and stating that he and his predecessors in title had for a hundred years used the natural current of the river for working the machinery of the mill, the declaration contained the following allegations, that the Beauport was a navigable river, and had, until the grievance complained of, been used by the plaintiff and his predecessors in the floating of bateaux and other vessels employed by them in conveying Law of Canada-Riparian Rights-Actual and Public Nuisance. A, the owner of the domain on one side of a river in Lower Canada, erected and completed a wharf on his property, and, as was alleged, upon a part of the bed of the stream which was used for navigation by the public. B, the owner of a water-mill on the opposite side of the river, brought an action for the damage occasioned by the new wharf to his mill. At the trial he failed to prove actual damage thereby caused, either before or since the commencement of the action: that the defendant intending to injure the plaintiff in his business of a miller did, between the 16th day of October preceding, and the date of the issue of the river than the plaintiff's mill, and in and upon the summons (the 29th of October), erect lower down the river Beauport, a certain wharf which nearly traversed the whole of the river, and which materially altered its natural course, and narrowed its channel so much that it was now impossible for the plaintiff to float bateaux or other vessels to the mill as he was used to do; and that the defendant had further, by means of Held, that under the law of Canada a person bring-running down the natural channel, and compressed the wharf, prevented the waters of the river from ing a private action for injury occasioned to him by an encroachment upon public property, must establish a case of actual and not of apprehended damage to himself. An officer suing on behalf of the public has a right to call for the demolition of any work erected without licence on the public domain, and is not required to show any actual damage occasioned thereby. The dénonciation de nouvel oeuvre under the old French law, applied only to works not yet completed, and it ceased with their completion. The remedy which it gave was the suspension, not the demolition, of the work complained against. This was an appeal from a judgment of the Court of Queen's Bench in Canada, which confirmed a judgment of the Superior Court dismissing an action brought by the appellant against the respondent. The appellant is the owner and occupier of a watermill on one side of the river Beauport. The respondent is the owner of the domain of Beauport on the other side of the river. In the month of October, 1852, the respondent erected a wharf on land which he insisted was part of his estate. The appellant alleged that this wharf was injurious to him; and on the 29th of October, 1852, he commenced an action against the respondent in the Superior Court of Lower Canada, and on the same day filed his declaration. the channel to so small a breadth that whenever the waters of the river, from the freshets or otherwise, became high, the waters receded or were thrown back upon the plaintiff's mill, by reason whereof, and by means of the still water thereby occasioned, the mill could not be worked, and that in consequence of the illegal and tortious acts of the defendant in erecting the wharf, the plaintiff had been, and still was, prevented from using the waters of the river and working his mill, as he otherwise would have done, to his damage of the sum of 3007. currency. The conclusions of the summons were, 1. That the defendant might be decreed within eight days, or such other time as the Court might appoint, to demolish and remove the wharf, and that in default of his doing so the plaintiff might be authorised to do so at the defendant's expense. 2. That the defendant might be ordered to pay 3001. currency for the damage aforesaid, and costs. The whole without prejudice to any further damages that might be sustained by the plaintiff by reason of the erection of the wharf. The defendant in his answer denied generally the allegations of the plaintiff, and pleaded various special matters both of law and of fact, to which it is not necessary, for the purposes of this report, to advert. The cause being at issue, much evidence was produced on both sides, and in April, 1857, the Court referred it to three gentlemen as experts to make After setting forth the appellant's title to the mill, inquiries and report to the Court their opinion on VOL. III. A A several of the matters in dispute, with directions upon one particular point to receive further evidence. These gentlemen differed amongst themselves, two! concurring in a report, and the other making a separate report; and, after much expense and delay, finally the cause came on for hearing before the Superior Court-Mr. J. Stewart being the Judge present, when the following order was pronounced : "February 1, 1860. "The Court having examined the proceedings of record, the evidence adduced, and heard the parties by counsel on the merits; considering that the plaintiff hath failed to establish in evidence that the defendant hath erected, or caused to be erected, in and upon the river Beauport, a wharf which crosses the said river in any measure, or which obstructs or diverts the natural course of the same; considering