SUPREME COURT, WELLINGTON.

Otago Witness, Issue 360, 23 October 1858, Page 1

SUPREME COURT, WELLINGTON.

(From the Lyttelton Times.) An important action has been brought before the Supreme Court by Mr. Tame, a runholder, agajnst Mr. Fox, who, acting under appointment from the Superintendent as Chief Land Commissioner, had deprived Mr. of his run for alleged breach of Regulations. As the correct reading of the law on the subject is of great importance to stockowners, we give in full the

JUDGMENT OF THE COURT delivered by Mr. Justice Gresson, on the 21st September. Tim ««•« an application on the part of the plaintiff lor 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 Ware- 1 hama, 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, 1836, 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, 1856, 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, ISJ7, and which notice was dated 12th May, 1857, and purported to be given and signed by the defendant as 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 next, let the said run to the highest bidder. That notwithstanding the receipt of a cautionary notice from the plaintiff, and a public protest in the newspapers, and also notice in writing publicly delivered to the defendant by the plaintiff's solicitor immediately before the letting, the defendant on the 22nd* June, 18.36, proceeded with the letting, and declared the run to be let to one Charles Johnson Ph;\rnz\ n ; and in prosecution of his purpose of 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. wThe delay in applying for the injunction has W) satisfactory accounted for by Ac state of health of my predecessor, the late Mr. "^akefield, 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 24th September, 1856, stating that the Superintendent has 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, 1807, under the hand of I. E. Featherston, Superintendent. Under the 2nd section of" the Waste Lands Act, 1856," the Superintendent was empowered to remove any person then employed in the administration of the waste lands of the crown in such province, and provisionally, until other provision should be made by law in that behalf, to appoint any other person or person 5 !, with full power to perform and exercise all the powers, duties, and functions which might be performed or exercised by any person so removed. No evidence has been furnished to me, although repeatedly called for, of the removal of Mr. Bell from his office of Crown Lund Commissioner ; nor has his resignation been Gazetted. I must therefore conclude that he i has not been removed. His functions, therefore, cannot have been transferred by virtue of the 2nd section of the Act, to the defendant, by a notice in the • Gazette.' which does not allude to the removal of the Crown Land Commissioner, nor even notify the appointment of the defendant to a similar office, but merely declares that he has been appointed by the Superintendent to a new oflicp, the title of) which , (Chief Laud Commissioner of the Province of Wellington') was not mentioned in ! " the Waste Lands Act, 1836," or known in the province; and the duties of which are undefined, and even unnoticed. It appears to me, therefore, that the defendant's appointment under the 'Gazette ' notice of 25th September, 18.56, was invalid, and that hi« powers as an acting Crown Land Commissioner, if thqy ever existed, did not commence until his appointment by warrant, under the hand of the Superintendent, viz., on the 9th day of June, 18.>7 ; and that therefore on the 12th May previously, he had no power to adjudicate upon or declare the plaintiff's run forfeited. I say " if they ever existed," because I find that the warrant of the 9th June, 1 8.37, appoints the defendant to do and perform all such acts, matters, and things within the Province of Wellington a* might by any Act or Ordinance in force within the Province of Wellington be done or performed by or in relation to, not a Commissioiior of Crown Lands, the title used in the section of the

