3870.
PUBLIC RECORD OFFICE
Reference :-
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO
PER CO. 885. 11 RECORD OFFICE LONDON
ייייייייי
MY LORD,
No. 702.
(WESTERN AUSTRALIA.)
ATTORNEY GENERAL to COLONIAL OFFICE.
Temple, April 19, 1871.
I AM honoured with your Lordship's commands signified in Mr. Holland's letter of the 3rd instant, stating :--
1st. That he was directed by your Lordship to request that I, in conjunction with the Solicitor General, would favour your Lordship with my opinion upon the question raised by the Attorney General of Western Australia in his letter dated the 1st February 1871, of which a copy was annexed, respecting the power of the Crown to resume lands without compensation, with a view to regranting them to a private company for the construction of a railway.
2nd. That Mr. Holland was also to inclose for my information forms of the deed of grant now in force in that Colony in respect both of town and country lots.
In obedience to your Lordship's commands I have considered this matter, and have the honour to
Report
That I agree with the Solicitor General that the making of a railway comes within the meaning of the words "any roads, canals, bridges, towing paths, or other works of public utility and convenience," but I am unable to concur in his opinion (as I understand it) that the Crown can only resume possession of the class of lands to which' the reservation in the grant applies for the purpose of itself making a railway, i.e., by the hands of its workmen, or by agreement with contractors. I am of opinion that the power of the Crown to be exercised for the public benefit is not thus restricted, and that if it come to the conclusion that a railway (or canal) can be better or more con- veniently made by a company than by itself, it has the power of leasing, or of granting in fee to a company the land required for that purpose, proper precautions being of course taken by the terms of the grant, or by local legislation, that the public are to have the use of the railway upon paying moderate tolls, and that the company is to be subject to the usual conditions imposed upon railway companies in the public interest. To the landowner, whose land is taken, it is obviously immaterial whether the works constructed upon it be constructed by government workmen, by contractors, or by a company, nor do I think that he is entitled to prescribe to the Crown by whom or how the works are to be executed; the public, in whose behalf the reservation was introduced, are only interested that the works should be done, and that in the best and speediest manner.
Bearing in mind that the ordinary rule of construing grants most strongly against the grantor is reversed in the case of grants from the Crown, on the principle that the Crown is but another expression for the public (see R. v. Feather 35. L. T., Q. B. 204.), I think that construction of the reservation in the grant too narrow which would restrict the Crown from causing such works as railways and canale to be constructed in the manner most usual, and generally the most efficacious, indeed, I cannot help fearing that such a construction might possibly defeat the objects of the reservation.
I do not think that the words of the habendum "to hold to us, our heirs and suc- "cessors as of our or their former estate," restrict the rights of the Crown-they are the usual form of a proviso for re-entry, and would be necessary to enable the Crown to make a re-grant.
The Right Hon. the Earl of Kimberley,
&c.
&c.
&c.
I have, &c. (Signed) R. P. COLLIER.
0 16978-661. 25.-5/86.