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Privy Council.

BROWN, Appellant.

and stating that he and his predecessors in title had 3, 4, 5, 7, 8 DEC. 1863.

Gugy, Respondent.

for a hundred years used the natural current of the 15 FEB, 1864.

river for working the machinery of the mill, the

declaration contained the following allegations, Prescnt-LORD KINGSDOWN, SIR EDWARD RYAN,

that the Beauport was a navigable river, and had, and SIR JOHX T. COLERIDGE.

until the grievance complained of, been used by the Law of Canada-Riparian Rights-Actual and plaintiff' and his predecessors in the floating of bateaux

Apprehenıled Damage - Dénonciation de and other vessels employed by them in conveying Nouvel Euvre-Public and Private Action- grain, flour, and other effects to and from the mill ;

that the defendant intending to injure the plain. Public Nuisance.

tiff in his business of a miller did, between the 16th A, the owner of the domain on one side of a river in day of October preceding, and the date of the issue of Lower Canada, erected and completed a wharf on his the river than the plaintiff's mill, and in and upon

1

the summons (the 29th of October), erect lower down property, and, ces was alleged, upon a part of the bed of the river Beauport

, a certain wharf which nearly trathe stream which was used for navigation by the public

. versed the whole of the river, and which materially B, the owner of a water-mill on the opposite side of the altered its natural course, and narrowed its channel so river, brought an action for the damage occasional by much that it was now impossible for the plaintiff'to float the new wharf to his mill. At the trial he failed to

bateaux or other vessels to the mill as he was used to prove actual damage thereby caused, either before or

do; and that the defendant had further, by means of since the commencement of the action :

the wharf, prevented the waters of the river from Held, that under the law of Canada a person bring.

running down the natural channel, and compressed ing a private action for injury occasioned to him by an

the channel to so small a breadth that whenever the encroachment upon public property, must establish a case of actual and not of apprehended damage to became high, the waters receded or were thrown

waters of the river, from the freshets or otherwise, himself.

back upon the plaintiff's mill, by reason whereof, and An officer suing on behalf of the public has a right to call for the demolition of any work erected without by means of the still water thereby occasioned, the mill

could not be worked, and that in consequence of the licence on the public domain, and is not required to illegal and tortious acts of the defendant in erecting show any actual damage occasioned thercby.

the wharf, the plaintiff had

and still was, preThe dénonciation de nouvel ouvre under the old French laro, applied only to works not yet completed, vented from using the waters of the river and working and it ceased with their completion. The remedy which his mill

, as he otherwise would have done, to his damage

of the sum of 3001. currency. il gave was the suspension, not the demolition, of the

The conclusions of the summons were, work complained against.

1. That the defendant might be decreed within eight This was an appeal from a judgment of the Court of days, or such other time as the Court might appoint, Queen’s Bench in Canada, which confirmed a judgment to demolish and remove the wharf, and that in default of the Superior Court dismissing an action brought by of his doing so the plaintiff might be authorised to do the appellant against the respondent.

so at the defendant's expense. The appellant is the owner and occupier of a water- 2. That the defendant might be ordered to pay mill on one side of the river Beauport. The respondent 3001. currency for the damage aforesaid, and costs. is the owner of the domain of Beauport on the other The whole without prejudice to any further damages side of the river.

that might be sustained by the plaintiff by reason of In the month of October, 1852, the respondent the erection of the wharf. erected a wharf on land which he insisted was part of The deferdant in his answer denied generally the his estate.

allegations of the plaintiff, and pleaded various special The appellant alleged that this wharf was injurious matters both of law and of fact, to which it is not to him ; and on the 29th of October, 1852, he com. necessary, for the purposes of this report, to advert. menced an action against the respondent in the The cause being at issue, much evidence was pros Superior Court of Lower Canada, and on the same day duced on both sides, and in April, 1857, the Court filed his declaration.

referred it to three gentlemen as experts to make After setting forth the appellant's title to the mill, I inquiries and report to the Court their opinion on

VOL. III.

A A

erroneous ?

several of the matters in dispute, with directions upon Could they say that either of these findings was one particular point to receive further evidence.

