SUPREME COURT.

Lyttelton Times, Volume XXXI, Issue 2603, 8 May 1869, Page 2

SUPREME COURT.

Fain at. Mat 7. (Before Mr Justice Gresson.) Hi* Honor sat in the Court ok. t 11 o’clock this morning. " Chamb ers,« RE THOMAS BARRETT. Mr Joynt’s application for probate ♦ . executors, was ordered to stand „ to lh e Tuesday next at the learned Until quest. asel * re. In Bankruptcy. RE CHARLES JAMES FOSTER • M . r l Fer , ed,ly H PP lied for an order confimg the choice of trustee, and fixi n(f a for last examination and discharge K date His Honor made an order as praved « • the last examination for the loth June ng RE HESRT DDNBFOKD. Mr Garrick applied, on behalf 0 f Walton. Warner and Co., for « & leave to prove against the estate. He hm 8 wish to disturb the dividend. a not His Honor made the order as prayed RE FRANCIS PITT. Mr Garrick, on behalf of Mr Cottrell plied for an order fixing the date of k 5 ’ t ap ' amination and discharge. ’ ex ' His Honor fixed the last examination t the 10th June. l jn { °f Mr Garrick appeared to shew cause Mr Wynn Williams in support of the rul’e & 4 After a long argument, his Honor said he would consider his decision. am be In Banco. BESWICK T. THE MAYOR, COCXCILLOSS BUROESSES OF KAIAPOI. ’ ® In this case Mr Joseph Berwick is uk tiff, and the Mayor, Councillors, and W* getses of the borough of Kaiapoi. defendant The action, wherein the plaintiff sought t recover damages from the def-ndants i ncf „ sequence of injuries which he alleged lie had sustained by reason of the defendants’ having obstructed the navigaion of the river Wai makariri in such a way that vessels could not pass to and from his wharf, was tried at nit' prius on March 20, and resulted in a verdict for the plaintiff, damages £175. Subsequently, on the 23rd of the same month Mr Travers moved for a rule nisi calling o'u the plaintiff to show cause why the verdict should not be set aside and one entered for the defendants or a new trial granted. His Honor granted the rule, to be returnable, by consent on the first Chamber day after vacation’ The argument on the rule was postponed until to-day, when Mr Garrick appeared to show cause, and Mr Wyun Williams in support of the rule. The learned counsel for the plaintiff said he appeared to shew cause to the rule nisi for a new trial which had been granted by his Honor, on the following grounds:—i. i That the said verdict was against evidence, 2' That the said learned Judge also erroneously rejected evidence on the part of the defendants, that the land in the pleadings mentioned was part of a public highway, such evidence being tendered by Augustus Frederick Noel Blikiston, Cyrus Davie, and John Cowell Boys, and from cross-examination of plaintiff. 3. That the said learned Judge also erroneously directed the jury to find a verdict for the plaintiff, whereas be should have directed the jury that inasmuch as the ; wharf in the pleadings mentioned was shewn to have projected into the river Waimakariri. to find a verdict for the defendants, and that be should also have directed the jury, that as the plaintiff had not proved his right to the , use of the passage of vessels as claimed by him, . thejury should find a verdict for the defendants. ' He might observe, with reference to the first ground, “ that the said verdict was against evidence,” that he was at a loss to understand in what way it conld be argued for a moment that the said verdict was against evidence. He had followed the argument of his learned friend Mr Travers, and it seemed principally to refer to the erroneous rejection by his Honor of the evidence on the part of the defendants that the land > mentioned in the pleadings was part of a public highway. He (Mr Garrick) followed his learned friend, and found him contending that the evidence which was tendered on the 1 part of the defendants, that the land referred to in the agreement was a public highway and that the defendants had no power whatever to grant the use of any portion of this public highway for the purposes of a wharf, should have been admitted. His Honor said, “ Then that is what you mean by the erroneous rejection of evidence ?” and Mr Travers replied that it was. He (Mr Garrick) was not called upon to argue this point, because, as be contended, the plea putting in issue the erection of the wharf was not open to the defendants, because they had not pleaded it to be a public nuisance. So that the only questions of fact that remained to be tried by the jury upon the other issues were facts that were indisputable—facts which were supported by an overwhelming amount of testimony, and which there was nothing to rebut, unless iiii Honor was wrong in rejecting the evidence on the part of defendants. He felt that there was nothing whatever on the question of rejection of evidence which he was called upon to argue. Mr Williams: I found my argument on that—that there was an erroneous rejection of evidence. In the declaration, I think the seventh paragraph, the plaintiff alleges that the wharf was on the land. Bis Honor: Abutting on the land. Mr Williams; No, your Honor, that it was on the land. That I contend is put in issue, and plaintiff’s counsel draws the issue to that effect—was the wharf erected on the parcel of land? It was proved by the plaintiff himself and by the defendants that the wharf was not on the land. That is the point I shall take when contending that the verdict is against evidence. Mr Garrick said that before he referred to the authorities cited by Mr Travers iu applying for the rule, he would draw the attention of the Court to what seemed to him to be a fallacy with reference to the grounds upon which this rule had been applied for in the first instance. His learned friend in apply’og for the rule drew particular attention to the wrong being the wrong of a public company. Now he (Mr Garrick) submitted confidently to the Court that that was an erroneous assumption to start with, because his Honor would bear in mind that his learned friend cited authorities to shew that inasmuch as it it was a wrong by a public company, therefore they were entitled to a certain permission with reference to the exercise of within their authority. Now, he (Mr Garries; contended that there was nothing to shew that the defendant* were a public company* and, as such, entitled to any protection. HU Honor would observe from the declaration in the first instance why the plaintiff sought charge the Council, the nature of their incorporation. ihe agreement entered into by tnetn, the taking of possession by the plaintiff, an the wrong done, because certain uncontradi tory averments were necessary to shew tna plaintiff had a right to recover. If he aw not shew his legal grounds of action, course the declaration would be bad for setting out sufficient facts. His Honor: You say that certain averments were made in order to shew why they w made defendants. .... Mr Garrick : To shew why they are liable under the Municipal Councils Ordinance. We have averred that it was constituted »n der act of the legislature, and that.its cc> » tution was duly proclaimed m the Go ment Gazelle. Then that the Council elected, and entered into the agreement upan which we r.-Iy; that we then entered into po session and continued in possession. which facts are not denied by the deL y Then we go on to allege that the -barf «■ erected , that we earned <« cer 2 ‘ 7th business ; that on or about gn fl February the defendants w f° D £ f “ L “he injuriously impeded the naviga 0 river, and prevented the trading to and from the wharf as I'® ; hitherto done. Then we shew tha »P? d was constituted a borough, and that w P rent under the agreement, the^eb^, l^r „ ( , the that it was competent for ns to c defendants with the habduy. ci[ js s friends’ contention is that ‘ be attention public body. I have £at a to that part of the argument, ana 1

