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December 8, 1900.j commencement of the works the Lot, with the buildings thereon, was of the value of about $200,000 at the least. After the completion of the works in the immediate front of their Lot, the plaintiffs were unable to obtain more than $110,000 for the Lot and the buildings thereon, and this depreciation was entirely owing to the conversion of the Lot from a Marine into an Inland Lot.
CHINA OVERLAND TRADE REPORT.
(c.) The reclaiming and filling up of the fore- shore and bed of the harbour lying between the present Praya wall and the intended embankment.
By section 5 power is given to the Governor to remove all obstructions to the works, as in his judgment may be necessary.
Section 6 deals with the reclaimed land and the land occupied by the present Praya road- way and wall along the line of the reclamation. These lands are declared to be the property of the Crown and to be subject to the disposition of the Governor in the same way as other Crown lands, and all private property, rights, and ease- ments in or in relation to them or in relation to any wharf, etc., thereon are declared to be absolutely extinguished and determined.
The plaintiffs were not assenting parties under the provisions of the Ordinance to the execution of the reclamation works, and accord ingly, acting on their opinion as to the con- struction of the Ordinance which is stated in paragraph 10 of the Petition, viz., that it is the duty of the Governor to inquire into all cases of loss or damage sustained through the operation of the Ordinance by non-assenting The provisions of section 7 are long and some- Crown lessees affected by the works and to award what complicated, but they are very material for them such sum of money or such Crown lease the purposes of the present case. There is in of new land as he in his absolute discretion may the first place a preamble in which it is recited think sufficient by way of compensaton for such that the Crown lessees whose lands are along loss and damage, they called upon and required the line of the proposed reclamation, or the the then Acting Governor, Major-General majority of them, have declared their readiness W. Black, C.B., to inquire into the loss to contribute to the cost of the works provided and damage sustained by them through the the Governor will grant to them Crown leases operation of the Ordinance. On the 22nd of such equitable proportion of the reclaimed November, 1898, Major-General Black pro-land as may be available, having regard to fessed to award to the plaintiffs the sum public requirements for roads, etc, and to the ef $15,000 by way of compensation for the loss claims of the lessees as between themselves. It and damage sustained by them by reason of the is further recited that the cost of the works is execution of the works. But Major-General to include a sum not exceeding $5,000 for pre- Black did not make any proper inquiry into the liminary expenses, a sum not exceeding $180,000 plaintiffs' claim or into their loss and damage; by way of compensation to owners and occupiers he did not hear the plaintiffs, by themselves or of wharves and piers along the line of the pro- by their counsel, in support of their claim; he posed reclamation, and a sum not exceeding gave them no opportunity of calling evidence $105,000 for the purchase of certain specified to prove their loss and damage; he illegally and land in course of reclamation. Provision is improperly received evidence put in by the Go- than made as follows :- vernment in opposition to their claim, without giving them any opportunity of knowing what that evidence was or of contesting it; he took evidence in their absence and behind their backs; and finally his so-called award was not in ac- cordance with such evidence as was put before him, he wholly disregarded it, and awarded to the plaintiffs a much less sum than they ap. peared to be entitled to on the evidence.
These are the allegations of fact on which the plaintiffs found their claim for relief. The reliof asked for is that the award of the Acting Governor, Major-General Black, may be set aside and may be declared by the Court to be null and avoid.
I proceed in the next place to examine the provisions of the Ordinance under which the works which the plaintiffs allege have caused loss and damage to their pro- perty were executed. The Ordinance is num- bered 16 of 1889, and it was enacted on the 10th May, 1889. Its title is "An Ordinance to carry out a scheme for the Reclamation of the foreshore opposite the City of Victoria." The preamble is in the following terms:-
Whereas the foreshore of the harbour of Victoria is in process of silting up to the detri- ment of the health and commerce of the Colony, and it is expedient to put a stop to such process and to provide a deep water frontage; and whereas the area of level land for building and for roads and quays and open spaces along the sea front of the City of Victoria is insufficient to meet the growing wants of the Colony, and it is expedient to enlarge the same."
By section 2 it is declared that "the works authorised by the Ordinance and all works for the effectual and convenient carrying out of the same are works for the improvement of the Colony and for a public purpose' within the meaning of that term as contained in the Crown leases of lands in the Colony."
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Section 3 provides that it shall be lawful for the Governor to carry out the authorised works according to the approved plans. It also pro- vides for deviations from the plans, for the in- mediate commencement and continuance of the works, and for the necessary staff and plant for carrying them out.
Section 4 describes the works authorised by the Ordinance. They are as follows:-
(a.) The making of an embankment along the harbour front of Victoria and upon the bed or foreshore of the Harbour, with all necessary and convenient subsidiary works;
(b.) The making upon the embankment of a public roadway and the widening of the present Praya roadway; and
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tenance of the sea-wall and roads of the new embankment.
The form of agreement is contained in the Schedule to the Ordinance.
