CO129-240 - Public Offices & Others - 1888 — Page 299

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various owners in the year 1861, by the Secretary of State, under the provisions of the Defence Act, 1860, 23 & 24 Vict. c. 112., entitled "An Act to make better provision "for acquiring lands for the Defence of the Realm."

No notice was given under sections 7 to 9 of that Act requiring Seacroft House and grounds to be kept free from buildings and other obstructions, and the three year limit imposed by section 35 within which the powers of removal conferred by section 34 must be exercised, has long since expired.

At the time of the purchase of the Sandown Barrack Battery site in 1861, the site of Seacroft House was occupied by a thatched cottage erected about 1845.

The battery was built sometime between 1861 and 1864, the cost being met out of the loan for the national defences.

Seacroft House was built in the year 1872. The precise distance from the House to the nearest gun in the battery is 141 feet.

The battery is a redoubt with ditch and closed gorge. Its present object is to assist in the defence of Sandown Bay from a hostile landing. It mounts five guns which fire seaward. They are at present 64-pounders (muzzle loading rifled), but it i proposed to mount larger guns.

It has been usual to fire blank charges, but it is proposed to fire shot, when the concussion will be somewhat greater.

The battery is at present used by the Isle of Wight Artillery Militia.

The quantity of ainmunition to be used for practice firing is prescribed by regula- tion made by the Secretary of State for War, under section 4 of the Militia Act, 1882.

No special means or appliances are adopted for diminishing the force of the

concussion.

The following is a copy of the Regulation as to notifying the Station and Battery practice in the neighbourhood:-

R.O. 30.-Practice (Station and Battery). Notice to be given to the neighbourhood regarding.

When practice is about to be carried on from works contiguous to buildings or private property which are likely to be injured by the concussion, due notice of such practice should be given in the neighbourhood, in order that precautionary measures may be taken by owners or occupiers to avoid damage.

Notice must be given as circumstances may best determine, either by advertisements in the local newspapers (provided such publications are authorised by regulation), or by the Town Crier, but as little expense as possible should be incurred in so doing.

As far as practicable, firing from such places should not take place when the wind

is blowing in the direction of the houses or buildings likely to be affected.

No express authority is given by Parliament for expenditure of Public Funds in compensating for damage done to private property by the gun fire, but there is a vote in the Army Estimates (2,000l. this year), under the head Compensation for Losses," which it is presumed would be legally applicable for compensating such damage, supposing the Law Officers to consider that claims in respect of it are legal.

It is difficult, however, to see what remedy at law Mr. Wyley's trustees would have if Seacroft House were damaged by the concussion from the gun fire.

See the reference to the rule "Princeps et Respublica ex justâ causâ possunt rem mean auferre," in the Saltpetre case, and the remarks of Justice Buller in Governor, &c., v. Meredith, 4 Term, Rep. 797.

The officers concerned carry on the gun practice in obedience to general orders, and if they carry out these orders with care and skill, and without negligence, it is presumed that they would not be liable to an action for the damage (Sutton v. Clarke, 6 Taunton 29). At any rate, they would not if the Secretary of State for War subsequently ratified their Acts, for that would make acts of State for which the Crown alone would be responsible (Buron v. Denman, 2 Exch. 167). And no petition of right would lie (Viscount Canterbury v. the Attorney-General, 1 Phillips 301, and Tobin v. the Queen, 11 C. B.-N.S. 310).

