Supreme Court.

New Zealand Spectator and Cook's Strait Guardian, Volume XIII, Issue 1371, 22 September 1858, Page 3

Supreme Court.

TUESDAY, SEPTEMBER 21, 1858. His Honor Mr. Justice Gresson delivered tlie following judgment in this case : — Taine v. Fox. This was an application on the part of the plaintiff for an injunction to restrain the defendant, as Chief Land Commissioner for the Province of Wellington, from interfering with a certain run, situate in the district of Warehama in the Province of Wellington, held by the plaintiff under a pasturage license from Francis Dillon Bell, Esq., Crown Land Commissioner, dated the Ist day of April, 1856. The case was argued before me some weeks ago, and stood over until after my return from Nelson, for the production of a document called for by me, viz., the defendant’s warrant of appointment as Chief Land Commissioner for the Province of Wellington. The facts of the case as they appear in evidence are, that by Mr, Bell's license of the date above mentioned, the plaintiff was licensed to depasture stock upon the said run for a term of 14 years from the Ist day of January, 18.56, subject to be sooner determined pursuant to the Wellington Land Regulations of 15th February, 1855. That the defendant by notice in the Wellington Gazette of 20th May, 1857, and which notice was dated 12th May, 1857, and purported to be given and signed by the defendant ns Chief Land Commissioner, declared the said license forfeited for non-compliance with the 7th section of the 11th of the above mentioned land regulations; and by a further notice in the same Gazette, dated 13th May 1857, notified as Chief Land Commissioner, that he would on the 22nd day of June then uext, let the said run to tbe highest bidder. That notwithstanding tbe receipt of a cautionary notice from the plaintiff, and a public protest in the newspapers, and also a notice in writing publicly delivered to the defendant by the plaintiff’s Solicitor immediately before the letting—the defendant ou the 22nd of June

1857, proceeded with the letting, and declared the run to be let to one Charles.Johnson’ Pharazyn, and in prosecution of his purposeof evicting the plaintiff, commenced proceedings in the Resident Magistrate’s Court against one Peter Hume, an occupant of the said run under an agreement with the plaintiff, for penalties, by reason of his alleged illegal occupation of the said run after the plaintiff’s license had been forfeited. . i . ’ The delay in applying for the Injunction lias been satisfactorily accounted for by the state of health of my predecessor, the late Mr. Wakefield, which rendered him’- for many months before his death incapable*, of attending to business. •‘ ~ ; ■ The only evidence furnished to me of the defendant's title as Chief Land .Commissioner, is a notice in the Wellington Gazette of 4th October, 1856, dated 25th September, 1856, slating that the Superintendent' had been pleased to appoint William ■ Fox, Esq., .J. P., Chief Land Commissioner of the-Province of Wellington, the appointment to date from the Ist October, then next; and a warrant' dated the 9th day of June, 1857, under the hand bf I. E. Featherston, Superintendent. I * Under the 2nd Section of" the Waste Land? Act, 1856,” the Superintendent wits empowered to remove any person then employed in the administration of the Waste, Lands of the Crown in such Province, 'and provisionally until other provisions ehould.be madel.by law in that behalf, to appoint any other person or persons with full powers to perform and exercise all the powers, duties, and functions which might be performed or exercised by any person so removed. No evidence bus been fur-

nished to me, although rcpeatedlv called for, of the removal of Mr. Bell from bis office of Crown Lands Commissioner, nor has his resignation been gazetted. I must therefore conclude that he hns not been removed. His functions, therefore, cannot have been transferred, by virthe of the 2nd Section of the Act, to the defendant, by a notice in the Gazette which does not allude to the removal of tbe Crown Land Commissioner, nor even notify the appointment

of the defendant to a similar office, but merely declares that be has been appointed by the Superintendent to a new office, the title of which (Chief Land Commissioner of the Province of Wellington) was not mentioned in the ” Waste Lands Act, 1856,” or known in the Province, and the duties of which arc undefined and even unnoticed. It appears to me, therefore, that the defendant's appointment under the Gazette notice of the 25 th September, 1856, was invalid, and that his powers as an acting Crown Land Commissioner, if they ever existed, did nut commence until his appointment by warrant under the hand of the Superintendent, viz., on the 9th day of June, 1857; and that therefore on the 12th May previously he had no power to adjudicate upon, or declare the plaintiff’s run forfeited.

Isay, “If they ever existed,” because I find that the warrant of the 9th June, 1857, appoints the defendant to do and perform all such acts, matters, and things within the Province of Wellington, as might, by any act or ordinance in force within the Province of Wellington, be done or performed by or in relation to, not a Commissioner of Crown Lands, the title used in the section of the Waste Lands Act recited in the warrant, and which is the title conferred by the Crown Lands Ordinance, which expressly provides that tbe Commissioners “ shall be and be called Commissioners of Crown Lands.” but a Commissioner of Waste Lands, an office to which it does not appear that any powers belong under any act or ordidinance in force within the Province of Wellington. But independently of any defect of title in the defendant as Commissioner. I differ from him wholly as to his construction of tbe regulation for the alleged non-comp'iance with which he declared the run forfeited.