These gentlemen differed amongst themselves, two ! As to the first, its propriety was hardly disputed at concurring in a report, and the other making a sepa- the bar, and it did not admit of dispute. rate report; and, after much expense and delay, finally As to the second, although there was a great deal of the cause came on for hearing before the Superior conflicting testimony, and much room for doubt, two Court-Mr. J. Stewart being the Judye present, when Courts had come to a decision in favour of the defendthe following order was pronounced :

ant. The question was one upon which the Judges in “February 1, 1860.

the colony were more competent to form an opinion “The Court having examined the proceedings of than the Judicial Committee, and it was not their record, the evidence adduced, and heard the parties by habit to advise an alteration of a judgment unless they counsel on the merits ; considering that the plaintiff could see clearly that, upon some point, there had hath failed to establish in evidence that the defendant been a miscarriage in the inferior Courts. This thes hath erected, or caused to be erected, in and upon the were unable, in the present case, to discover. The river Beauport, a wharf which crosses the said river in observations of Mr. Justice Meredith showed that he any measure, or which obstructs or diverts the natural had examined the case with the utmost care and im. course of the same ; considering that the river Beau. partiality; and the clearness and temper with which port is alleged and proved to be a navigable river, and he expressed the conclusion at which he had arrived that any obstruction to the same would be a public added great weight to his opinion. nuisance ; and considering that no action by an indi.

It was said, however,-and this was the point relied vidual lies for a public nuisance, unless the party

on by the dissenting Judges,-that it was unnecessity bringing such action has received special and particular for the plaintiff in the action to prove actual damage; damage therefrom ; considering that the said plaintiff that the action might be maintained as one of déusta

and that in such an action it hath failed to show in evidence that he has received ciation de nouvel auvre, any special or particular damage from the erection of was sufficient to prove that the work complained of the present wharf,—doth dismiss the present action would, or probably might, be attended with injury to with costs."

the plaintiff.

But the action of dénonciation de nourci cure YS From this decision the plaintiff appealed to the of a different description from the present, was founde! Court of Queen's Bench, and that Court, by a majority upon a different state of circumstances, and sought a of three Judges to two, affirmed the judgment, and different relief. In such an action the plaintiff claims from the decision of these two Courts the present protection against a work commenced, and still in appeal was brought.

progress, by which, if completed, he alleges that be The Attorncy-General and H. M. Bompas, for the will be injured. appellant, argued at great length on the questions of If such an action were brought, it appeared that the fact, and on several points of law not noticed in the Judge might either interdict the further progress of the judgment.

work or require security to be given by the defendant The respondent appeared in person.

to the plaintiff against any injury which be might

sustain ; but when the work was completed this form of 15 FEB, 1864.

action was no longer competent. The opinion of the Committee was delivered by This appeared to have been the law of Rome. In LORD KINGSDOWN, who said

the Dig., lib. xliii., tit. 15, “De Ripa munienia," The only question which it was their duty to decide after a statement that any protection to the banks of was whether the judgment dismissing the action ought a public river must be made in such a manner as not to be reversed or varied ; in other words, whether the to hinder navigation, so that any person who appre appellant at the hearing below established a case which hended injury from the work might apply to the entitled him, sccundum allegata et probata, to any Prætor for an interdict to restrain it and might relief.

obtain security, this passage occurred :-"$5. Etenis The action was founded on the allegation of damage curandum fuit ut eis ante opus factum careretur. caused to the plaintiff by a tortious act of the defend. Nam post opus factum persequendi hoc interdicto ant. It complained both of injury already suffered nulla facultas superest etiam si quid damni postas before the commencement of the action, and of con- datum fuerit, sed Lege Aquilia experiendum est." tinuing injury, and sought appropriate relief in respect The law and form of procedure of Rome seemed in of each complaint-compensation, in money, for the this respect to have been adopted into the las si first, and demolition of the wharf for the second.

The Courts below had found that the plaintiff had In Daviel, Cours d'Eau," tit. “Du Domaine failed to prove any damage whatever sustained by him Public," par. 471, it was distinctly laid down that he from the works of the defendant, either before the the old French law, that is, by the law now prevailing commencement of the action or subsequently.

in Lower Canada, the dénonciation de nour:i am

France.

could only be maintained if instituted before the work abate the nuisance, he is not obliged, nor is it in all was completed, though by an alteration introduced by cases his duty, to interfere. A case of this kind was put the French Code, the law in this respect was now by Proudhon, in a passage cited by Mr. J. Aylwin. altered and the action might be maintained in respect | He says, “It may be that in the case of a dyke of a work either "fait ou commencé."

