DISTRICT COURT.

Nelson Evening Mail, Volume XI, Issue 220, 7 September 1876, Page 2

DISTRICT COURT.

[Before his Honor Jddqk Bkoad.] Pierson v. Collins and Others. His Honor delivered judgment this morning as follows: — In deciding the various legal questions raised in this action it will be most convenient to deal first with the second paragraph in the the "Statement of Defence," viz., "that the defendants are an unincorporated Board created for the purpose of carrying on works of a public nature and as such should be sued in the name of the Chairman." This defence is founded on the provisions of the " Unincorporated Boards Suit Act, 1870." The second section of that Act is as follows:— "Whenever any Board has been or hereafter shall be created by any Act of the General Assembly, or by any Act or Ordinance of the Provincial Council, for the purpose of carrying on works or services of a public nature, and such Board shall not be incorporated such Board whether designated by a collective title or name or not in the [ Act or Ordinance creating the same may sue I and be sued in all actions for money founded upon co-itraet and in all actions for money in respect of any Tort founded upon contract and in all actions for specific relief in the name of the Chairman thereof if there be a Chairman, and if not in the name of any of the members thereof." It is agreed on all sides that this is neither an action "for money fouuded upon con tract" or " for money in respect of any tort founded upon contract" or "for specific relief." But the learned counsel for the defendants contends that the "Unincorporated Boards Suits Act " being of a remedial nature is to be liberally construed and that this case really comes within the mischief intended to be remedied by that Act, and therefore the Chairman of the Board should have been sued in his representative capacity. I am unable to bring this suit within the fair construction of the words of the Statute. No judge can add to the words of an Act of Parliament, but it would be necessary to do so in order to hold that the section above quoted includes actions of tort not founded on contract. If the defendants have acted ultra vires they are personally liable, and their ofilcial character will not shield them from liability for wrongs committed in excess ot their statutory powers. It is now necessary to enquire what those powers are. The defendants hold ofilce by TSS; ° f i u T ¥ Nelson Highways Act, 18,2, and by that they are empowered '• to levy a rate, and to lay out aud expend the same in making and maintaining " roads bridges, drains, and other public works" But part 7 of "The Highway Boards Empowering Act, 1871," is in force in their district, and their powers under the Provincial Act must be exercised in accordance with the provisions of the general statute. The 28th section of the latter Act defines what shall be deemed to be « permanent works," and tue 29th and following sections provide that whenever the governing body deem it expedient to execute any such "permanent work, .they must cause plans to be prepared notice to be given in the Gazette, and some newspaper, and to the owner of any land proposed to be interfered with, and such owner may appear before the Governing body m support of any objections he may have to make to the proposed works The Governing Body then make such order as they think fit; but the objector if dissatisfied, may appeal to the Superintendent, who, after hearing the objection, may confirm, or vary, or disallow the order. If he confirms it, notice of such confirmation is to be published in the Gazette. And upon the confirmation of such order "and the payment of the tompensation to the owners and persons interested in the lands to be taken or used, and not before," the Governing Body is authorised to execute the work. And there is a proviso that the Governing Body are to make full compensation for all lands taken or used, and for all damage sustained by the owners or other persons interested. Two important admissions are made by defendants; first, they allow that they have damaged the plaintiff to some extent, and second, they admit that they did not, prior to carrying out the works by which plaintiff was injured, comply with any of the proT fl \T °l th ! "highway Boards Empowering Act. mat being so, should these works appear from the evidence to be "permanent works '- within the meaning of that Act, defendants are, in my opinion, liable in law to pay the plaintiff such damage as he mnv nave sustained. J With regard to the fifth ground of defence there is a question of fact which cannot be

answered untifahe evidence is taken; but the common law, whatever 'duties it may under certain circumstances impose, does not confer any right to take private property without compensation; nojr do I think; that where i statutory mode is. provided'of obtaining such lands as may be . required for carrying od pUbhc works any -person, would be liable iri damages at common law Avho could pr6ve. : that he, as the creature of the statute, wa& exercising his statutory powers with proper discretion and promptitude. i The sixth ground of defence I think inapplicable to the present case, and the seventh can only^ be. satisfactorily considered after hearing evidence. ; ; : f j There is a question of title at issue, but j the parties have agreed in writing to give this Court jurisdiction. On the whole I am of opinion that if these. I works were necessary for the public convenience, and were such works as the defendants had power to' construct only on obtaining the authority, and paying the compensation provided for by Part 7 of the "Highway Boards Empowering Act," they ought to have obtained such authority before constructing them. Bufc it may be questionable if the plaintiff is not entitled to compensation under that Act, and if so whether his common law right of action has not been taken away I , I do not now, decide these points, as they have not been submitted.