that the river Beauport is alleged and proved to be a navigable river, and that any obstruction to the same would be a public nuisance; and considering that no action by an indi vidual lies for a public nuisance, unless the party bringing such action has received special and particular damage therefrom; considering that the said plaintiff hath failed to show in evidence that he has received any special or particular damage from the erection of the present wharf, -doth dismiss the present action with costs." From this decision the plaintiff appealed to the Court of Queen's Bench, and that Court, by a majority of three Judges to two, affirmed the judgment, and from the decision of these two Courts the present appeal was brought. The Attorney-General and H. M. Bompas, for the appellant, argued at great length on the questions of fact, and on several points of law not noticed in the judgment. The respondent appeared in person. 15 FEB. 1864. The opinion of the Committee was delivered by LORD KINGSDOWN, who said The only question which it was their duty to decide was whether the judgment dismissing the action ought to be reversed or varied; in other words, whether the appellant at the hearing below established a case which entitled him, secundum allegata et probata, to any relief. The action was founded on the allegation of damage caused to the plaintiff by a tortious act of the defendant. It complained both of injury already suffered before the commencement of the action, and of continuing injury, and sought appropriate relief in respect of each complaint-compensation, in money, for the first, and demolition of the wharf for the second. The Courts below had found that the plaintiff had failed to prove any damage whatever sustained by him from the works of the defendant, either before the commencement of the action or subsequently. Could they say that either of these findings was erroneous? As to the first, its propriety was hardly disputed at the bar, and it did not admit of dispute. As to the second, although there was a great deal of conflicting testimony, and much room for doubt, two Courts had come to a decision in favour of the defendant. The question was one upon which the Judges in the colony were more competent to form an opinion than the Judicial Committee, and it was not their habit to advise an alteration of a judgment unless they could see clearly that, upon some point, there had been a miscarriage in the inferior Courts. This they were unable, in the present case, to discover. The observations of Mr. Justice Meredith showed that he had examined the case with the utmost care and impartiality; and the clearness and temper with which he expressed the conclusion at which he had arrived added great weight to his opinion. It was said, however,-and this was the point relied on by the dissenting Judges,—that it was unnecessary for the plaintiff in the action to prove actual damage; that the action might be maintained as one of dénonciation de nouvel œuvre, and that in such an action it was sufficient to prove that the work complained of would, or probably might, be attended with injury to the plaintiff. But the action of dénonciation de nouvel aurre was of a different description from the present, was founded upon a different state of circumstances, and sought a different relief. In such an action the plaintiff claims protection against a work commenced, and still in progress, by which, if completed, he alleges that he will be injured. If such an action were brought, it appeared that the Judge might either interdict the further progress of the work or require security to be given by the defendant to the plaintiff against any injury which he might sustain; but when the work was completed this form of action was no longer competent. This appeared to have been the law of Rome. In the Dig., lib. xliii., tit. 15, "De Ripa munienda,” after a statement that any protection to the banks of a public river must be made in such a manner as not to hinder navigation, so that any person who appre hended injury from the work might apply to the Prætor for an interdict to restrain it and might obtain security, this passage occurred:-"§ 5. Etenis curandum fuit ut eis ante opus factum caveretur. Nam post opus factum persequendi hoc interdicts nulla facultas superest etiam si quid damni postra datum fuerit, sed Lege Aquilia experiendum est." The law and form of procedure of Rome seemed in this respect to have been adopted into the law of France. In Daviel, "Cours d'Eau," tit. "Du Domaine Public," par. 471, it was distinctly laid down that by the old French law, that is, by the law now prevailing in Lower Canada, the dénonciation de nouvel aurre could only be maintained if instituted before the work was completed, though by an alteration introduced by the French Code, the law in this respect was now altered and the action might be maintained in respect of a work either "fait ou commencé." The author says,— "Je dis nouvel œuvre fait ou commencé. Sous l'ancienne jurisprudence la dénonciation n'était plus recevable du moment que le nouvel œuvre était terminé; c'est ce que cette action avoit de spécial, comme aussi la faculté pour l'auteur du nouvel œuvre de continuer son travail en donnant caution et la restriction du droit du Juge à suspendre les travaux sans pouvoir les faire détruire. Mais sous