erected in the bed of a navigable river the dyke The author says, –

may do no injury to the actual state of the navi“Je dis nouvel auvre fait ou commencé. Sous gation, as being built in an arm of the river where l'ancienne jurisprudence la dénonciation n'était plus navigation is not practised, and which, nevertheless, recevable du moment que le nouvel auvre était ter does not on that account cease to be a part of the miné; c'est ce que cette action avoit de spécial, comme public domain.” aussi la faculté pour l'auteur du nouvel ouvre de This supposed case had much resemblance to the continuer son travail en donnant caution et la restric- present. The particular portion of the river where tion du droit du Juge à suspendre les travaux sans the channel was said to have been contracted did not pouvoir les faire détruire. Mais sous notre nouveau appear to have been actually in use by the public for droit la dénonciation de nouvel auvre est assimilée the purposes of navigation. aux autres actions possessoires par cela que les lois If the public officer refused to interfere, an indivi. n'ont pas réproduit les conditions particulières qui dual who suffered injury was not prejudiced ; he had la caractérisaient autrefois."

still his action privée, by which he might recover In this case there was no doubt that the work was damages for injury already sustained, and the abatecompleted before the action was commenced, and the ment of the cause of such injury for the future. The relief sought was different from that which, according public and private action were said to be not only indeto Dariel, could be granted in an action of dénonciation pendent of each other, but essentially distinct in their de nouvel cuvre. But even if the present suit could object. The fact that the place where the work was be regarded as an action of that description, it would erected was public property was of course very important be equally met by the objection that the plaintiff had in both cases, in regard to the right of the defendant failed to prove that the work would be injurious to to do what he had done ; but it did not according to him.

the law, as collected from the authorities, supersede It was then said that, however the law might be, the necessity of the plaintiff in a private action proving if the bank on the face of which this wharf was built that he had sustained injury by the work special to were the private property of the defendant, a distinc. himself, and beyond that which was common to the tion was to be made, because the bank was, in truth, public at large, and this the plaintiff in the present part of the bed of the river, and a portion of the public case had failed to do. domain, and that a work erected upon it was a public

Minute.-Judgment affirmed, with costs. nuisance of which any person interested had a right to complain. That the bank in question was a part of the bed of

Privy Council. , ROBERTSON, Appellant. the river, and a portion of the public domain, was not

5, 6, 17 FEB. 1864. DUMARESQ, Respondent. in terms alleged by the pleadings. The averment was Present-LORD CHELMSFORD, LORD JUSTICE KNIGHT said at the bar to be contained inferentially in the

BRUCE, LORD JUSTICE TUPNER. statement that the wharf erected by the defendant nearly traversed the whole of the river, which it would Act of New South Wales in Substitution for not do unless the bank formed part of the river. If Petition of Right (20 Vict. No. 15)-Promise the fact were essential to our decision in this case, we

of Allotment of Land by Colonial Governor should feel great difficulty in holding that the plaintiff

Consideration - Measure of Damages. had either sufficiently put it in issue by his declaration or established it by evidence.

An officer in military service in a colony sold his But it was not necessary to decide this question. commission and settled there on the promise of a grant The law of Lower Canada, as collected from the autho- of "an allotment of landat W. This promise was rities, seemed to stand thus,

made verbally by the Governor, and afterwards recog. An officer suing on behalf of the public has a right nised by him and his successors in certain official letters at his own instance, or on the application of any and minutes, but was never performed. Subsequently person interested, to call for the demolition of any the settler consented to an allotment of land at H being work erected without license on the public domain, substituted for that at W. The second allotment was and he is no more required to prove that the erection otherwise disposed of, and was never conveyed to him, has occasioned actual damage to the public than a and he was subsequently offered a third allotment at I, private person who complains of a wrongful invasion which he refused. He then brought an action against of his property is obliged to prove that it has occa- the Government under the Local Act to afford relief in sioned actual damage to him. But although such substitution of the process by petition of right :officer may, if he think proper, take proceedings to Held, that proceedings under this Act materially difered from ordinary actions, both in the nature of the for the trial of the matter thereof, but in case of such claim and the evidence by which it might be supported : petition being returned without such approval, the

Held, also, that the letters and minute of the Governor same, together with the indorsation thereon, and the afjorded good evidence of the fact of such a promise reasons assigned for withholding such approval, shall being given, and the agreement to settle in the colony be forthwith published in the New South Wales would constitute a good consideration, if it were neces. Government "Gazette,' in which case the remedy sary to prove this.