The historical position of the plaintiffs' claim has now, I think, been made clear. They were Crown lessees and, as such, marine lot-holders affected by the scheme who did not enter into the agreement mentioned in the Ordinance, and they allege that their property having become depreciated in value by the execution of the works, it was the duty of the Governor to hold an inquiry into their claim for compensation. They further allege that the Acting Governor did hold such an inquiry, but that he held it in such a one-sided and improper manner that the Court will set aside the award founded upon it. It remains to consider whether, having re- gard to the provisions of the Ordinance, the Court has jurisdiction to inquire into the con- duct and proceedings of the Acting Governor, and, if necessary, to set aside his award.
The general scope and purpose of the Or dinance are sufficiently plain. The Legislature of the day recognized that it was a matter of great importance for the health and commerce of the Colony that a large reclamation of the foreshore opposite the City of Victoria should be made and a deep water frontage provided, and, a majority of the Crown lessees affected by the proposed works having agreed to contribute to the cost of the works on certain terms, it proceeded to make provision for the execution of those works. The duty of carrying out those works was imposed on the Governor, and he was invested with full and absolute powers for that purpose. But it was obvious that, inasmuch as large and valuable interests were affected by (i.) For the making and depositing at the the scheme, the progress of the works might be Land Registry Office of a plan showing in seriously delayed if the proprietors of those in- detail the portion of the proposed reclama-terests were at liberty to seek redress in the tion assigned to lessees in respect of their Courts of Justice for any injury to their in- terests which might be caused or supposed to be lots of land, and the plan is to have annexed to it a Schedule containing a list of the les caused by the execution of the works. Accord. sees and the approximate contribution re-ingly the Legislature obviated this danger by quired from each of them in respect of the deliberately excluding the ordinary jurisdiction of the Courts in respect of claims of that kind. cost of his portion of the reclamation; (ii.) For the notification of the deposit of the This was the view taken of the effect of the Or- plan and the publication of the Schedule, dinance in the case of Ryrie v. The Attorney. and for the signification in writing within General which was decided by the Full Court in 1890. In that case the plaintiff, as trustee two months thereafter by lessees who are desirous of entering into the agreement for the City Hall, sought an injunction to restrain the Government from proceeding with hereinafter mentioned of their acceptance of
the reclamation works in front of the marine the portions of land assigned to them on the plan and of their intention to enter into lot on which the City Hall stands, on the ground that the effect of the reclamation would be to an agreement; (iii) For authorising the Governor, if he thinks interfere with his right of access and proximity fit, within one month from the expiration to the sea, convert his holding into an inland of the above-mentioned two months, to enter lot, and thus diminish the value of his property. into an agreement, in the form contained in The Court refused the injunction asked for on the Schedule to the Ordinance, with the the ground that, apart from the Ordinance, the
· lessons individually who have signified their plaintiff was not entitled to an injunction but only to damages. On the question of the effect acceptance and intention as above men- tioned, and for authorising the Governor of the Ordinance Russell, C.J., made the follow- to dispose of the reclaimed land in according observations :—“ But apart from the merits of this particular case, whatever may be the ance with the agreements; (iv.) For rectifying errors in the quantity rights of this or any other marine lot-holder, the jurisdiction of this Court is ousted by the or area of land agreed to be granted; and
The Legis (v.) For limiting (subject to sub-section vii.) Praya Reclamation Ordinance.
the liability of each lessee to the actual lature has, by sec. 7, sub-sec. 6, enacted that cost of the reclamation of the land agreed Crown lessees who have not come in under sub- secs. 2 and 3 shall have no claim to compensation to be grantel to him and of the authorised
in respect of any depreciation of his (sic) lot by works in connexion therewith. The next sub-section is very material. It is reason of the said works, and the Governor is vested with absolute discretion as to awarding in the following terms :-
conpensation to those who have not come into the agreement. If the plaintiff did attempt to come in under the agreement and was not permitted, the Governor, still this Court cannot help or if he was refused any compensation by him, for sections 6 and 8 extinguish all rights and remedies except those provided by the Ordinance, namely, to have an equitable allot ment or [quæ of] compensation for injury as the Governor may decide." And at the close of his judgment he says:-"To put the matter shortly, I am of opinion that if the plaintif 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 might have is taken away by the Ordinance, which vests in the Governor the power of mying what, if any, compensation should be allowed.”
(vi.) In case any lessee shall not signify his acceptance in the manner and within the time provided in sub-sections (ii.) and (iii.) 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 may in his absolute dis- cretion think sufficient as and by way of compensation for any injury that such lessee may have sustained by the said works.” Sub-section (vii.) provides for the payment by the lessees of a proportionate part of any ex- traordinary or unforeseen expenses in connexion with the works, and sub-section (viii.) directs that so much of the cost of the works as is not contributed by the lessoos is to be defrayed out of the public revenues of the Colony.
Section 8 will be dealt with presently. Sections 9 and 10 have reference respectively to foreshore and other rights and to the main.
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Having regard to this decision, it must be and is admitted on the part of the plaintiffs that the general jurisdiction of the Court in respect of "wrongs ösused by the construction
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