notre nouveau droit la dénonciation de nouvel œuvre est assimilée aux autres actions possessoires par cela que les lois n'ont pas réproduit les conditions particulières qui la caractérisaient autrefois." In this case there was no doubt that the work was completed before the action was commenced, and the relief sought was different from that which, according to Daviel, could be granted in an action of dénonciation de nouvel œuvre. But even if the present suit could be regarded as an action of that description, it would be equally met by the objection that the plaintiff had failed to prove that the work would be injurious to him. It was then said that, however the law might be, if the bank on the face of which this wharf was built were the private property of the defendant, a distinction was to be made, because the bank was, in truth, part of the bed of the river, and a portion of the public domain, and that a work erected upon it was a public nuisance of which any person interested had a right to complain. That the bank in question was a part of the bed of the river, and a portion of the public domain, was not in terms alleged by the pleadings. The averment was said at the bar to be contained inferentially in the statement that the wharf erected by the defendant nearly traversed the whole of the river, which it would not do unless the bank formed part of the river. If the fact were essential to our decision in this case, we should feel great difficulty in holding that the plaintiff had either sufficiently put it in issue by his declaration or established it by evidence. But it was not necessary to decide this question. The law of Lower Canada, as collected from the authorities, seemed to stand thus, An officer suing on behalf of the public has a right at his own instance, or on the application of any person interested, to call for the demolition of any work erected without license on the public domain, and he is no more required to prove that the erection has occasioned actual damage to the public than a private person who complains of a wrongful invasion of his property is obliged to prove that it has occasioned actual damage to him. But although such officer may, if he think proper, take proceedings to abate the nuisance, he is not obliged, nor is it in all cases his duty, to interfere. A case of this kind was put by Proudhon, in a passage cited by Mr. J. Aylwin. He says, "It may be that in the case of a dyke erected in the bed of a navigable river the dyke may do no injury to the actual state of the navigation, as being built in an arm of the river where navigation is not practised, and which, nevertheless, does not on that account cease to be a part of the public domain." This supposed case had much resemblance to the present. The particular portion of the river where the channel was said to have been contracted did not appear to have been actually in use by the public for the purposes of navigation. If the public officer refused to interfere, an individual who suffered injury was not prejudiced; he had still his action privée, by which he might recover damages for injury already sustained, and the abatement of the cause of such injury for the future. The public and private action were said to be not only independent of each other, but essentially distinct in their object. The fact that the place where the work was erected was public property was of course very important in both cases, in regard to the right of the defendant to do what he had done; but it did not according to the law, as collected from the authorities, supersede the necessity of the plaintiff in a private action proving that he had sustained injury by the work special to himself, and beyond that which was common to the public at large, and this the plaintiff in the present case had failed to do. Minute.-Judgment affirmed, with costs. Privy Council. ROBERTSON, Appellant. 5, 6, 17 FEB. 1864. DUMARESQ, Respondent. Present-LORD CHELMSFORD, LORD JUSTICE KNIGHT BRUCE, LORD JUSTICE TURNER. Act of New South Wales in Substitution for Petition of Right (20 Vict. No. 15)—Promise of Allotment of Land by Colonial GovernorConsideration-Measure of Damages. An officer in military service in a colony sold his commission and settled there on the promise of a grant of "an allotment of land" at W. This promise was made verbally by the Governor, and afterwards recognised by him and his successors in certain official letters and minutes, but was never performed. Subsequently the settler consented to an allotment of land at H being substituted for that at W. The second allotment was otherwise disposed of, and was never conveyed to him, and he was subsequently offered a third allotment at I, which he refused. He then brought an action against the Government under the Local Act to afford relief in substitution of the process by petition of right :— Held, that proceedings under this Act materially differed 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:— Held, also, that the letters and minute of the Governor afforded good evidence of the fact of such a promise being given, and the agreement to settle in the colony would constitute a good consideration, if it were necessary to prove this. Damages for breach of such a promise were rightly assessed by reference to the highest value of that of which the claimant had been deprived