+
!
1.
COURT OF APPEAL. APPEAL OF DE KEYSER'S HOTEL
ALLOWED.
C.O 22115
RES
REG 1 APR 19
DE KEYSER'S ROYAL HOTEL, (LIMITED) v. THE KING.
(Before the MASTER of the Rozza. LORD JUSTICE WARRINGTON, and Load JUSTICE DUKK.)
The Court delivered its considered judgment this morning in this appeal by the suppliants, De Keymar'k Koyal Hotel (Limited), from a decision of Mr. Justiçà Peterson (reported in The Times of March 23, 1918, and in 34 The Times L.R.. 320) dismissing their claim by petition of right against the Government for a declaration that they were entitled to the pay- ment of an annual rent so long as their hotel premises were ocoupled by the War Office, and for the payment of £13,520 for oncupation of the premises from May 8, 1910, to February 14, 1917,
The appeal was argued last year, and was reported in The Timan of July 18, 20, 23, and 24, where the facts are fully sat "out." Subsequent proceedings Arising out of a search directed by the Court to be made among the State l'spers in the Record offes similar to that which was made in the Ship Money case (Rex. Hampden, 3 Howell's State Trials), have been reported in The Times of October 23 and December 18, 1918, January 22-29, 1918.
Nir John Birane.
Hoott,
K.C., and Mr. W. Copping appeared for the appellants the Attorney-General (le Gordon Howarh K.C.), the Solicitor-General (Sir Ernest Pollock, K.C), Mr. Auster-Cartmell, Mr Lowenthal, and Mr Brankon for the Crown ; Sir Lewis Coward, K.C., and Mr. F. Whinney held watching brints for other parties,
The Court allowed the appeat.
JUDGMENT OF THE MASTER OF THE ROLLS.
The MASTER of the ROLLA, in the course of bis judgment, said that the case raised a question of great public importance-namely, whether the Crown was entitled as of right to neq sad occupy any lands, buildings and premises of subjects required for administrative purposes in connexion with the De- fence of the lealm for an indefnite period without any obligation to make any compensation for such use and occupation. The suppliants insisted that although it might have been necessary for the organi zation and administration of a fores required for the
ne
and security of the resim that the Government
Occupy their
premises, there
not and never had been any necessity for the safety of the realin to refuse to for them, and they farther
PAY insisted that the Government were bound by statute The suppliants were the owners for a torm to pay. of years of De Kayser's Royal Hotel on the Thames Embankment, of
of which Mr. A. I. Wh of the
had be
boen appointed receiver and manager by Chancery Division on June 25, 1915. Mr. Whinney accordingly oried on the hotel business of the company until possession of the hotel premises takan u behalf of the Secretary of State for War. On April 16, 1916, the Supplies Division of HM. Omon of Works naked Mr. Whinney by letter at what rent he would be propared to let the whole of the bot 1 promisos torcepting the shops) to that Department, for use as offices for the remaining period of
WAT and probably for a maximum period of three
month affar the conchasion of
of peace. Mr. sugemaling £19,000 far, subject to various condi
Whinney answered tions. An interview followed on April 28, at which Mr. Whinney was asked whether he could not make the rent $17,500, and the next day the Office of Works wrote saying that it would be to the advantage of all concerned that the amount to be paid by the Government shoull be referred to the Defence of the Roata Loss Cutumission, and that in those elrommatamom the Board had no option but to com- municate with the War Office with a view to the hotel peamine being requisitioned under tho Defence of the Beira Acts in the umaal manner.
On May Mr. Whinney wrote declining to concur in the muggestion of a reference to the Defence of the Realm Leases Commission, but agreed to give posses- sion of the premises to Mr R. C. Cole, the sentative of the authorities, subject to the consent repre of the Court, which was duly obtained. The attitude Mr. Whinney throughout was to give affect ta hermary trouble or delay, but to preserve all legal rights. He gave up possession on May 8, baving previous{v arranged for all the guests to leave the hotel. The Army Council took posession on that date, after a further letter had been sent enclosing form of cisim for submission to the Loeses Com- zalexion and stating that compensation was made a gruis and was strictly limited to the losses ans
et, and ever since that date they had retained possession.
adopted by Fishes of the authorition without un-
W
His Lordship then referred to the evidence of Sir Charles E. Heath, D.Q.M.G., and of Mr. Fane, of the Umer of Works, and said that throughout the whole perind the
• premises had been used for adrainistrative purposes, for which they were considered suitable. Do May 3 Mr.
Phinney wrote to the Office of Works Ting that the loss involved in the closing of the hotel would be hea
beary and suggesting that the should be submitted to arbitration. Upon the facts question the conclusion must be arrived at that the hotel and precise were occupied and possession thereof given by the consent of the owners, although they reserved all their rights to rent or compensation. The claim of the suppliants was for rent or compensation for use aud occupation during the period of occupation by the Government. The ground rent payable by the company under their lenses was £9,757 a year,
THIS GRAIN BY THE CROWN.
