SUPREME COURT—CIVIL SITTINGS.

Evening Star, Issue 7651, 29 June 1888, Page 1

SUPREME COURT—CIVIL SITTINGS.

Thubsday, June 2&\

(Before His Honor Mr Justice Williams.) VVaugh v. Sheihy. Claim, LIOO, damages for alleged trespass. Mr Mouat appeared for the plaintiff, William Waugh, of Ettrick, farmer; Sir R. Stout for the defendant, Timothy Sheehy, of Ettrick, gold miner; and Mr Finlayson (Lawrence) for the defendant Bernard Sheehy, of Uttrick, gold miner. After we went to press counsel on either side addressed the Court. In the course of his remarks, Sir R. Stout cited a case from ' Leonard,' the date of which is 1588. The volume, which is printed m black letters, is a record of cases tried at Westminster in the reignß of Elizabeth and James 1., and the passage quoted by Sir Robert had reference to the question of trespass upon Crown lands. It ran as follows:—" 1588, Michaelmas, 30 Eliz. In Common Pleas.—Note by Anderson, Chief Justice: If one intrude upon the possession of the King and another man entereth upon his, that he shall not have an action for trespass for that entry, for tho.it he who is to have and maintain trespass ought to have a possession. But in such case he hath not a possession, for every intruder shall answer to the King for hi* whole time, and every intrusion supposeth the possession to be in the King; which all the other Justices agreed, except Periam who doubted of it. And Rhodes, said and vouched (19, E 4) to be that he cannot in such case lay in an action of trespass." His Honor gave judgment as follows : The first question- to be determined is what was the right of the plaintiff to this piece of land so far as regards the Crown. Now the plaintiff in 1874 bought Ede's property, Ede having a certain freehold property, and also being at that date in occupation of the piece of land now in dispute. The only rights Ede had thero at the time he sold to plaintiff—if rights they can be called—would be derived from the letter written by Mr Simpson in 1873. Whether after that letter was written, it could be inferred that Ede was lieensed by the Crown to hold possession of the land it is not necessary t» decide. lam satisfied, however, that it would be impossible to find that the present plaintiff now has any occupation of the land with permission of the Crown. The letter was writtenibt 1873, and it was written to Ede. It implies n* more than a personal license. In considering whetherapersoaisocoupyinglandbylicensefrein the Crown we have to take into consideration tha legislation in force in the eolony relatiwt U the disposal of Crown lands. We know that very dbfinite provisions were made for all dealings with Crown lands, and there is ho statutory provision, as far aalam aware, authorising any official of the Crown to license the oatmsv. ing of Crown lands. The fact of the present occupation not being in Ede, and the faotof such a long time having elapsed sinoe the letter was written, are in mymind, looking at the laws in f orcerelatmg to Crown lands, ccaelnsive to show that there is no evidence that Wanirh is ocenpywg with permission of the Crown I should therefore find that Waugh is simply an intruder. Can, then, an intruder on Crowa lands, if he is in actual physical possession bf them, maintain an astlou against someone tee., passmg on bis yoßsession? The earlier ease in Leonard deciSes he cannot Again, Bar! per v, Oharlesworth decides that ifaler. soa is in occupation of Crown lands wfth permission of the Crown, he action against a trespasser, Bnt, although some of the judgment throws doubt upon the casefe Leonard, set it certainly does not decide that a mere intruder can bring such an actJonl Aasuming, however, that an intruder on Crown land can bring an action against a person who trespasses onlus possession, this much is abeo" lutely certain ;■ that no Court of Equity wonM eyw grant an injunction at the instance of aacb intruder to restrain a continuance of tb* trespass. If, however, an intruder has & tight off Mfaon for trespass, it lies on him Ushow this • that he is in suoh a position as in an ordinary case would be sufficient to Maintain an action of trespass. That istetsay-fc he, apart from any question of ti% in exclusive physical possession of, the land he claims J Mowv it

is indubitable that from 1873 downwards, and before the present plaintiff owne into possession, the defendants had put up their dam, had their water-racp, and had backed up water, and continued to do ho from 1873 to the present time. That, in my opinion, would be sufficient answer to the plaintiffs claim, Defendants, however, have something more than actual physical possession, because they are in possession, at any rate, under the color of a right—viz., a certificate to erect a dam. But it seems to me wholly unnecessary to determine whether that certificate is valid or not. I do not think this would be the proper Court to determine its validity. Having been granted, I think its validity would have to be determined in the Warden's Court. Apart from this, I am satisfied—even assuming the xtreme proposition that a mere intruder on Crown lands can bring an action for trespass hgainst someone who in turn intrudes—yet, in the present case, the plaintiff has failed to prove, what must be done in all actions for trespass where title is relied on—viz., to show that ho has, and has had, exclusive physical possession. For these reasons I think the defendants are entitled to judgment.

Mr Mouat: It is too late, I suppose, to move for a nonsuit, your Honor. His Honor: Yes, I should say so, Mr Mouat, after judgment is given. Sir R. Stout asked His Honor to certify for two counsel.

Mr Mouat objected, urging that it was not like an equity suit in which there were defendants with separate interests. Sir R. Stout said an injunction was applied for, and although the damages were small, he was instructed that had the plaintiff been aucceßsful it would have utterly ruined Sheehy's claim below. His Honor said as an injunction was asked for he would allow costs on the medium scale, as if L3OO were claimed, and say nothing about a second counsel. Tanner v. Thomson.—On the application of Sir R. Stout this case was adjourned to the next civil sittings. The Court adjourned at 5.50 p.m.