SUPREME COURT.

Lyttelton Times, Volume XXIX, Issue 2344, 27 June 1868, Page 2

SUPREME COURT.

Fridat, Jcnb 26. (Before Mr Justice Gresson.) His Honor sat at the Court Chambers, at 11 o'clock. In Bankruptcy, re thomas sinqleh.crßt. The bankrupt, in person, applied for an order confirming the choice of Mr J. E. Graham as trustee, and fixing a day for last examination and discharge. His Honor made the order as prayed, fixing Thursday, the 13th August for last examination. In Banco.

CRAWFOKD V. THE TIHARO LANDING SERVICE AND SHIPPING COMPANT.

Argument on demurrer. Counsel for plaintiff, Mr Garrick; for defendants, Mr Harper. This is a demurrer to the plaintiff's declaration, which sets out, in the first place, the Crown grant from the Crown to the Superintendent of Canterbury, of certain land lying between high and low water mark, at Timaru, for a landing service and other public purposes. It then sets out an Ordinance passed by the Provincial Council, empowering the Superintendent to lease the land and levy rates and tolls. There is also a lease set out in the declaration, which has been granted by the Superintendent to Captain Crawford, demising and leasing to him to farm the rates and tolls which were to be collected from shipping and other landing charges. The declaration goes on to state that the defendants have landed certain goods, without paying any charges or dues to the plaintiff, but which he now seeks to recover from them by an order of the Court. Mr Harper said that the demurrer was somewhat lengthy, and for the sake of convenience, be would divide it into three head". Firstly, it was a demurrer as to the validity of the Crown Grant mentioned in the declaration; secondly, as to the validity of the Ordinance of the Provincial Council mentioned in the delaration (which he contended was ultra vim); and thirdly, as to the validity of the lease granted under the powers contained in the said Ordinance. With regard to the first heud—namely, as to the Crown grant—he contended that it is void for uncortainty—that the trust for the landing service is not sufficiently specific—that the words " landing service" do not convey specifically and definitely the purposes for which the Crown grant is alleged to have been made. In support of this view, the learned counsel quoted Brougham's Legal Maxims, page 55, and directed his Honor to the law as laid doivn in the same work in regard to the construction of grants from the Crown, being in all cases taken to be construed most strongly against the grantee,

His Honor inquired if Mr Harper was prepared to refer to the Public Reserves Aet, wliieh stated how the public trust should be get out. The Act to which he alluded touched very closely on the case now under argument.

Mr Harper replied that he would come to the Act presently. As to the validity of the Crown grant, his argument would hinge mainly upon this ground—that it has not divested the Crown of its interest in the land between high and low water marks, or invested the Superintendent. The trust privatum of the King and the trust publicum were inseparable, as it were. The trust privatum could never be exercised when it interfered with the rights of the public. Although the public cannot clainf an exclusive right to the land between high and low water marks, yet the Crown cannot prevent them going over it; neither party could set up an absolute right to the use of the sea shore, Jf his contention is correct, that the rights of the public to the sea shore between high and low water marks cannot be interfered with, then this grant, absolutely granting to one individual, and enabling him to lease this land, and giving to him, under the lease, the sole power of preventing any other persons from occupying or even sailing over the land in their own boat without paying certain charges to him, is altogether repugnant to the principle of the right of the public to lands on the open sea coast. If that is not the law, the effect of the lease granted by the Superintendent to the plaintiff is this—that no person, with the exception of the lessee, can occupy these lands, and that no person can pass over it without paying him certain tolls. He contended that the rights of the public had been interfered with, and that the Crown Grant, by interfering with these rights, is necessarily void. It is void on two grounds—first, because it is uncertain and indefinite in its terms, and the construction of the Crown Grant is by law construed most strongly against the grantee; and second, because it has the effect of creating a nuisance and affecting the rights of the public, and for these reasons he contended that the grant is absolutely void, and does not divest the Crown or invest the grantee. Then as to the question of the Ordinance passed by the Provincial Council. The ground upon which lie relied in support of this part of the demurrer is, that the Ordinance Is bad as affecting to deal with lands of the Crown, his contention being that the lands in question are still the lands ot the Crown, and that the Provincial Council had no power to deal with them under the Constitution Act.

His Honor: You contend that the letting of the tolls is an interference with the lands ?

Mr Harper: With the public rights. His Honor: We are now on that part of the argument, that the Provincial Council had no power to pass the Ordinance to lease the lands. Mr Harper: Both generally and specially, I contend they had no power. I contend that the Ordinance is bad as affecting to limit the rights of the public over lands lying between high and low water marks. What I have said before with reference to the trust publicum, will apply in that case. The fifth ground of contention appears to be a repetition of the fourth, but it goes further,and says that the said Ordinance is bad as affecting to limit the rights of the public over lands lying between high and low water marks, being lands of the Crown, I contend that the Provincial Council has no power to deal with lands of the Crown, or to pass a law limiting the rights of the public in respect to lands over which the Council have no control. I contend, sixthly, that the said Ordinance is ultra vires in two respects—firstly, because it authorises the imposition of tolls and rates, and secondly, because those rates and tolls are imposed upon the public for the use of lands over which they have a right. With regard to the lease, I contend that it is bad as being in excess of the authority given to the Superintendent by the said Ordinance, assuming, for the purposes of my argument, that that Ordinance is not ultra vires, The learned Counsel referred to the terms of the second clause of the Ordinance in support of this latter contention. Some discussion ensued between the learned Counsel and the Court as to the expediency of condensing the grounds of argument. Ultimately, it was decided that the case should Btand over for a week for Counsels' consideration as to whether it shou'd be stated on special case for the Court of Appeal, or the demurrer be removed by order of the Court, 'under the 19th section of the Court of Appeal Act.