CO129-458 - Public Offices & Others - 1919 — Page 359

And

DEFENCE OF THE REALM REGULATIONS. Thus, during the Great War, and while the Defence of the Real Regulations remained in force, the tower of acquiring land compulsorily under the Defence Acts was extended, and restrictions on Rs exercise removed, but no power was or could be crn- forred by the regulations to take the land of a subject without payment. Neither the public safety nor the defence of the realm required that the value of the subject's land, or of the temporary possession of it, should be confisented. Again, if the Executive Govern- ment was authorized vader the Defence Acts to take

occupy

y land on paying compensation, there was no necessity for the safety of the realm to take any other course, so long se any restrictions on acquiring immediate possession were removed.

Moreover, there was no Defence of the Realm Ro- galation purporting to abolish the right to com- pensation, and even if there had been such a regule. tion, it would not, in bis (his Lordship's opinion, have been authorized by the powers conferred by the Defence of the Realm Act, 1914, or the (No. 2) Act, 1914. On that point reference might be made to what was said by Ford Esher in Attorney General v Homer (4 Q.B.D. 245), that "it is a proper

THE SEARCH IN RECORD OFFICE. The result of the searches made was that it did not appear th the Crown had evor taken the subject's land without paying for it, and even in Stuart times no claim by the Crown to such a prerogative could be traced. The time covered by the search in the Records might be divided into three periods (1) before 1708; (2) between 1708 and 1798; (3) after 1795.

In the first period there were instances of land being required for fortificats, but the land taken or occupied was paid for, as in 1668, when it was decided to construct two new batteries at Chatham "You are to contract for and buy so much parcel of ground at each of the aforesaid places at the

cheapest

you and they can agree for." And in 1681 there was a minute of the Board of Ordinance as to the measures taken for new works at Plymouth and there was similar authority for the purchase of

Ind

for works at Hull, In 1708 was passed the first of a series of Acts (7 c. 26) enabling particular lands to be taken Corly.

Between 1709 and 1798 every case of taking or occupying land as ourred by them do the Crown on fi land was, in lact, under the fence and subsequent provisions, and that the

provisions of the

and

passed from Ume to time, so

during that period.

of construction, not to construe an Act of Parlia ont sa interfering with or injuring persona' rights without compensation unless one is obliged so to

matrule it."

The contention of the suppliants that the entry of

3812

that there was no room for the exercise of any alleged Bability to pay compeunstion more directly under the Prerogativ 1795, there was passed the statute

Act

stat tab,

could not be met by saying that the King

arged

That

V.

a con-

lle,

On 38 Gao. III., . 27, which, by section 10, provided not bound by legal fiction. The that his Majesty might authorize persons to survey track, express or implied, arose under the statute. ut rely on any lotion, and they appliants did any ground wanted for the public In the case of a contract for lotting, followed by and mark out service and to frost or agres for the possession or occupation, without the amount of the rent 160 thereof during such time as the exigence of Aber been fixed, at action for uue andI OCHEPETIO service should require, and in default of agreement The action was one for damages for breach of an agree- the compensation was to be agcortained by

jury, and with a restriction upon taking without the consent to pay for the use of the owner's property (per gent of the ow

Ellenborough in Hime have actually invaded the Fingdom.

Owners, unless the enemy should at the Florco 1508) 22 Chapter of Rochester

460: Marquía Camden! Act was extended by another statute passed in v. Batterbury [1859], 5C.1)..N.S. 908, 7 C.., N.8. 864: 1603 (43 Geo. III., c. 65), and as doubts had arisen 57: Hellior v. Silcox (1854) 10 I..J., Q.B. 295, ex- Levy v. Lewis (1861] 0 C.B., N.S. 166: 0 C.B.. N.S. whother the intter Act authorized the absolute purchase of lands for permanent purposes, in 1804ed in Churchward v. Ford [1857] 2 IL. and N.. another Act was passed 144 Geo. If., c. 951 enabling

446, 442, 480). land xo required to be purchased absolutely, and The obligation to pay was a contractual one. The the price to be ascertained by a jury in default of fact that the claim of the suppliante was for an un ascertained amount of compensation or even a claim for damages for breach of contract would be no objec In 1819 a question arose about some land between Doutre (9 A.C., 745) was a claim by petition of right tion to a proceeding by petition of right. Reg; V: Sandgate and Hythe which the Master-General o the Ordnance required for the use of the Crown to plant a reasonable sum for professional renumeration, for damages for breach of contract to pay the sup-

agreement.