loss to understand upon it can tl so debated-tbat it is a public body—so as to allow him to take advantage of the pnndole of law applicable to public bodies. Bis Honor: That principle being to protect them «s acting on behalf of the public. jUr Garrick : As your Honor stated on the dar on which the rule was moved for, supposing a public body tear up the streets m laying down gas japes, or leave a heap of rubbish on the highway, and I stumble over it in the dark and break ray leg, I would surely hare a right of action against it, although the act had been done in the exercise of its right as a public company. I apprehend it is indisputable that an allegation in a case or that kind stating that a certain company did so and so, would only be used for the purpose of ponding out the individuals against whom you have a complaint. So I say here that the facia cited in the declaration are only made use of for the purpose of pointing out the particular persons against whom we allege a grievance, and not as charging them with the commission of a wrong in their capacity as a public company. Suppose, for instance, I made a declaration against a public company for doing something in excess of their authority, I should have to bring my cause of action within the scope of the charge which I prefer, and it would have to appear on the face of the pleadings why I charged them. The declaration under the old rules of pleading would have been sufficient if it had merely alleged the fact that the Kaiapoi Council erected the bridge to the damage of the plaintiff, of course setting out sufficient damage to sustain the action. And to get rid of their liability, would the defendants not have to plead that they were a public company ; that it was done by them as a public company upon whom power was conferred on that behalf, and that such power was exercised by them with reasonable care, without negligence, and without excess of their authority 7 If that were shewn, such a plea, if maintained by evidence, would be a good answer to the action. But here there is nothing of the kind contended. So far as the pleadings go, your Honor will bear in mind that they merely deny the material allegations set out in paragraphs 6,7, and Bof the „ plaintiff’s declaration. But there is a special plea that the bridge in question was erected under the provisions of the Kaiapoi Bridge Ordinance passed by the Provincial Council. I will also ask your Honor to bear in mind that in setting up the constitution of the

