COURT OF APPEAL.

Lyttelton Times, Volume XIX, Issue 1077, 7 March 1863, Page 3

COURT OF APPEAL.

On Thursday morning, the Judges delivered judgment in the case of McLean v. the Attorney-General, which, by the courtesy of the Bench, Ave give verbatim. I" the case of McLean v. Teschmakcr judgment was reserved; but on Monday next the Court will sit, and if present difficulties to a decision are by that time removed a judgment will be given. This is an information of intrusion filed by the Attorney-General on behalf of the Crown. It charges that a certain parcel of land (describing it) part of the demesne lands of the Crown ought to be in the hands and possession of the Queen; but nevertheless the defendant, on or about the 12th May, 1555, entered, intruded, and made ingress upon the said land, and with sheep and cattle depastured the same; and continued in possession of the said land until the day of filing the information, wherefore the Queeu claims possession and to recover damages. The defendant admits his entry upon and occupation of the land in question to the extent of 20,000 acres in all, but seeks to justify such entry and occupation under two depasturing licenses, dated Ist Oct., 1553, which licenses were issued by the commisioner for the time being of Crown Lands in the Province of Canterbury, and (themselves) purport to be issued pursuant to the provisions of the " Crown Lands Ordinance" (Sess. 10, No. 1), of the " Crown Lands Extension Ordinance" (Sess. 11, No. 10), and of the Regulations alleged to have been then in force in the Province of Canterbury. The defendant also urges that these licenses, together with the acceptance by the Crown Lands' Commissioner of fees and rent thereunder paid, are evidence of a parole or oral license from the Crown through its Commissioner to (him) the defendant, by virtue whereof he was justified in entering upon, and depasturing the lands in dispute, so far at least that he could not be deemed an " intruder" until such oral license was determined. The written licenses were in fact issued. The commissioner therein professes to grant to the licensees a right to depasture stock upon the land therein described for fourteen years from the date thereof. It appears also from the case, that the commissioner on one occasion, viz., on the Ist November, 1853, was paid by and accepted from the licensees both rent and licence fees in respect of these licenses, the rent being received in advance from the Ist October, 1853, to the 30th September, 1854. No other monies have been accepted under the licenses. Both the Crown and the defendant claim to avail themselves of the allegation in the defendant's plea that the defendant has from time to time annually since the making and issuing of the licenses tendered to the commissioner for the time being all rents, fees, and assessments payable under the licenses, but which rents, fees, and assessments, it is agreed, the commissioner has uniformly refused to accept. The pleadings and statement of facts, with the documentary and other evidence, run to considerable length, but it is not necessary for the present purpose to state the facts in a more detailed manner. The cause was tried before Mr. Justice Richmond, at Christchurch, in December, 1862, and that learned judge directed the jury to find a verdict for the Crown, on the ground that upon all or some of the grounds urged on the part of the Crown the licenses were invalid. He also directed the jury to assess substantial damages, not limited by the amount which would have been reserved and payable for rent fees and assessments at the usual rate. The jury found a verdict for the Crown, damages £2000, being an amount in excess of the amount wliicb would have been payable by the defendant for rent, fees, and assessments at the usual rate, under the existing Pasturage Regulations of Sir George Grey. The defendant applied to the Supreme Court for a rule to show cause why a new trial should not be had on the ground of misdirection, or why the damages should not be reduced to the amount which alone would have become payable from the defendant to the Crown, under the provisions of the rules and regulations affecting Crown lands, during the period covered by his intrusion. That rule having been refused by the Court below, the defendant appealed to this Court, under the 24th section of " The Court of Appeal Act, 1862." The argument before this Court took a wide range. The Imperial Act of 1840 (3 and 4 Vic., c. 62), with the royal charter of 1840, and the royal instructions thereon; the New Zealand Government Act of 1846 (9 and 10 Vic., c. 103), and the charter of 1846, with the instructions of that year; the "Crown Lands Ordinance," (Sess. 10, No. 1); and " The Crown Lands Amendment and Extension Ordinance" (Sess. 11, No. 10); the rules and regulations of August, 1851, for the issue of pasture and timber licenses; for the occupation of, to depasture stock and cut timber on the waste lands of the Crown. These Acts, Ordinances, and documents were reviewed, and various authorities were cited, upon the question whether the pasturage licenses pleaded by the defendant were valid. The result of this examination was, that it was admitted in argument that the licenses, whether valid or not in their inscription, were revocable at the will of the Crown, and that the defendant became an intruder, at all events, from the day when the Crown signified its revocation by filing this information. But it was contended that until the Crown signified, by some formal act, its revocation of the depasturing licenses issued by the Crown Lands Commissioner to the defendant, the latter could not be deemed an intruder on the Crown's demesne. In support of this proposition the case of Harper v. Charlesworth (4 b. and c. 574) was cited. But, in truth, the language of Mr. Justice Bayly in that case is not applicable to the present. For assuming that the Crown Lands Ordinance was not ultra vires, that the Crown Lands Commissioner, notwithstanding the 11th and 42nd sections of the Crown Lands Ordinance, had authority to grant an oral license of this description; presuming also that the issuing in fact of these licenses, taken together with the acceptance of rent from the defendant, is evidence that such oral license was granted to the defendant; still the facts show that no rent was accepted by the agents of the Crown subsequent to the 30th Sept., 1854, consequently that in respect to the period over which the intrusion is laid by this information, viz., from the 12th May, 1855, no rent was paid, nor was any act done by the agents of the Crown to recognise the possession of defendant as lawful. On the contrary, the uniform and persistent refusal of the Crown Lands Commissioner to accept any rent, fees, or assessments from the 30th September, 1854, notwithstanding the appellant from time to time annually tendered the same, would, if that refusal stood alone, be evidence that the Crown thereby revoked any supposed license. Further, considering that the terms of the ordinances and regulations under which the defendant justifies, and under which the licenses profess to be issued, were publice juris, the defendant must be presumed to have known that those regulations were not complied with; and, if so, he could not have mistaken the meaning of the Commissioner in refusing all those successive rents, fees, and assessments, which it was the duty of that officer to collect and recover from the defendant, had he been an acknowledged licensee of the Crown. We are, therefore, of opinion, that the defendant must be deemed to have been an intruder on the demesne lands of the Crown at all events from the expiration of the first year, in respect whereof alone the rent charge and license fees were accepted by the Crown Lands Commissioner. The only remaining question is whether the ruling ol the learned judge was wrong as to the measure of damages. His ruling was in effect that the Crown was entitled to the fair back rent value of the run during the period of the defendant's intrusion. Now, it must be observed, that prima facie the Crown is entitled as against an intruder on its demesne lands to the same measure of damages as a subject would be entitled to enforce against a trespasser. That measure, in the present instance, would be the value of the country during the intrusion or trespass which was the measure actually adopted at the trial. What then has the Crown done to disentitle itself in the present instance to its common law rights? The defendant argues that by section 12 of chapter 13 of the Royal Instructions of 1846, her Majesty made it part of the law of this colony, that the Crown should thenceforward hold its demesne lands in New Zealand in trust for the benefit of its subjects; and especially for the benefit of those then •ettled or thereafter to be settled in these islands.