hereby provided shall not be had. Damages for breach of such a promise were rightly

"2. At the time of such reference for trial as aforeassessed by reference to the highest value of that of said, the Governor, with such advice as aforesaid, shall which the claimant had been deprived during the breach name some person or persons to be a nominal deof agreement.

fendant in the matter of such petition, the petitioner

being the plaintiff therein, provided that nothing in This was an appeal against the decision of the this Act shall be construed to extend so as to subject Supreme Court of New South Wales refusing a new any such nominal defendant to any individual respontrial in a proceeding in the nature of an action brought sibility in person, goods, chattels, estate, or otherwise, by the respondent, in substitution for the remedy by by reason of his being such nominal defendant. petition of right under the local statute, 20 Vict. No.

“3. It shall be lawful for the Judges of the Supreme 15, against the Government of the colony, the appel. Court, or any two of them, to make all such general lant being the nominal defendant representing the rules and orders for the regulation of the pleadings Government.

practice, or proceedings on any such petition as to The statute in question is as follows :

such Court shall seem necessary for the purpose afors“Whereas disputes and differences have arisen and said. And all such rules, orders, or regulations shall may hereafter arise between the subjects of Her be laid before both Houses of Parliament of the Majesty the Queen and Her Majesty's Local Govern- Colony, if Parliament be then sitting, immediately ment in the Colony of New South Wales, the subject. upon the making of the same ; or if Parliament be not matter of which disputes and differences has arisen or sitting, then within five days after the next meeting may arise within the said colony : And whereas the thereof; and every rule and order so made shall be orulinary remedy by petition of right is of limited of the like force and effect as if the provisions conoperation, and is insufficient to meet all such cases, tained therein had been expressly enacted by Parlisand is attended with great expense, inconvenience, ment. Provided always, that it shall be lawful for and delay : Be it therefore enacted,” &c. &c., “as the Governor, with the advice of the Executive Counal, follows :

in Her Majesty's name, by any proclamation inserted “1. In all such cases of dispute or difference touch- in the Government ‘Gazette,' at any time within three ing any claim between any subject of Her Majesty and months after the making of any such rule or order, or the Colonial Government of the Colony of New South for either of the Houses of Parliament by any resoluWales, which may have arisen, or may hereafter arise, tion passed at any time within three months best within the said colony, it shall and may be lawful for after such rules, orders, and regulations shall have any person or persons having such disputes or dif- been laid before Parliament, to suspend the whole or ferences to present a petition to the Governor of the any part of such rules, orders, or regulations, and in said colony, setting forth the particulars of the claim such case the whole or such part thereof as shall be of such petitioner, which petition shall, within fourteen so suspended shall not be binding and obligatory, days from the presentation thereof, be referred by the “4. The parties to any such proceeding shall have Governor to his Executive Council ; and if the said the same rights, either by way of appeal, rehearing Governor shall, with the advice of his Executive motion for a new trial, or otherwise, as in ordinary Council, think fit, the said petition shall be referred cases at law or in equity. to the Supreme Court of the said colony for trial by 5. Costs of suit shall follow on either side as in jury, or otherwise, as such Court shall, after such ordinary cases between suitors, any law or practice to reference, direct : Provided always, that in case the the contrary notwithstanding. Governor, with the advice of his Executive Council, “6. It shall be lawful for the Governor, with the shall certify in writing, indorsed on any such petition, advice of the Executive Council, to satisfy and pay ay so to be presented as aforesaid, that, in his opinion, judgment or decree recovered by any such petitioner the subject matter of such petition affects the Royal out of any available balance of the consolidated prerogative, it shall and may be lawful for the revenue of the said colony, and to perform the jade Governor, with such advice as aforesaid, to transmit ment or decree of the said Court in terms of sech the same to Her Majesty's Principal Secretary of State judgment or decree." for the Colonies, for the signification of Her Majesty's Under this Act pleadings were commenced is approval or disapproval; and if such petition be re- June, 1858, by the petition of the respondent to the turned with Her Majesty's approval, the same pro- Governor-General of the colony, for leave to sue the ceedings as are hereinbefore directed shall be taken Government, which was granted.