Council the declaration shows compliance with the law in that particular. The other side say, in their plea with reference to their special defence, that the bridge in the declaration mentioned was constructed and erected under and by virtue of an Ordinance of the Provincial Council, and my learned friend contends that the act complained of was done by a public company duly authorised by statute. Let ns ask ourselves if that plea amounts to that. 1 submit it cannot be capable of such a construction. With regard to the second point raised in argument by my learned friend, suppose it were true that the act complained of was done by a public company in the exercise of a lawful authority, I contend that that, according to onr rules of pleading, is a defence that must he set up by plea, without which it is not open to defendants. It must be shown that they did not exceed the authority conferred upon them by Act. No such question whatever is raised by these pleadings, and no larger or more extended application can be given to the record that has already been tried than the declaration will admit of. Looking at the matter abstrac edly, I feel there is no necessity for further noticing the arguments of my learned friend on these points, because he has proceeded on a false assumption in arguing—first, that this is a public company, and that the act complained of was done by them as such. Even if the contention were tenable, it does not appear upon the pleadings that this act has been done without oppression to individual rights. My learned friend falsely assumes, not only that it is a public company, but that the acts are done without oppression, but it ia not set up in the pleadings that they had any public rights, or that the acts were done without oppression to individual rights. There is not a syllable in the pleadings about that, and this fact, I contend, sweeps away the value of my learned friend’s contention, and shuts the defendants out from such a defence. With regard to the third ground of my learned friend’s contention, the principal authority relied on was, that any act which amounts to a public nuisance, confers no right upon any particular individual, unless that particular individual has sub tained some special injury. That is a principle which nobody disputes. But I say again that my learned friend cannot assume that fact in connection with the present case. I say that there is no plea on the record that the erection of that bridge is a public nuisance. Ido not mean to contend that it would be only necessary for the other side to plead that it amounted to a public nuisance, bnt it would be necessary for them to allege sufficient facts to shew that it amounted to a public nuisance. (Dines ▼. Petley, Q. 8., 276.) His Honor :—Your allegation is, that you are injured in your rights by the erection of that bridge. Mr Garrick : I don’t say it is a public nuisance.

His Honor: But you say it is a bridge erected across a navigable river. Mr Williams: That is a public nuisance. Mr Garrick : I say that I have stated in the declaration no more than I would state in a declaration against anybody who had thrown a heap of rubbish on, or dug up the highway, by reason of which act 1 tumbled over and broke my leg. His Honor : That would be a public nuisance.

Mr Garrick : Not necessarily, your Honor. To be a public nuisance, it must be a nuisance to all the Queen’s subjects. All these subjects have a right to pass and repaas along the waters of a navigable river. In this case, however, the impediment applies to a particular class of individuals who wish to go from one side of the bridge to the other—in other words to such as Mr Beswick, who was

deprived of access to bis wharf, and the fact of it being an injury to a particular class rebuts the presumption of its being a public nuisance. We are treating the defendants not as a public company but as certain individuals who happen to be incorporated together for any purpose whatever, and who Ijave chosen to erect a bridge. His Honor : Persons below the bridge may wish to come up the river, and therefore the bridge would be a nuisance to them. Mr Williams -. The river is open to everybody. Supposing a man from Wellington wished to go up, and he was impeded by the bridge, he could indict the parties for having committed a public nuisance. Mr Garrick : I contend that in that case the action would be maintained by the public generally. But here it is a particular class which is affected, and therefore it is not a public nuisance but a private injury to the person who shows himself to be particularly injured by the act done. His Honor : It is true that the particular injury done here was the foundation of your action.