during the breach of agreement. This was an appeal against the decision of the Supreme Court of New South Wales refusing a new trial in a proceeding in the nature of an action brought by the respondent, in substitution for the remedy by petition of right under the local statute, 20 Vict. No. 15, against the Government of the colony, the appellant being the nominal defendant representing the Government. The statute in question is as follows:- "Whereas disputes and differences have arisen and may hereafter arise between the subjects of Her Majesty the Queen and Her Majesty's Local Government in the Colony of New South Wales, the subjectmatter of which disputes and differences has arisen or may arise within the said colony: And whereas the ordinary remedy by petition of right is of limited operation, and is insufficient to meet all such cases, and is attended with great expense, inconvenience, and delay Be it therefore enacted," &c. &c., "as follows: "1. In all such cases of dispute or difference touching any claim between any subject of Her Majesty and the Colonial Government of the Colony of New South Wales, which may have arisen, or may hereafter arise, within the said colony, it shall and may be lawful for any person or persons having such disputes or differences to present a petition to the Governor of the said colony, setting forth the particulars of the claim of such petitioner, which petition shall, within fourteen days from the presentation thereof, be referred by the Governor to his Executive Council; and if the said Governor shall, with the advice of his Executive Council, think fit, the said petition shall be referred to the Supreme Court of the said colony for trial by jury, or otherwise, as such Court shall, after such reference, direct: Provided always, that in case the Governor, with the advice of his Executive Council, shall certify in writing, indorsed on any such petition, so to be presented as aforesaid, that, in his opinion, the subject-matter of such petition affects the Royal prerogative, it shall and may be lawful for the Governor, with such advice as aforesaid, to transmit the same to Her Majesty's Principal Secretary of State for the Colonies, for the signification of Her Majesty's approval or disapproval; and if such petition be returned with Her Majesty's approval, the same proceedings as are hereinbefore directed shall be taken petition being returned without such approval, the same, together with the indorsation thereon, and the reasons assigned for withholding such approval, shall be forthwith published in the New South Wales Government Gazette,' in which case the remedy hereby provided shall not be had. "2. At the time of such reference for trial as aforesaid, the Governor, with such advice as aforesaid, shall name some person or persons to be a nominal defendant in the matter of such petition, the petitioner being the plaintiff therein, provided that nothing in this Act shall be construed to extend so as to subject any such nominal defendant to any individual responsibility in person, goods, chattels, estate, or otherwise, by reason of his being such nominal defendant. "3. It shall be lawful for the Judges of the Supreme Court, or any two of them, to make all such general rules and orders for the regulation of the pleadings, practice, or proceedings on any such petition as to such Court shall seem necessary for the purpose aforesaid. And all such rules, orders, or regulations shall be laid before both Houses of Parliament of the Colony, if Parliament be then sitting, immediately upon the making of the same; or if Parliament be not sitting, then within five days after the next meeting thereof; and every rule and order so made shall be of the like force and effect as if the provisions contained therein had been expressly enacted by Parliament. Provided always, that it shall be lawful for the Governor, with the advice of the Executive Council, in Her Majesty's name, by any proclamation inserted in the Government Gazette,' at any time within three months after the making of any such rule or order, er for either of the Houses of Parliament by any resolution passed at any time within three months next after such rules, orders, and regulations shall have been laid before Parliament, to suspend the whole er any part of such rules, orders, or regulations, and in such case the whole or such part thereof as shall be so suspended shall not be binding and obligatory. "4. The parties to any such proceeding shall have the same rights, either by way of appeal, rehearing motion for a new trial, or otherwise, as in ordinary cases at law or in equity. "5. Costs of suit shall follow on either side as in ordinary cases between suitors, any law or practice to the contrary notwithstanding. "6. It shall be lawful for the Governor, with the advice of the Executive Council, to satisfy and pay szy judgment or decree recovered by any such petitioner out of any available balance of the consolidated revenue of the said colony, and to perform the judg ment or decree of the said Court in terms of such judgment or decree." Under this Act pleadings were commenced in June, 1858, by the petition of the respondent to the Governor-General of the colony, for leave to sue the Government, which was granted. Pursuant to such leave, the respondent filed his declaration, which, so far as