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In the case of Hawley v. Steele (L. R., 6 Ch. Div., p. 521), where the plaintiff filed a bill against the General Officer in command at Aldershot to restrain him from using a rifle acquired under this Act, and for compensation, the Master of the Rolls refused to give range relief. He said, "I take it to be clear that no man is entitled to use his land by allowing others to come upon it and make a noise which is really intolerable to his "neighbours, of which, to put it in legal language, materially interferes with their ordinary comfort and use of their dwelling-house; and, therefore, if the "defendant had been the owner of this land, and if the persons who caused that noise

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"and vibration had not been troops of the Government, I should have had no "hesitation in granting the injunction

The real question is whether the Legislature has authorised the act to be done. Now, that being so, the "two acts to which my attention has been drawn, look very much like authority

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" for that purpose. I am not going primarily to decide the question; it is a question The case "that will be very much considered at the trial, when I shall know a good deal more never went "about the Acts of Parliament, and also something more (although I do not see that for trial, "it is disputed) as to the reasonableness of the acts done, having regard to the "purpose for which this land has been acquired

Now, putting all the "sections together, they seem to me to amount to this-authority to the Officers of Departments to tako, that is, to purchase or acquire, and to use the land so purchased or acquired, including lands then vested in them for the purposes of the defence of the realm.' That is a very large word, or for military defences, or for the "services of the Department,' substantially for all reasonable military purposes. That is "the effect of the sections, as it appears to me, although I am not now intending finally "to decide upon them. Therefore, we have this as the general effect of the Act of "Parliament. Lands authorised to be bought vested in the Trustee for the Crown "to be used for military purposes of the realm. Now, what does that mean? That "must mean to be used for the reasonable purposes, having regard to the nature of "the requirements of the military department of the Government, and if that is so. "it appears to me that except in the case of an outrageous departure from all "reasonable use, it is not for a Court of Justice to say what is the reasonable use "of land for military requirements, but it is for the departments to say that such "land is wanted as a camp for the exercise and instruction, such other land is wanted " for a fortress, and such other land is wanted for an arsenal. In other words, I think, the discretion is vested in the Executive Government having authority over military matters. That is, to whichever of these various military purposes for "which land may fairly be required, the particular land in question is to be appropriated. It is not for the Judge to say that they have made a bad selection, "and they ought to have taken Blackacre for a camp instead of a fort, that they ought to have taken Whiteacre for an arsenal instead of a camp, or that they ought to have taken Greenacre for a camp instead of a fortress. It appears to me that that "would be an invasion of the authority of the military department by the Judge if be "interfered with such matters, and therefore, if I find that the military authorities "of the country had selected this land as being a proper place for the camp of instruction, I should say that it is for those authorities finally to determine that question, and that all I had to look to would be whether they were using the land in any way except in a reasonable way as a camp of instruction; and here again "the Judge must be very careful. As I said before, if it was an outrageous use, outrageous in the sense of it not being past reason, I have no doubt the Court "would interfere. I can imagine such a use of land under the name of a camp of "instruction, that it would be so entirely opposite to a camp of instruction that the "Court would say at once it was a mere subterfuge, and not a bona fide use of the land, but the moment that the Court is satisfied that it is a bond fide use of the land for the purpose of a camp of instruction, it appears to me that the Court's function stops; that it has no right to say that the tents shall be pitched on another piece of land, or that targets are to occupy a different piece of land. That is for the military "authorities to decide, and that would be their province, and not the province of the Court. Then it follows, from all I have said, without any further statutory enactment, that the power so conferred on the military authorities was a legal right "to the use of the land for that purpose, although such a use would, without the authority of Parliament, have been illegal. If that is so, it is impossible to "maintain an action for nuisance."

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In concurring in this decision, Baron Pollock said "it would be extremely difficult "to contemplate the use of land for military purposes which did not carry with it the

right to fire guns." Hill v. Metropolitan Asylum, 4, 2 B. D. 445.

It would appear from the above that the Courts of Law will not interfere by injunction to restrain the use by the Secretary of State of land or buildings vested in him as Trustee for the Crown for the purposes of the defence of the realm, unless such user be distinctly and outrageously unreasonable, having regard for the requirements of the Military Department, and the objects for which the land or buildings wore acquired. Would then user of a battery for practice purposes with heavy ordnance, and in such a manner as would involve damage to private property in the proximity of it, be an unreasonable user?

A 52950.-38.

A 2