The regulation is as follows :—“ Within 12 months after the issue of a license, the holder thereof shall he required to place on the run at least one breeding ewe for every 20 acres, or one cow or more for every 120 acres, and he shall be required to keep up at least that number of breeding stock upon the run during the whole period of his occupancy. Should the holder of a license not comply with the condition, his deposit shall be absolutely forfeited, and the run shall be let according as is provided for in the foregoing clause." (viz., hv public auction after one month’s notice in the Provincial Gazette'). Tlie facts which are alleged to have amounted to a violation of the foregoing regulation, are thus stated by the defendant in his notice of the 12ih May, 1557. “Mr. Taine did not during the year following tbe issue of his license, nor at any other time, place on the run any sheep whatever belonging to himself. Mr. Hume placed upon it, within tbe requisite period, the number of ewes required. Mr. Taine has no interest in these sheep—except tint he had previously advanced Mr. Hume £lOO, for which it was understood between them he was to have a security over the sheep, but no written security was taken by him. The terms on which Mr. Hume occupied the run were that he was to pay <o the Government the annual rent accruing in respect of the run, to pay a certain quantity of lambs and wool to Mr. Taine, as rent to him for the use of the run, and to give up the run to Mr. Taine when required, there being a sort of understanding that he would not be disturbed for seven years. The object of the regulations requiring the holder of a license to stock the run within I’2 months, and prohibiting a transfer till that condition is complied with, is to prevent trafficking in runs, as a marketable commodity, and mere matter of speculation, by parties who having got a license issued to them without the intention of stocking the run granted, may exact from others higher terms than those demanded by the Government, deriving a profit from the transaction. The arrangement between Mr. Taine and Mr. Hume appears to me precisely of the character which those regulations were intended to prevent.

I cannot allow that Mr. Taine has stocked the run in question as the regulation requires, and in conformity with the 7th section of regulation 11, I declare his license to be forfeited.”

It appears to me that all that is required of the licensee by the 11th regulation, is to place upon the run within 12 months, and to keep upon it daring the period of bis occupancy, the requisite number of stock ; the object of the regulations not being, as the defendant supposes, to insure that the stock shall be the

bond fide property of the licensee, but that the runs shall he stocked so soon as there may be stock in the Province available for the purpose: in other words, that the pastoral resources of the Province shall be developed with the least possible delay. This is the great object which the Legislature bad in view, and not to prevent the trafficking in runs, the transfer of which is expressly-sanctioned by the land regulations, and which even if it were not, the Crown Land Commissioner has not adequate powers either to enquire into or to prevent.

I am therefore clearly of opinion that the alleged breach of the 11th Regulation has not been committed by the plaintiff, and that his license is still undetermined..

But, it is objected on the part of the defendant, that by virtue of the Crown Lands Ordi-i nance, he is clothed with judicial powers,.; for the exercise of which he.is responsible only- to the Crown, and that to interpose by injunction would be to violate an acknowledged, principle, on.which Courts of; Equity disclaim the , exercise of jurisdiction over other ■ Courts, and restrain not the Courts, but the individuals who may be seeking to make them the ii’.sU'utnenb of injustice, . _ J e . The objection assumes, Ist, that the, defendant at the time he declared theqiliiintifflAyrdu: forfeited, was, and still is, clothed witlj all. Re powers of a.Crown Land 2ndly, that, as such Commissioner, be has, nbt' exceeded his jurisdiction. ’ , ' 5. | I cannot admit, for the reasons already i-tiiterl; that the defendant was at the time of the . .'iL leged forfeiture clothed with the powers of, a Crown Land Commissioner. But. even if he were, it appears to me that in declaring the run forfeited for breach of a condition wbifh has not, in fact, been broken, be has exceeded the limits of his jurisdiction. ' I ’ Under the plaintiff’s license, he was entitled to hold his run for 14 years, unless an. event’ should occur which has not occurred, I viz,',.the* plaintiff’s non-compliance with the 7tlr .clSqst’

of the lllh Regulation. So long as the Regulation was complied with, the jurisdiction of the Commissioner to kt tlie run was in abeyance. The plaintiff’s license would be of little value if it were in the power of a Commissioner, first, by an arbitrary exercise of will, to declare the license forfeited ; and then to plead his jurisdiction in bar to the redress sought by the plaintiff in this Court. This application appears to me to be not unsupported bv authority. In Attomev-General V. Forbes. 2 Myl & ’ Craig, 123, Lord Cottenluim, alter vindicating the jurisdiction of the Court to interfere in cases of nuisance against commissioners of sewers and other persons possessed of jurisdiction founded on Acts of Parliament, thus sums up,—“To say that this Court, when it interferes in such a case, is acting as a Court of Appeal from the Court of Quarter-Sessions, is anything but a correct representation of the fact. The jurisdiction is exercised, not for the purpose of over-ruling the power of others by way of appeal from their authority, but for tbe purpose of exerting a salutary control over all for the protection of the public." It is true that was a case of public nuisance; but this case comes under an equally well recognised head of equitable interference, viz., tbe case of an irreparable wrong done, for which the plaintiff can have no adequate remedy at law : for it is obviously impossible to measure by damages the prospective profits of a sheep run. '1 hat a wrong has been done to tlie plaintiff is manifest from the defendant's own statement.

The Court does not require any further evidence of this fact than has been furnished by the defendant himself. The only effect therefore, of refusing the injunction sought would be to oblige the plaintiff by prolonged litigation, the exnense of which must ultimately fall on the defendant, to seek from this Court under some other form of action, the redress which, were I to refuse the injunction, would be denied in the present suit. One principal object of our new rules was to do away with the distinct remedies hitherto applied in England to legal and equitable rights. Here, to use the language of the 2nd Report of the Commissioners upon the proceedings of this Court, “ the same Court which is to give protection, possesses also the power of taking cognizance of the right for which protection is sought, and of determining whether it exists. The question of the existence and limits of the right, if denied, will be raised in one and the same action, and the issue will he settled and carried to trial as in ordinary cases.” I feel bound therefore to grant a perpetual injunction in this case against the defendant’s interfering in the plaintiff’s run by reason of the alleged forfeiture declared by the defendant's notice of the 12th May. 1857, and with costs. Judgment for Plaintiff with costs.