THE ERECTION OF BATTERIES,

erect battaries and form a camp there the owner and was willing to grant a lease of the land during the ad it succeeded, though the point was taken by the -General of Canada in his defence that the war, but the "Master-General declined

Attorney that pro- and expressed himself as determined, for the sight was not entitled to proceed by petition of benent of the country, to purchase the land in the Again, in Windsor and Annapolis

v. the Queen and the Western Counti tion, " and it case Mr. Jellery persisting in the refusal to sell, to bring

Blu in Parliament to

Railway Company (11 AC 607) the law was stated to the same effect by Lord Watson at p. 613. empower the Board of Ordusuce to purchase the land

These statements were all collected in Thomas . The Queen in question and to have the value ascertained

by &

(L.R.

10 Q.B., 31), and also in Mr. Clode's book on Jury as is usual,”

of taking by virtue Petition of Right, at p. 135, giving particulars of any Prerogative was

anteported cases in the Court of Appeal, where the The Defence Act, 1842, reciting various previous C'ourt had statutes, said that it was expedient to consolidate,

accepted as law the judgment in Thomas v. the Queen. amand, and enlarge their powers and provision, and empowered the principal officers of Ordnance to purchase or take on lease lands desirable to be pur- chased for the defence of the realm, and to enter into any necessary contracta.

af

No Red by the Ordnance.

MR. JUSTICE PETERSON decided against the mop- plants, considering that the case was governed by In re Petition of Right (31 The Times L.B., 596 [1915] 3 K.B.. 649), a case where the Crown took His Lordship raferted in detail to sections 9, 18,

possession of an aerodrome near Brighton, which was 19, and 23 of the Act, and said that it would be

actually required for the conduct of hostilities in the Air. The case was taken on appeal to the House of seen that the statute applied as well in time of war

Lords, and there compromised. But whether it was as in time of peace, but in time of war and of actuai rightly decided or not, it had no application to such a Invasion by the enemy, one of the restrictions on

crae sa the present the taking possession of lands and sing the compulsory powers—the certificate of the

buildings for administrative Lord Lieutenant or other named persons- un

purposen. He (his Lordship) was of opinion that the judgment nscomary, but it remained even in war tima, unles

appealed from should be raversed, and that judgment enemy had actually invaded the country. The

favour Glaequent sisemment and payment.

the they were entitled to the relief sought by pars- suppliants, that 4 reinction The obligation to paygraph of the claim made by their

petition The vions of section of the Petitions of Right Act, 1850, the suppliants to have the costs in the Court below, and of the present appeal, and any costs paid under the judgment below should be repaid to the supplients.

**300 FM 2012

should be entered in ht

compensa

*Assessment and quisition of the land, but the judgment would be in accordance with the pro-

Followed on the

payment took place after posscasion of the property had been given to the principal ofcere, and did not hinder or limit them in putting the property to such uses as they might think dt.

After the outbreak of the Great War two statutes were passed in August, 1914-the Defence of the Realm Act, 1914, and the Defence of the Realm (No. 9) Act, 1914, His Majesty in Council was thereby authorized during the continuance of the war to irsue regulations for securing the public safety and the defence of the realm, and may such regulations also provide for the suspension by of any restrictions on the sequísition or uses of And or the exorcise of the power of making by-laws. or any other power under the Defence Acts. 1843 to 1975, or the Military Loads Acts, 1891 to 1903," Those statutes thus provided for regulating the existing powers. Orders in Council were made under the powers of those statutes, and those regu- lations provided for the suspension of certain re- strictions. The 14 days' delay provided fo by section 19 of tho Defence Act, 1842, disupy:

+

authority was given to take immediate pos of land and buildings, where necessary, public safety and defence of the realiu. compulsory acquisition, whether perma. temporary, was authorized without the n Invasion of the kingdom as a condition to the exercise of compulsory powers.

TORU JUSTICE WARMINGTON delivered judgment in agreement with that of the Master of the Roila.

DISSENTING JUDGMENT.

LORD JESTIC Dex. in a dissenting judgment. said that important questions of principle underlay the dispute as to the basis on which the exppliants ought to receive compensation out of public funds. The suppliants alleged in their petition a voluntary delivery of the premises by them to the representa tives of the Crown upon an agreement for payment by the Crown of a fair rent or other compensation. Apart from the alleged agreement they claimed that they were entitled to be paid rent or compensation by virtue of the Defence Act, 1842. The alirged agreement was traversed by the Attorney-General alleged necessity reason n sxistence of a state of war for the occupation of the premises for securing the public safety and the defence of the realm, and said that the

occupation was properly and inwfully taken by virtue of his Majesty's Royal Prerogative, as well as by virtue of the power conferred by the Defence of the Realm (Consolidation Act, 1914, and of the regulations made thereunder. He said that no rent or com pensation was by law payable. Mr. Justice Peterson gave judgment for the Crown on all the questions Faised by the pleadings.

pay

the

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