CO129-306 - Governor Sir Blake - 1901 [8-9] — Page 633

拉

25

630

24

whatever, and the Governor shall have power, subject to the provisions of this Ordinance, to deal with the same and to dispose of the same for building or any other purpose in the same way and to as full an extent as in the case of other Crown lands; and all property, estate rights or supposed rights and easements or supposed casements of any persons or class of persons, whether Crown lease-holders or licensees or otherwise to the uses or possession or occupation of, in, over, or in any way in relation to such land foreshore, bed of the sea, embankment, reclamation or Praya roadway and wall or in relation to any wharf, landing place, pier or other place." The 7th section states that a large majority of the Crown lessees have declared their readi- ness to pay a share of the expense of the reclamation if the Governor will agree to grant them an equitable proportion of the land reclaimed in the front of their lots, and a form of agreement is appended to the Ordinance which gives effect to the equitable rights of the Crown lessees which the Secretary of State pointed out as far back as the year 1857, as appears by Government notification also, in which also the claims of the Crown to reclaimed land are asserted and notified. (See Government Gazette of 7th March 1857.) It is also enacted that a plan showing how much land alloted to each leaseholder shall be exhibited at the Land Office with the amount to be contributed by him, and within two months from the publication of the schedule of allotinents, lessees are required to state whether they are prepared to enter into the proposed agreement, and within another month the Governor may enter into agreement with those who desire to come into this arrangement. Sub-section 6 of section 7 enacts as follows: --"In case any lessee shall not signify his acceptance in manner and within the time provided in sub-sections 2 and 3 of this section, he shall have no claim to any compensation in respect of any depreciation of his lot by reason of the said works, but the Governor

may

if he thinks fit award to him such a sum of money or such a Crown lease of new land as he in his absolute discretion may think sufficient as and by way

of com- pensation for any injury that such lessee may have sustained by the said works." Section 8 is:-"Except as in this Ordinance provided no marine lot-holder or other person shall be entitled as against the Crown to any damages or compen- sation for the depreciation or injurious affecting of his property or business caused by, or resulting either directly or remotely, from any of the said works." From an examination of the affidavits read in this matter and the counterpart of the Crown lease of Marine lot 82, which was put in by the Acting Attorney-General, it appears that in 1866 the Governor for and in behalf of Her Majesty demised to Mr. Ryrie, Mr. Alexander Turing, and Mr. J. MeDonall a piece of ground abutting on the Praya and containing 28,800 square feet. Its northern boundary abuts on Government ground, and is about 50 feet from the Praya wall.

The south and

cast boundaries are also on Government ground, and the western boundary is on a public street. The amount paid was a nominal sum of $5, and the rental record was $1 per annum, and it was granted to these three gentlemen as trustees as.n site for a City Hall. The lessees have attached their names to a declaration that although the value of the site is considerable the demise has been made of Her Majesty's favour without pecuniary consideration, but upon the condition that these said premises shall not be usel nor any part of them for any other purpose than a City Hall in pain of forfeiture, and they have covenanted not to sublet. mortgage or sell or make any other use of the site than that for which it was granted. Whatever therefore may be said as to the characteristics of marine lots- as to the high price paid to the Government for them because of right of access and proximity to the sea, the higher rents reserved and their greater value in the market when they came to be sold-little can be suid in these respects about this so-called marine lot 82, which cost practically nothing, and cannot be let, sold or mortgaged. It has not been shown that any right of access to the sea has been enjoyed by the plaintiff more than any one of the public, and from the nature of

case.

the institution and the limitation to its uses, it cannot make the least difference whether it is 50 feet or 5,000 from the sea, provided the present road is not nar- rowed, and it is admitted that it is to be widened to 75 feet. If, however, any actionable wrong has been done, or is about to be done, damages would meet the An injunction would be out of the question in my opinion, although it has been urged that a perpetual injunction is the only remedy. If such were the case, no public works of any kind, however desirable, could be undertaken, for any person by his own motion might stop their prosecution, even when commenced for mouths as the Praya works have been, after much expense had been incurred and contracts entered into. But apart from the merits of this particular case, whate- ver may be the rights of this or any other marine lor-holder, the jurisdiction of this Court is ousted by the Praya Reclamation Ordinance. The Legislature has, by section 7 sub-section fi, enacted that Crown lessees who have not come in under sub-sections 2 and 3, shall have no claim to compensation in respect of any deprecia- tion of his lot by reason of the said works, and the Governor is vested with absolute discretion as to awarding compensation to those who have not come into the agreement. If the plaintiff did attempt to come in under the agreement and was not permitted, or if he was refused any compensation by the Governor, still this Court cannot help him, for sections 6 and 8 extinguish all rights and remedies except those provided by the Ordinance, namely, to have an equitable allotment or compensation for injury as the Governor may decide. It is urged that section 6 amounts to confiscation of private rights, and that the Ordinance is ultra rines-- that the Queen cannot derogate from her own grant, and cannot by a legislative act take away what has been granted in her executive capacity. I confess I should have liked to have seen a tribunal constituted to inquire whether there were any rights and to declare them. It is somewhat absurd, however, to suppose that where public improvements in a colony are needed that one or more lessees are entitled to block them. But of course their rights ought to be ascertained and compensated. To say, however, that because a man has had certain access to the harbour he is always to have it whatever public requirements may indicate, is not reasonable; but any injury of a legal nature giving him a right of action should be remedied by adequate damages. The Thames embankment cases illustrate how owners may be injured by public works and how they are compensated. But the Act of the legislature is supreme and binding on this Court, and although its action may even take away certain rights tyranuously we cannot interfere. The remarks of Chicf Justice Cockburn in Phillips r. Eyre, 4 L. R., 2 B., are in point. The Ordinance is made by the Governor with the consent of the Legislative Council and duly assented to. It is nade in virtus of the powers conferred by the charter of the Colony (see letters patent 20th January, 1888, rovoking the churter of 15th April, 1843, and granting a new charter), The charter, whilst conferring legislative power on the Colony, reserves to Her Majesty a concurrent, not paramount power of legislating by order in Council, and reserves the power of disallowing any Ordinance. The Praya Reclamation Ordinance has not only not been disallowed but confirmed, as appears by Gazeffc notification (see judgment of Cockburn C J. on the effects of confirmation of a colonial law by Her Majesty on the advice of her responsible Ministers answerable to Parliament). The Colonial Laws Validity Act, 28 and 29 Vic., c. 63, shows in what respects only colonial legislation may be void for repugnaney, whilst a late case (Powell e. The Appollo Candle Co., N. S. Appeal Cases) and the cases therein cited and referred to affirm previous decisions that Colonial Legislatures within their own jurisdiction have plenary powers of legis- lation, and are supreme within their own limits. To put the watter shortly, I am of opinion that if the plaintiff has a cause of action at all, he is not entitled to an injunction but only to damages. Second, that any cause of action which he night have is taken away by the Ordinance, which vests in the Governor the