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Act, 1842, or under the powers conferred by the Defence of the Realmn Acts, 1914, and the regulations made thereunder, or under both of these legislative provisions combined, the Crown was entitled to take possession of the Hotel, but they contend that by whatever authority possession was taken they are entitled as a matter of legal right to compensation in the ordinary sense, that is to say, to a payment in the nature of rent or purchase money for the occupation by the Crown of their property. The Crown, on the other hand, insists that possession was taken either by virtue of the Royal Prerogative or of the powers conferred by the Defence of the Realm Acts and Regulations, and that in the case of possession being so taken, no compensation of any kind is by law payable to the subject. It contends further that possession was not taken under the Defence Act, 1842, and that even if it were the right to compensation thereby given was suspended by the Defence of the Realm Acts and Regulations, and cannot be enforced by the suppliants.
The building in question is a large hotel of a modern type with from 300 to 400 rooms. The outbreak of war had deprived it of much of its custom, and at the time in question it was in the possession of Mr. A. F. Whinney as receiver and manager appointed in a debenture holders' action, and was being carried on at a loss. The Government required accommoda- tion for the Headquarter Staff of the Royal Flying Corps, and early in April 1916 entered into negotiation with Mr Whinney with a view to their occupation of the premises at a rent. The parties did not come to terms although negotiations were not finally broken off, when on the 1st May 1916 Mr. Whinney was informed that possession would be taken under the Defence of the Realm Acts. Mr. Whinney, without prejudice to his rights, offered no opposition, and on the 8th May he delivered possession to the Officer of the Crown, having previously taken steps to procure the evacuation of the hotel by the guests then staying there. This was, as he says, under protest," but on looking at his evidence I think what he protested against was the resort to the Acts while the correspondence as to rent was still pending, and, indeed, from subsequent correspondence it is clear that he considered this question as still open. See particularly Mr. Whinney's letter of the 5th May. On the facts I should come to the conclusion that, 80 far as possession was concerned, he gave this without compulsion on the footing that the question of compensation might be the subject of negotia- tion. It was not till afterwards that Mr. Whinney understood that the Crown finally denied his right to compensation.
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The present case differs in its facts from the case in In re a Petition of Right, first, in that the subject matter of that case an aerodrome or aviation ground on the coast-was of itself of military importance, and, secondly, that in that case possession seems to have been taken altogether in invitum. Moreover, there is a great mass of material before the Court which was not before it in the previous case, and considerations and arguments have been submitted to us which were not submitted to the Court then, and I propose to consider the question for the moment as if the Court were unfettered by the previous decision to the consideration of which I will return later. I propose to confine the present judgment strictly to the consideration of the question we have to determine, viz., whether, where the Crown, ie, the executive authority acting in the interests of the community at large, and on the ground that what it has done is necessary for the national security and the defence of the realm, has taken possession of and has occupied land of a subject, that subject has a legal claim to compensation for what has been so taken and used. It is really not disputed by the supplíants that in the circumstances I have mentioned, the Crown has power by its officers to take possession of and use or occupy the subjects land; the sole question is as to the legal right to compensation. The first
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contention on the part of the Crown is that the power in question is part of the Royal Prerogative. We have had an interesting historical and constitu- tional discussion on this subject, and we have had submitted to us many ancient records pertinent thereto. These last have at least this negative value, that there is no trace in any of them of an assertion on the part of the Crown of a right to take and hold possession of the subject's land without paying for it. It is unnecessary, however, in this case to decide whether an exercise of the prerogative would give rise to any and what rights in the subject, inasmuch as the Solicitor-General (and in my opinion rightly) admitted that where an act of the Crown is authorised by Statute any pre-existing prerogative right to do the same act is merged in the statutory authority, and the act in question must be deemed to have been done by virtue of the latter. In my opinion it is clear that under the Defence Act, 1812, possession of the land might have been obtained subject to the restrictions in that Act contained, and further that those restrictions were suspended by the regulations made under the Defence of the Realm Acts, so far, at all events, as to enable the competent naval or military authority to take possession without going through any of the preliminary steps or satisfying any of the conditions prescribed by the Defence Act, 1812. The act, therefore, was done under statutory authority, and preroga- tive is out of the question. Does the exercise of this statutory authority involve a legal liability on the part of the Crown to pay compensation ?
Prior to the year 1798 a number of Acts of Parliament were passed, the earliest of which was of the year 1708, authorising the Officers of the Crown to acquire compulsorily on its behalf land in various parts of the country on or near the coast for the purpose of fortification in view of a possible invasion or attack. In each case provision was made for the payment of compensation, to be assessed, in default of agreement, by a jury. The operation of these Acts was confined to certain localities and to the permanent acquisition of land, but in the year 1798 an Act of a more general nature was passed. It provided means by which certain Officers of the Crown might, by taking the steps thereby prescribed, obtain, either by agreement with the owners or compulsorily, the possession of any ground wanted for the public service during such time as the exigence of the service should require, and it provided for the assessment by a jury and payment of compensation for the possession or use of such ground. Certain conditions had, however, to be Fulfilled before the compulsory power could be put in force. Similar Acts were passed in 1803 and in 1801, in each case provision being made for the assessment and payment of compensation. The Act of 1804 expressly removed any possible doubts which may have existed under the previous Acts as to the power of the Crown to acquire land for permanent purposes. All these Acts were passed in time of war or national emergency, and with the object of more effectually securing the defence of the realm. The point that is material for the present purpose is that, even under such circumstances, provision is in every case nude for payment of compensation, whether the land is taken permanently or temporarily. The Acts hitherto mentioned have all either expired by elluxion of time or have been repealed. They have, however, been replaced by the Defence Act. 1812, passed in time of peace. This Act, in sections 16 and 19, contained pro- visions corresponding in all material respects with those contained in the previous Acts I have referred to as to the compulsory taking of lands either permanently or temporarily, and required substantially the same preliminary steps before possession could actually be obtained, and in section 13 certain conditions were imposed the fulfilment of which was made essential to the compulsory taking of land. In this as in the previous Acts provision was made for the ascertainment by a jury of compensation, described in the case of temporary occupation as the compensation to be
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