is material, was as follows "2. In the year one thousand eight hundred and twenty-six, the plaintiff was a captain in the Royal Staff Corps, and serving in this colony, with no intention of permanently residing therein. lands in an inferior position and of less value, and subject to conditions and qualifications which rendered the same not a fair and equitable value for the land so promised in Hyde Park; and notwithstanding the plaintiff was always ready and willing to accept a fair equivalent for the promised grant, none was ever offered or granted to the plaintiff, either by the said Sir Richard Bourke or any other governor of the colony." "3. In that year His Excellency General Darling, the Governor of the colony, promised to the plaintiff, as 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 authority and instructions in that behalf possessed as such Governor) would grant to the plaintiff a portion of Wooloomooloo. "4. Shortly afterwards, the said Governor set apart a certain portion of land near Sydney, called Hyde Park Gardens, to be divided into allotments, for the purpose of being granted by him, in pursuance of his said authority and instructions, to divers persons, and thereupon the plaintiff gave up his claim to the fulfilment of the said first-mentioned promise, in consideration of receiving a promise from the said Governor of a grant of one of the said allotments in Hyde Park Gardens; and a portion of the land so firstly promised to the plaintiff was granted to Dr. Douglas by the said Governor. "5. The plaintiff, relying upon the said promise, retired from active service, and was placed upon halfpay in the year one thousand eight hundred and twenty-seven, and thereupon became a permanent resident in the colony, and at various times held civil E offices under the Government of the colony. "6. The said second promise was subsequently ratified and confirmed by the authority of the said Governor, on the ninth of June and eighteenth of May, one thousand eight hundred and thirty-one, and, in accordance therewith, on the twenty-first of October, one thousand eight hundred and thirty-one, the plaintiff was authorised and directed to select a particular allotment for the said promised grant, and to notify such selection to the Surveyor-General; and thereupon he, the plaintiff, made and notified such selection, but by reason of there being then no sufficiently correct plan approved of by the Governor, such selection, pursuant to the said authority and direction, could not be, and was not, finally approved of by the Governor, and, by reason of the premises, the promise so made to the plaintiff remained unful filled. "7. His Excellency Governor Darling left the colony without his said promise to the plaintiff having been carried out, for the reason aforesaid, and his successor, Sir Richard Bourke, shortly after his arrival, in the year one thousand eight hundred and thirtyone, notified to the plaintiff that the said allotments in Hyde Park were not to be alienated, and the said promised grant could not therefore be made, but offered to the plaintiff, in lieu of one of the said allotments so promised as aforesaid, certain other lows "That the statements contained in the second, third, fourth, fifth, and sixth paragraphs respectively, of the declaration, are not, nor is any one of them true" and, to the statement contained in the seventh paragraph of the declaration,-"That a fair equivalent for the grant so promised as therein alleged, was offered to the plaintiff by Sir Richard Bourke, but the plaintiff refused to accept the same when offered, and still refuses so to do." Upon these pleas issue was joined, and the cause was heard before the Supreme Court at Sydney, in 1860. The following evidence appeared at the trial. The respondent, being then a captain in the Royal Staff Corps, had arrived in the colony with General Darling, in 1825, without any intention of permanently residing in it. Prior to the month of November, 1826, the Governor, in pursuance of powers vested in and exercised by him, promised the respondent a grant or an allotment of land on the Wooloomooloo Hills (a suburb of Sydney), on the condition of his retiring from the service, and as an inducement to him to become a settler in the colony. This promise was at first verbal and general, and the quantity of the land was not specified or defined. The respondent afterwards, in pursuance of an understanding with the Governor, renounced or relinquished the allotment destined for him, which consisted of about eight acres, in favour of a Dr. Douglas (to whom it was eventually granted by the Governor), upon an understanding that the respondent should have an allotment of other land at Hyde Park Gardens. On the 2nd of June, 1830, the respondent wrote the following letter to the Governor to remind him of this promise: "Sydney, June 2, 1830. "SIR,-I beg leave to bring to your Excellency's recollection the circumstance of your implied promise, that I might have a building allotment in the neighbourhood of Sydney, and that on my renunciation of the land on the Wooloomooloo Hills, afterwards given to Dr. Douglas, it was with the understanding that I should receive a portion of the Hyde Park Garden in lieu thereof. I trust, therefore, your Excellency will be pleased to direct that an allotment may be measured off for me. |