Mr Garrick : The particular class of persons who live above the bridge are more injured than those who live below it. Quite apart from Mr Beswick having a wharf at all, there was a particular damage done to him, distinct from those living below the bridge, inasmuch as he was shut out from the navigation of the river to aud fro. His Honor: Is not the injury done to his wharf the foundation of your action ? Mr Garrick: Undoubtedly, your Honor. But if paragraph 7 were out of the declaration, it would not be demurrable, and would not affect my cause of action. I would still have the right to recover (Dines y. Petley, Q. 8., 27G.) With regard to the rejection of evidence, my learned friend cor tends that the evidence is admissible under our rules of Court. I submit, your Honor, that that cannot be. It was so decided at the trial, and I contend that that was a good ruling. fßead the 80th rule, and cited Whittington v. Boxhall, 5.'. B.] Our rule is framed upon the basis of that authority, and I refer to it as shewing the principle which guided the framers of these rules. The defendants admit the existence of the agreement, our entering into and continuance m possession,

and they were estopped at the trial when they attempted to give evidence to contravene their authority for making that agreement. They wanted to show that the wharf was on the public highway, and they were estopped from doing so (Demise of Mytton and others v. Gilbert and others, 2 D & K., 169 ; Doe on the demise of Bay ley v. Hares, 4 B & A, 435.] There is nothing pleaded by defendants to shew that this lease was given hy them as a public company, acting in the exercise of any particular statuteubie authority (Hubert v. Grove; Chichester v. Lethbridge, in Wills, 71.) The learned counsel also referred to the cases cited by Mr Travers ou the former day, including Hex. v. the Directors of the Bristol Dock i orajiany, 12 East, 429, Rose an.i others v. Miles, 4 M. &!>., 101; Boulton v. Crowiher, 28. & C, 703 ; Wilkes v. tlie Hungcrford Market Company, 2 Bingham’s New Cases, 281; the Mayor, Council- | lors, and Burgesses of Colchester v. Brooke I 7 Q. B, 339; Dobson & Sution v. Biackrnore, 9 Q B, 991; Page v. Hatchett, BQ. B„ 593 ; Green v. the London Omnibus Company, 29 L.J. C.P., 13; Chamberlaine v. the W est End of London and Crystal Palace Railway Company, 31 LJ. Q.B. 201 and 32 L.J. Exch.) He submitted, in conclusion, that the defendants were not a public company, that the act done by them was not a public nuisance, but injurious against the plaintiff in particular, that the verdict was in accordance with evidence, and that consequently the rule must be discharged, witli costs. Mr Williams said that the question which, as it appeared to him, be had to rely upon most strongly, was one which ire thought his learned friend had endeavoured very carefully to avoid during the whole argument and at the trial, and he would still press it, because he was inclined to think the Court would agree with him that unless what lie contended was shewn, all the cases cited by his learned Mend and his arguments, were inapplicable. The declarations in the present case, and those referred to by his learned friend, were as different from each other as anything could be. In the cases cited, the declarations all commenced by shewing that special rights were <in joyed by prescription, long usage, or grant from the Crown. It must be quite clear upon the evidence in the present case, that the bridge across the river was a public nuisaocs; there was no doubt it was indictable. Tits proviso in tire Provincial Council Ordb anoe, giving power to erect the bridge, tut telling the Council “to take care not to impede the navigation ” was nonsense, because a single pile put into the river would be an impediment to the ravigation. Supposing a person from Wellington, Auckland, or anywhere else was to sail up the Waimakariri, which he has a perfect right to do, either in a private yacht or a trader, it was quite obvious that he could indict the bridge us a nuisance, but he could not recover damages ou the ground of an injury being done to private right. As a subject of the realm, he would have a right to indict the bridge as a nuisance, but he could not bring an action unless he had a right different to that enjoyed by the general public. That being admitted, the question was, how had his learned friend shewn that the plaintiff in this case was in a different position to the man from Wellington, Auckland, or elsewhere 7 His Honor: The answer to that, so far as one can judge, is by his having this particular wharf and being injured in his trade. Mr Williams: If that is all, then 1 say it is an impossibility that he can recover. How does he shew that he is different from the man from Wellington or anybody else 7 I want to know how it can be shewn that because he has entered into that agreement, the same right is given to him as that held by the parties in the authorities that have been cited, where a special right was held by prescription, long usage, or grant from the Crown. The plaintiff alleges in his declaration that he had the right of passage and navigation, but he hits not proved the possession of such a right either by long usage, grant from the Crown, or prescription. My learned friend said that he relied upon the agreement set out in the declaration. 1 submit that that agreement cannot in any sense whatever —I don’t care who has entered into it—give to the plaintiff the right which he says is analogous to the right set out by the parties in the cases that have been cited. His Honor : What I understand you to con ten. i is, that be has no right more than any of the public. Mr Williams: Exactly, your Honor. I want to know how can my learned friend shew that under that agreement the plaintiff’s right is analogous to the right set up by the parties in the cases w hich he cited. It would have been a different thing if he had shewn a right by grant, prescription, or long usage. If he had shewn that, I maintain there would have been no defence to an action of this description, but I contend that he is in no better position than anybody else above the bridge, every one of whom, if his right of action were maintained, could bring actions as well, and recover damages. In that case, the result would be simple ruination to this public body. His Honor : That case in 12 East is the one which most strongly bears out your contention.