Pursuant to such leave, the respondent filed his lands in an inferior position and of less value, and declaration, which, so far as is material, was as subject to conditions and qualifications which rendered follows

the same not a fair and equitable value for the land “ 2. In the year one thousand eight hundred and so promised in Hyde Park ; and notwithstanding the twenty-six, the plaintiff was a captain in the Royal plaintiff was always ready and willing to accept a Staff Corps, and serving in this colony, with no inten- fair equivalent for the promised grant, none was ever tion of permanently residing therein.

offered or granted to the plaintiff, either by the said 3. In that year His Excellency General Darling, Sir Richard Bourke or any other governor of the the Governor of the colony, promised to the plaintiff, as colony." an inducement for him to settle in the colony, and for To this declaration the defendant pleaded as folother reasons, that he, the Governor (pursuant to his lowsauthority and instructions in that behalf possessed as “That the statements contained in the second, .such Governor) would grant to the plaintiff a portion third, fourth, fifth, and sixth paragraphs respectively, of Wooloomooloo.

of the declaration, are not, nor is any one of them " 4. Shortly afterwards, the said Governor set apart true;" and, to the statement contained in the seventh a certain portion of land near Sydney, called Hyde paragraph of the declaration, —" That a fair equivalent Park Gardens, to be divided into allotments, for the for the grant so promised as therein alleged, was purpose

of being granted by him, in pursuance of his offered to the plaintiff by Sir Richard Bourke, but the said authority and instructions, to divers persons, and plaintiff refused to aceept the same when offered, and thereupon the plaintiff gave up his claim to the fulfil- still refuses so to do." ment of the said first-mentioned promise, in consideration of receiving a promise from the said Governor of

Upon these pleas issue was joined, and the cause grant of one of the said allotments in Hyde Park was heard before the Supreme Court at Sydney, in Gardens; and a portion of the land so firstly promised

1860. to the plaintiff was granted to Dr. Douglas by the said

The following evidence appeared at the trial. Governor.

The respondent, being then a captain in the Royal 65. The plaintiff, relying upon the said promise, Staff Corps, had arrived in the colony with General retired from active service, and was placed upon half. Darling, in 1825, without any intention of permanently Day in the year one thousand eight hundred and residing in it. Prior to the month of November, twenty-seven, and thereupon became a permanent

1826, the Governor, in pursuance of powers vested in resident in the colony, and at various times held civil and exercised by him, promised the respondent a offices under the Government of the colony.

grant or an allotmeilt of land on the Wooloomooloo 6. The said second promise was subsequently Hills (a suburb of Sydney)

, on the condition of his ratified and confirmed by the authority of the said retiring from the service, and as an inducement to Governor, on the ninth of June and eighteenth of May, him to become a settler in the colony. This promise one thousand eight hundred and thirty-one, and, in

was at first verbal and general, and the quantity of | accordance therewith, on the twenty-first of October, the land was not specified or defined. 3 one thousand eight hundred and thirty-one, the

The respondent afterwards, in pursuance of an plaintiff was authorised and directed to select a

understanding with the Governor, renounced or re

particular allotment for the said promised grant, and to linquished the allotment destined for him, which connotify such selection to the Surveyor-General ; and sisted of about eight acres, in favour of a Dr. Douglas thereupon he, the plaintiff, made and notified such (to whom it was eventually granted by the Governor), selection, but by reason of there being then no suffi- upon an understanding that the respondent should ciently correct plan approved of by the Governor, have an allotment of other land at Hyde Park . such selection, pursuant to the said authority and

Gardens. direction, could not be, and was not, finally approved

On the 2nd of June, 1830, the respondent wrote the of by the Governor, and, by reason of the premises, following letter to the Governor to remind him of the promise so made to the plaintiff remained unful

this promise :filled.

"Sydney, June 2, 1830. 7. His Excellency Governor Darling left the "Sir,-I beg leave to bring to your Excellency's colony without his said promise to the plaintiff having recollection the circumstance of your implied probeen carried out, for the reason aforesaid, and his suc- mise, that I might have a building allotment in the cessor, Sir Richard Bourke, shortly after his arrival, neighbourhood of Sydney, and that on my renunciin the year one thousand eight hundred and thirty, ation of the land on the Wooloomoɔloo Hills, afterone, notified to the plaintiff that the said allotments wards given to Dr. Douglas, it was with the underin Hyde Park were not to be alienated, and the standing that I shoull receive a portion of the Hydo said promiseil grant could not therefore be made, Park Garden in lieu thereof. I trust, therefore, your but offered to the plaintiff, in lieu of one of the said Excellency will be pleased to direct that an allotment allotments so promised as aforesaid, certain other may be measured off for me.

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