiffs run forfeited.

I say " if they ever existed/ because I i find that the warrant of the 9th June, 1857, appoints the defendant to do and perform all such acts, matters, -and things within the Province of Wellington as might by any Act or Ordinance in force within the Province of Wellington be done or performed by or in relation to, not a Commissioner of Crown Lands, the title used in the section of the Waste Lands Act recited in the warrant, and which is the title conferred bj' the Crown Lands Ordinance, which expressly provides that the Commissioners " shall be and be called Commissioners of Crown Lands," but a Commissioner of Waste Lands, an office to which it does not appear that any powers belong under any Act or Ordinance in force within the province of Wellington.

But independently of any defect of title in the defendant as Commissioner, I differ from him wholly as to his construction of the Regulation, for the alleged non-com-pliance with which he declared the run forfeited.

The Regulation is as follows : —" Within 12 months after the issue of a license, the holder thereof shall he required to place on the run at least one breeding ewe tor every 20 acres, or one cow or more for every 120 acres; and he shall be required to keep up at least that number of breeding- stock upon the run during1 the whole period of his occupancy. Should the holder of a license not comply with this condition, his deposit shall be absolutely forfeited, and the run shall be let according as is provided for in the foregoing1 clause" (viz., by public auction after one month's notice in the Provincial 'Gazette').

The facts which are alleged to have amounted to a violation of the foregoing regulation are thus stated by the defendant, in his notice of the 12th of May, 1857 :—

" Mr. Tame did not, during the year following the issue of his license, nor at an}' other time, place on the run any sheep whatsoever belonging to himself. Mr. Hume placed upon it, within the requisite period, the number of ewes required. Mr. Tame has no interest in these sheep, except that he had previously advanced Mr. Hume £100, for which it was understood between them he was to have a security over the sheep, but no written security was taken by him. The terms on which Mr. Hume occupied the run were, that he was to pay to the Government the annual rent accruing in respect of the run, to pay a certain quantity of lambs and wool to Mr. Tame as rent to him for the use of the run, ond to give up the run to Mr. Tame. when required, there being; a sort of understanding1 that he would not be disturbed for seven years.

The object of the regulations requiring" the holder of a license to stock the run within 12 months, and prohibiting1 a transfer until that condition is complied with, is to pi-event trafficking in runs, as a marketable commodity and mere matter of speculation, by parties who, having got a license issued to them without tile intention of stocking- the run granted, may exact from others h'vsh-jv terms than those demanded by the Government, deriving a profit from the transaction.

The arrangement between Mr. Tame and Mr. Hume appears to me precisely of the character which these regulations were intended to prevent. I cannot allow tiiat Mr. Tame lias stocked the run in question as the regulation requires, and in conformity with the 7th section-of'Regulation li, I declare his license to be forfeited." Tt appears to me that all that is required of the licensee by the Uth regula-

tion is to place upon the run withm 12 months, and to keep upon it during- the period of his occupancy the requisite number of stock: the object of the regulations not bom-, as the defendant supposes, to insure that the stock shall be. bonaJUe property of the licensee, but that the runs shall be-stocked so soon as there, may be stock in the province available for the purpose; in other words, that the pastoral resources of the province shall be developed with the least, possible delay, lhisis the great object which the legislature has in view, and not to prevent the trafficking in runs, the transfer of which is expressly sanctioned by the Land Regulations, and which, even if it were not, the Crown Land Commissioner has not adequate powers either to inquire into or to prevent. „ . . , I am therefore clearly of opinion that the alleged breach of the 11th regulation has not been committed by the plaintiff, and that his license is still undetermined. But it is objected on the part of the defendant, that by virtue of the Crown Lands Ordinance, he is clothed with judicial powers for the exercise of which he is responsible only to the crown, and that to interpose by injunction would be to violate an acknowledged principle on which courts of equity disclaim the exercise of jurisdiction over other courts, and restrain, not the courts, but the individuals who may be seeking to make them the instruments of injustice. The objection, assumes, Ist. That the defendant at the time he declared the plaintiff's run forfeited, was, and still is clothed with all the powers of a Crown Land Commissioner; and, 2ndly. That as such Commissioner he has not exceeded his jurisdiction. 1 cannot admit, for the reasons already stated, that the defendant was at the time of the alleged forfeiture clothed with the powers of a Crown Land Coramisioner. But even if he were, it appears to me that in declaring the run forfeited for breach of a condition which =has not, in fact, been broken, he has exceeded the limits of his jurisdiction. ' .y' "'" Under the plaintiff's license he was entitled to hold hisj^un for 14 ,3'ears, unless an event should jopcur which has not occurred, viz., the plaintiff's non-compliance with the 7th cla^Tae of the 11th Regulation. So long as : thj| was complied with, the jurisdiction of the commissioner to let the run was in abeyance. The plaintiff's license would be of little value if it were in the power of a commissioner, first by an abitraiy exercise of will' to declare the license forfeited, and then to plead his jurisdiction in bar to the redress sought by the plaintiff in this Court.

This application appears tome to be not unsupported by authority. In AttorneyGeneral v. Forbes, 2 Mylo and Craig", 128, Lord Cottenhatn, after vindicating the jurisdiction of the Court to interfere in cases of nuisance against commisioners of sewers and other persons possessed of jurisdiction founded on Acts of Parliament, thus sums up: —" To say that this Court, when it interferes in such a case, is acting1 as a Court of Appeal from the Court of

Quarter Sessions, is any thing but a correct representation of the fact. The jurisdiction is exercised, not for the purpose of overruling* the powers of others, by way of appeal from their authority, but for the purpose of exerting a salutary control over all, for the protection of the public." It is true, that was a case of public nuisance: but this cse conies under an

equally well recognised head of equitable interference —viz., the case of irreparable wrong done, for which the plaintiff can have no adequate remedy at law; for it is obviously impossible to measure by damages the prospective profits of a sheep run.

That a wrong has been done to the plaintiff is manifest from the defendant's own statement. The Court does not require any further evidence of this fact than has

been furnished by the defendant himself,

The only effect, therefore, of refusing the injunction sought would be, to oblige the plaintiff by prolonged litigation, the expense of which must ultimately fall on the defendant, to seek from this Court, under some other form of action, the redress which, were I to refuse the injunction, would be denied in the present suit. One principle object of our new rules was to do away with the distinct remedies hitherto applied in England to legal and equitable rights. Here, to use the language of the second report of the commissioners upon the proceedings of this Court, "the same Court which is to give protection possesses also the power of taking cognizance of the

right for which protection is sought, and of determining1 whether it exists.

" The question of the existence and limits of the right, if denied, will be raised in one and the same action, and the issue will be settled and carried to trial as in ordinary cases." ; I feel bound, therefore, to grant a perpetual injunction in this case against the defendant's interfering with the plaintiff's run, by reason of the alleged forfeiture declared by the defendant's notice of the 12th May, 1857; and with costs. Judgment for plaintiff with costs.