Ilis argument seems also to imply that inasmuch as the Crown, at the time of the supposed intrusion, had, by regulations for the management of its waste lands in the province of Canterbury, (those regulations being made pursuant to the 32nd and 33rd sections of the 13th chapter of the same instructions), had fixed certain rents, fees, and assessments to be paid by runholders under pasturage licenses; therefore the Crown had denuded itself of its proprietary rights, ultra such rents, fees, and assessments, and that those rent;-!, fee-, and assessments being the extreme possible loss to the Crown, must form the extreme limit of damages. Upon the first blush this argument commends itself to our adoption. No doubt in ordinary cases damage suffered means loss incurred, and prima facie, the only loss actually suffered by the Crown from the intrusion of a stranger on its demesne would be the loss of the rents, fees, and assessments. Yet, even on the first impression, our suspicion is awakened by an argument ■which concedes to a wrong-doer advantages from his own wrong, .and places the subject who breaks the law to the detriment of the Crown and its subjects, in a position as favourable as could by possibility be enjoyed by a lawful tenant of the Crown's demesne. If indeed it were true in the sense contended for by the defendant, that the rights of the Crown were thus limited by law, this court could only give effect to the law. But the rights of the Crown are not so limited. The 12th section of the 13th chapter of the Royal Instructions, 1846, was but a declaration of Royal grace, bounty, and policy. It announced that the Queen would thenceforward hold the demesne lands of the Crown in New Zealand in trust for the benefit of her subjects (that is of her subjects in the empire at large), although more especially for the benefit of the settlers in New Zealand. But the Crown still retained its proprietary right to and beneficial interest in its demesne, albeit, for the benefit of its subjects. Those rights are asserted on the face even of the Ordinances and Regulations pleaded by the defendant; and moreover, the Crown retained and exercised the right to declare the particular trusts on which it would hold, and administer the waste lands comprised in that demesne. Assuming that, as regards the lands on which the defendant has intruded,