Mr Williams : As an illustration of the inability of the Council to confer such a right on the plaintiff, there was an Act of the Provincial Council of Canterbury, passed in 1862, called the Beswick Wharf Ordinance, which was disallowed by the Governor on the ground that it was ultra vires. A Crown grant was afterwards obtained for the land which was required, and thepublic wharf was erected. That was a right conferred by the Crown. Supposing the wharf now in the possession of Birch and Co. had been above the bridge, it is as clear as noon-day that there would have been no defence to an action of this kind if it had been instituted by Birch and Co., because they would contend that they had a special right to navigate the river and charge tolls, which they were hindered from doing by the act of the defendants. Here the plaintiff has no such right, and has consequently no ground of action for private injury. If plaintiff had shewn this right, then he would have had a good cause of action. If it is necessary to do so now, I will shew that the agreement in question is not a sound one. The defendants do not say in that agreement *‘we empower the said Beswick to erect a wharf and to load and unload vessels at that wharf.” No person can put a wharf or pier below high-water mark unless he gets a grant from the Crown. I submit the agreement does not give the plaintiff such a right in any sense whatever. There is not a syllable in it upon which he can put such a construction. The most it can mean is, that as far as the Kaiapoi Council “ can or lawfully may,” has allowed him the use and possession of the land; it does not give him the right which he claims in this declaration. I submit that the question of estoppel could not arise in this case, and I will try to shew that they are not estopped, because they are shewn to be a public corporation. There is no doubt whatever that defendants must be taken to be a public body —that is to say they are trustees for the public. His Honor: What rights Jdo you say they are clothed with?

Mr Williams: It is not necessary that the defendants should shew particular rights. They are appointed for the borough. If necessary, they ought to have been set out. but I contend it is not necessary to shew that they had any particular rights. Theplainiifl sets up a right, and defendants deny this right in limine. They offer evidence to shew that the agreement deals with land of the Crown. My learned friend says “ You are estopped;” I say not, because the agreement is illegal. Mr Garrick: There is nothing to shew that the land belongs to the Crown. Mr Williams: The evidence would have shown that, and consequently the agreement is a nullity. His Honor: : Why did you not raise that defence ou demurrer ?

Mr Williams : I took the best opinion I could on the matter. The o Homey-General, from whom I received instructions, said he did not think that upon demurrer the case could have been properly decided. The learned counsel cited the Customs Revenues Act. the Marine Act, Whittington v.Boxhall, Vooght v. Winch, 2 B. & A. 662 ; Page v. Halchett ; Dobson v. Blaekmoie; Hex ▼, Smith, 2 Douglas, 411; and Harper v. Charlesworth, 4 B. & C. 574 ; and