The Attorney-Gneral by his answer claimed only the right to take and use the premises for so long na might be necessary for securing the public safety and the defence of the real during the continuance of a state of war between his Majesty and any foreign Power, and claimed that possession was awfully taken under the authority of the competent utilitary authority by virtue of his Majesty's Royal Prerogative as well as by virtue of the powers conferred by the Defence of the Realma (Consolidation) Act, 1914, and of the regulations saed thereunder by his Majesty in Council. Ho denied that
that any rent or compensation was by law payable to the suppliante, either under the Defence Act, 1842, or at all.
It was therefore necessary to consider what powr re by lay
law vested in the Sovereign and exercised by the Executive Government over the lands and houses Babjects required for the defence of the realon. Those
which the Executivo exercised without Parliamentary authority were
Prerogative. Where, how- comprehensive term of pre comprised under the
Parliament had intervened, and had by statute for the exercise of powers previously within manner and subject
i
Fore
of
ever
powers
provided
the Prerogativa in a parlons contained in the
to the limitations and
the
atatule, what use would there be in imposing limita tions if the Crown could at its pleasure disregard thom and fall back on the Prerogative? It was indred expressly where admitted by the Solicitor-General that
within the
le Treegative was provided for by statute the Prerogative was mergai statute (Ex paris Postranster-Lieneral, 10 Ch. D., 595, per Sir George Jessol, M.. referring to
to Bacon's Abridgaeat, 7th e, al p. 467). As instances of the exercise of the Royal Prerogative, the Crown relied particularly on the right of entering upon the land of a subject to dig treuths and make fortifications, and to take seltpetre for making gunpowder. Various parugra trosa writers of authority were cited in deal- ing with those matters, o.g., Caitty on the Prerogatives ⋅ of the Crown, chap. IV,, svelion ¥., p. 44; 2 Trust., 30 ;
1 Tusi., 3; 1 Rolfe's Rep., 152,
The SaltPETRE ČASE.
In the Baltpetro case ([1807] 12 Rep., 12) it wað resolved" When enemies come against the realm to the sea cost it in lawful to come upon my land a
ladjoining
to the same coast, to make trenches or bulwarks, for the defence of the realm, for every subject hath benefit by it. And therefore, by the common law, every man may come upon my land, as
s Ed. IV. Appears 8
21, und in such case, on such extremity, they may dig for
gravel for the making of bulwarks for this is for the public, and every one hath benefit by it."
A statute to the some effect was passed in 1512 (4 Ben. VII., c. 1) providing that it should bo lawful
for the King's subjects by the advice and assignment of the Justices of the Peace or Sheriff to make all!
manner of bulwaris in every nieu's round, and without any manner of Tone, against any of the Kent or action by any
subjects for spy much matter or cause. The Act was a temporary one. Such powers obviously bad reference to preventing
niensures Work | or repelling
active invasion when
Saltpetre was s at or along the coast. necessary matter of purveyance, and was paid for.
His Lordship then referred to certain warrants for searching for salt petre between 1499 and 1629, and said that in any case the right to take saltpetre was described as a "purveyance." and purveyances were abolished in 1850 by the statute 12 Car. II., c. 4.
THE DEVELOPMENT OF HOSTILE METHODA. Since the reign of James I. the methods of scientific warfare had vastly increased. For the safety and security of the kingdom permanent forts and works had to be constructed, great naval, military, and aerial organizations had to be maintained, requiring maay depôts, and a very large staff of officials to pro vide for manufacture and supply of every Lind, pay, and control. It was found necessary to resort to Parliament to obtain power to enable the Executiv tiovernment to came out effectively the proper pro ре toctive measure, and from an early date the maneat acquisition of land, or the temporary occupa tion and use of for
it such a period an the exigence of the public service should require, had been regulated and provided for by statute, statutes were passed for the acquisition of particular properties Folla, hetteries, Ar
Then in times of national danger during the Napoleonie wars statutes were passed regulating the taking possession and user of land. but their operation was limited to the duration of the period of the French war.
At first separate
The next step was to consolidate the provisions Delence of the Realm Act, allowing land to be
into a percermanently acquired subject to certain
mstrictions, where the owners did not agree to the Crown's proposal, and when a state of war again arose statutes were passed enabling regulations to be
restrictions.
it made for relieving against those would
necessary to refer to those statutes in detail. It had been
behalf of the Crown that in the urged on past where land had been occupied or need for the defence of the realm there was no legal obligatio on the part of the Crown to pay, but that commis niony had been issued from time to time to determine what payments should be made by the Crown e malia, and the case bad stood over from time to time to enable the records to be searched and infor mation obtained to show (a) acts of interference by the Crown with private property in land for tho purposes of the defence of the realm; (5) claims by subjecte for compensation in respect of such inter foraneo (1) as a matter of right, (6) as a matter of grace, and as to the hars of such claims; (c) the manner in which such claims were dealt with, and the resulta thereof.
345