those trusts are declared in the Ordinances and Regulations pleaded in his behalf, still those regulations were no more than a gratuitous offer by the Crown of certain benefits on certain conditions to such of its subjects as should comply with those conditions. Had the defendant conformed to those conditions, he might, so long as the regulations were left to their operation, have enjoyed the benefit. But he has not conformed; he is an intruder, and during his intrusion, he cannot claim that benefit. But it is argued that the defendant seeks no benefit from the regulations. He was admitted, it is said, into the occupation of the lands comprised in his sheep runs by the Commissioner of the Crown, and then received formal licenses from that officer. Although, therefore, it may be true in law that no one can take advantage of the laches of officers of the Crown, still, it is argued, the Crown ought not to be permitted to gain positive advantage and profits from the intrusion of a subject thus sanctioned beyond what the Crown would have acquired from an accepted licensee. This argument has been already anticipated by the foregoing remarks. But if it be regarded from a nearer point of view, it will be found to proceed from a misapprehension both of the law and of the facts. For even if the measure of profit and loss to the Crown were that contended for by the defendant, it is by no nieans an universal rule that the utmost possible loss to the plaintiff must form the measure of his damages. Thus in the ordinary action for mesne profits, the damages are not necessarily confined to the rent of the premises. (See the cases cited in Mayne on damages, 254.) So, in actions of trespass, even where there is no special damage, the jury are not limited to the actual injury inflicted but may take into consideration all the circumstances. Accordingly, where a defendant was sued for a trespass by mining and carrying away minerals, the plaintiff'was held entitled to recover the value of the minerals severed, without allowing the defendant for the cost of severance. (Malin v. Porter, 5, M. & W., 352; Wild v. Holt, 9, M. & W., 672; Morgan v. Powell, 3, 2, 8., 278.) So here, if it be true in the narrow sense contended for by the defendant, that the Crown holds its demesne as a trustee, the Crown represents and' is trustee, not for this particular intruder only, but for the whole community as its cestuis que trust, and in order that it may give to the latter their full beneficial interest, the Crown must be entitled to recover from an intruder full compensation not only for his occupation of the lands, but for any injury to the trust estate. And here the defendant was in occupation of the land itself, holding a possession which was in the nature of an adverse possession, and so far calculated to affect the title. But in fact, the rent fees and assessments received from runholders do not represent the utmost profit to the Crown. The regulations under which depasturing licences were issued prescribe other conditions to which the defendant has not conformed. To allow an intruder to occupy on the

terms merely of answering in damages to the extent of the regular rent, fees, and assessments would be to place him in a more beneficial position than the lawful runholder. The Crown, moreover, exercises a control over its licensee, and derives from his law-

ful occupation a guarantee for the improvement in value of its lands, which it does not possess in the case of an intrusion. Lastly, we might pause before we applied to this case a rule which allows a trespasser to shelter himself from damages to the extent of the bona fide value of his occupation in the market, by shewing that the owner of the land would not in fact have made such a beneficial use of his property as would secure that market value to himself. It would be less unjust to make a trespasser account for all profits derived by himself from an adverse possession, than to make the owner account for his mode of managing his own property: for, if the profits made are to be the guage of damages, that guage should be applied rather against the wrong-doer. Here, however, it was not laid down that the Crown was entitled to all the defendant's profits as a sheep farmer. The jury were directed to take the fair annual value of the run unstocked: that is, what it would have been let for by a private holder during the period of the defendant's intrusion; and they were cautioned against applying to this bygone period that higher estimate of the value of runs which, in accordance with recent experience, is now generally adopted. Except the measure of damages now contended for by the appellants, no other measure was suggested during the argument which would be more favorable to the defendants than the measure explained to the jury. We are of opinion there was no misdirection in this respect. This appeal is therefore dismissed with costs.