concluded his. argument as follows : The principal grounds on which it is contended that the verdict was against evidence are the following :—lst. The plaintiff’s cause of action is founded on an agreement from the defendants to himself to lease a piece of land abutting on the River Waimakariri, by which agreement no such right as that contended for by plaintiff ia attempted to be given ; and therefore the plaintiff, having failed to prove such a right, was not entitled to the verdict. 2nd. That inasmuch as the plaintiff claims under this agreement the right, as alleged in paragraphs No. 6 and 7, of his declaration to this effect—“ 6. That a wharf is erected U|.on the said parcel of land in the said agreement mentioned, which said wharf and parcel of land adjoin to and abut upon a certain navigable river called the Waimakariri. “7. That the plaintiff carried on the business, or trade of a coal and grain merchant, and of right had, and still ought to have, a free passage and navigation along the said river for ships, vessels, and craft, going to staying at and returning from the said wharf to load and unload.” He has failed to shew that such wharf was on the laud, and in fact it was found quite the contrary. The 6th paragrajih of the declaration is distinctly denied under rule 43, and, therefore, the facts denied are in issue. Upon this denial the plaintiff framed the following issue, viz:—•'l. Was a wharf erected upon the parcel of land in the agreement in the declaration mentioned at the time of the alleged grievances.” The evidence of the plaintiff and the witness Day, not objected to, and now in your Honor’s notes, proved that the wharf was not on the said parcel of land, but, on the contrary, that the innermost pile was below high-water mark ; therefore the verdict was against evidence, and, in fact, the jury never found on this issue at all. It is contended, therefore, that inasmuch as under rules 42, &c., the defendant was entitled to give the evidence refused, and which evidence was actually taken, the jury were bound to find for defendant on that issue; and this being so, the verdict in favour of the plaintiff for damages was against evidence, because the plaintiff founded his claim solely through the right, as he alleges in paragrapli 7 of the declaration, of having a right of navigation along the said river for vessels going to, staying at, and returning from the said wharf to load and unload. It was clearly proved in evidence that the wharf was not on the land purported to be leased, and therefore the proof of his right to navigate to the wharf clearly failed. It is submitted that if rule 43 and sub-sections have any force at all, they must surely apply in this case. If they do not, under what possible circumstances could they be made to apply 7 Here, specific allegations are made in the 6th, 7th, and Bth paragraphs of the declaration, and these allegations are put in issue by the denial, under the above rules, which clearly put these material facts in issue, and on which the plaintiff himself framed an issue. The plaintiff alleges he had a right of passage and navigation to this particular spot ; he proved none by grant or prescription, and, therefore, as he failed to prove such a right, he was not entitled to damages, as in the absence of his proving such a right his remedy was similar only, and no greater than that of his neighbours, viz., by indictment for a nuisance (Beswick’s Wharf Ordinance, 1862, Beswick’s Wharf Ordinance, 1864.) It is confidently submitted that there must be a new trial on this point of the verdict being against evidence, as if the jury had found a verdict in accordance with the evidence on the learned Judge’s notes, they must have found for the defendants. On the second point it is contended that inasmuch as the plaintiff himself proved that the wharf was not in his occupation under the agreement, but on the contrary, that it was in the river, the learned judge should have directed the jury to find for the defendants, because the plaintiff by his declaration, only claims the right under this agreement to navigate up and down the river to the wharf. It is clear upon the evidence that the agreement gave him no such right, even if the wharf was on the land, and therefore his remedy was by indictment only ; the stoppage to the navigation affected him only in the same manner as it affected all the rest of Her Majesty’s subjects. The fact having been proved, viz., that the wharf was below high-water-mark, the right to erect it conld only emanate from the Crown, or from the Governor, under the Customs Begulations Act, 1838. It is quite clear that in the absence of a right by custom or long usage, it requires an Act of the Legislature or grant from the Crown to give individual rights. Supposing there was any appearance of such a right being given by the agreement, it would be in contravention of a public statute (the Customs Regulations Act, 1858), and therefore the defendants would not be estopped from showing that plaintiff bad no such right under such an agreement. But the agreement shows that the plaintiff was not allowed to erect a wharf without defendanta’ consent, and supposing that defendants had the power to permit plaintiff to erect such a wharf, it is not alleged or proved that he had their consent. And further, e»en if he had such consent, they had no power to grant such permission, and therefore it would have been illegal. Ou the 3rd point, it is confidently contended that the rejection of the evidence that the land in the agreement mentioned was a part of the public highway was erroneous, as it was clearly illegal to obstruct a highway in any manner. It is quite clear that if the defendants had even executed a lease for 21 years, and had professed to give the right claimed in the declaration, it would have been absolutely void for illegality. The evidence offered would have shewn that the land was a reserve for a high road, and therefore in the absence of permission from the Crown to occupy such land, mere possession is not sufficient as against the defendants, the contract itself being void for illegality. I contend, therefore, that the rule for a new trial must be made absolute.”

Mr Garrick said that no point had been taken of fraud or illegality in the agreement. If raised as a defence, there must be a special plea. His Honor said he would consider judgment.