Waste Lands Act recited in the warrant, and i which is the title conferred by the Crown 1 Lands Ordinance, which expressly provides that the 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 be- 1 long under any Act or Ordinance in force | within the Province of Wellington. i But independently of any defect of title in j the defendant as Commissioner, I differ from j him wholly as to his construction of the j PiP^iilation, for the alleged non-compliance \ with which he declared the run forfeited. ; The Regulation is as follows :—": — " Within 12,? months after the issue of a license, the hoiderc thereof shall b? required to place on the run at least one breeding ewe for every 20 acres, ot one cow or more for every 120 acres; and \m 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 this condition, his deposit shall be abt-o-lutely forfeited, and the run shall be let according as is provided for in the foregoing clause " (viz., by public auction after one month's notice in the Provincial ' Gazette '). The 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 12th of May, 1857:— " Mr. Tame did not, during the year following the issue of his license, nor at any other time, place on the run any sheep whatsoever belonging to himself. Mr. Hume placed upon it, within the requisite period, the number of ewe 3 required. Mr. Tame has no interest in, these sheep, except that he had previously advanced Mr. Hume £100, 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 to the Government the annual rent accruing in respect of the run, to pay a ceitain quantity of lambs and wool to Mr. Tame as rent to him for the use of the run, and to give up the run to Mr. Tame 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 12 months, and prohibiting a transfer until 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. Tame and Mr. Hume appears to me precisely of the character which these Regulations were intended to prevent. I cannot allow that Mr, Tame has stocked the run in question as the regulation requires, and in conformity with the 7lh 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 jupon the run within 12 months, and to keep upon it during the period of his occupancy the requisite number of stock; the object of the Regulations not being:, as the defendant supposes, to insure that the stock shall be hova fide property of the licensee, but that the runs shall be 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 he developed with the least possible delay. This is the great object which the legislature has in view, and not to prevent the trafficking in run", the tiansfer of which is ex- j prcssly sanctioned by the Land Regulations, and which, even if it wore not, the Crown Land Commissioner has not adequate powers either to inquire into or prevent. lam therefore cleaily of opinion that the alleged breach of the 11th regulation has not I been committed by the plaintiff, and that his j j license is still undetermined. i But it is objected on the part of the defend- 1 ant, that by virtue of the Crown Lauds Ordinance, he is clothed with judicial powers for j the exercise of which he is responsible only to j 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, hut the individuals who may be seeking to make them the instruments of injustice. The objection assumes, Ist. That the defendant at the time he declared the plaintiff's run forfeited, was, and still is clothed with ali the powers of a Ciown Land Commissioner; and, 2ndly. That as such Commissioner he has not exceeded his jurisdiction. I cannot admit, for the reasons already stated, that the defendant was at the time of the alleged 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 which ! has not, in fact, been broken, he has exceeded ! the limits of his jurisdiction. ■ Under the plaintiffs license he wns entitled i to hold his run for 14 years, unless an event 1 •should occur which has'not occurred, viz., the ' plaintiff's non-compliance with the 7th clause \ of the 11th Regulation. So long as the regulation was complied with, tin* jurisdiction of, the commissioner to let the run was in abey- | ance.

The plaintiff's license would be of little value if it were in the power of a commissioner, first by an arbitrary exercise of v ill 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 by authority. In Attorney-General jv. Forbes, 2 Mylo and Craig, 123, Lord Cottenham, after vindicating the jurisdiction of the Court to interfere in cases of nuisance J against commissioners of sewers and other I 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 overruling the powers of others, by way of appeal from their authority, but for the purpose of exerting a salutary control over all, for the protection of the public." It istrue, that was a case of public nuisance; but this ease comes under on equally well recognised head of equitable interference— viz., the case of 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.

That a wrong has been done to the 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 he, to oblige the plaintiff by prolonged litigation, the expense 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 principle 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 second report of the commissioners upon the proceedings of this Court, "the same Court which is to <rive 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 be 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 with 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.

The following case, decided in the sarn^ court, also carries with it some interest, as showing how the law affects such cases :: — ■

Bergin v. Mountain. — This was an action brought by Ann ftergin, a widow, against Thomas John Mountain, a publican, to recover damages for the defendant 'having trespassed upon the plaintiffs land and forcibly pulled down the house in which plaintiff was residing. Mr. King and Mr. Bunny appeared for plaintiff, and Mr. Brandon for defendant.

The facts of the case were as follow : — On the morning of the 11th of May, the^defeudant at day break with four men went to plaintiff's hous2 and commenced pulling off the roof, the plaintiff at the time being in bed with her children. On the plaintiff coming to the window to see what was being done she remonstrated with the nffen, and told them they were trespassing; but the defendant told the men to pay no attention to her but to go on with their work. Upon that plaintiff sent one of her children for Mr. Cheesman, a solicitor, residing near, who at once went to the place and forbad the defendant proceeding further, telling him he was acting illegally ; the defendant replied he was acting under the advice of his solicitor, Mr. Brandon, and he should go on. And in fact he did go on and completely demolished the house. An action was the same day commenced in the Supreme Court, to which action the defendant pleaded that the plaintiff was not in possession of the house, and that the same was the property of defendant. At the trial, which lasted until 7 o'clock in the evening, the plaintiff clearly established her legal right to the property. And the on\y excuse the defendant made was that he claimed the property in right of his wife (but he failed to show a shadow of title in himself or his wife to the property), and that what he had done was by the direction and advice of his solicitor, Mr. Brandon.

The Judge in summing up strongly commented on the conduct of the defendant as being unprovoked and without excuse.

The Jury gave a verdict for the plaintiff, damages £150.