Colonial Sugar Refining Company v Melbourne Harbour Trust Comrs
| Jurisdiction | UK Non-devolved |
| Judgment Date | 1927 |
| Court | Privy Council |
Victoria - Construction of Act - Expropriation without Compensation - Melbourne Harbour Trust - Vesting Act - Previous Title by Limitation - Wharf on Piles in navigable River - Nature of Title -
Before 1912 the appellants for a period of fifteen years had continuous use and occupation of a wharf and two strips of land within the statutory metes and bounds of Melbourne Harbour, and in consequence the title thereto of the Harbour Commissioners became extinguished under the Real Property Act, 1915 (Vict.). The wharf was constructed on piles driven into the bed and foreshore of a navigable river.
The Melbourne Harbour Trust Act, 1915, which was part of a general consolidation of statutes, repealed harbour vesting Acts of 1890 and 1912, and by s. 11 vested in the respondent Commissioners all the property which had vested in the Commissioners in 1912; s. 46 declared that the harbour within the specified metes and bounds should “continue to be vested in” the respondents upon trust for the statutory purposes.
The appellants brought an action against the respondents claiming among other things a declaration that they were entitled to the two strips of land and the wharf by virtue of the limitation provisions above referred to:—
Held — applying the principle that a statute should not be held to take away private rights of property without compensation unless the intention to do so was expressed in clear and unambiguous terms, and giving effect to the provisions of the Acts Interpretation Act, 1915 (Vict.), as to rights and liabilities under repealed Acts — that the vesting of the harbour in the respondents was subject to the title which the appellants had acquired by limitation; and accordingly that it should be declared that the appellants were entitled in fee simple to the two strips of land, also to that part of the bed and foreshore which was the site of the wharf. and to the wharf, but so that they should not be at liberty to increase the obstruction existing to the flow of the water beneath the wharf.
APPEAL and CROSS-APPEAL (No. 80 of 1926) by special leave from a judgment of the High Court of Australia (June 9, 1925) varying a judgment of the Supreme Court of Victoria.
The action was brought by the appellants in the Supreme Court against the respondents, claiming a declaration of their title in fee simple to two strips of land and a wharf situated within the statutory metes and bounds of Melbourne harbour, alternatively that they were entitled perpetually to exclusive use and occupation; a declaration that they were entitled to exercise the rights of riparian owners over one of the strips, consisting of reclaimed land, and the wharf; they also claimed an injunction and other relief.
The respondents counterclaimed for: (a) possession of the strips of land and of all wharves, piers and erections thereon or abutting thereon in the east, and (b) a declaration that the said strips of land and wharves, piers and erections were part of the Port of Melbourne and vested in, and subject to the exclusive control and management of, the Harbour Trust.
The facts are stated in the judgment of the Judicial Committee.
The trial judge (Mann J.) by his judgment, declared: (1.) that the company was entitled in fee simple to the northern and southern strips; (2.) that it was entitled to perpetual use and occupation of the wharf subject to the Harbour Trust's statutory powers of management and control and subject to all public rights in or relating to the said river, and (3.) that it was entitled, as owner of the adjoining land, to a right of easement over that portion of the river bed lying under the wharf to have and keep the said wharf erected upon piles in the said portion of the bed in such manner as to offer no further obstruction than at present exists to the flow of the water beneath the wharf. He also granted an injunction as prayed, and dismissed the counterclaim.
The Harbour Commissioners appealed to the High Court of Australia, which discharged the judgment of Mann J., and in lieu thereof gave judgment for the Harbour Commissioners on the counterclaim, making a declaration substantially as asked, and ordering possession to be delivered accordingly. To that extent the judgment of the High Court was unanimous. By a majority, however (Isaacs and Rich JJ.; Higgins J. dissenting), the Court made a declaration that the company was entitled, subject to the statutory powers of the Harbour Trust, to exercise the rights of a riparian owner in respect of the River Yarra over the strips of land and over the wharf so long as the same should remain. Higgins J. considered that the company had lost any riparian rights which it might once have possessed, but otherwise concurred in the views of the majority. The appeal is reported at
The Judicial Committee granted special leave to appeal and to cross-appeal.
1926. Nov. 16, 18, 19, 22. Maugham K.C., Dighton Pollock and J. M. Parry for the appellant company. The respondents' claim was in substance one to eject the company, the onus was therefore on the respondents. The appellants are entitled to the land claimed, or a large portion of it, as being part of a Crown grant in 1850 to the appellants' predecessor in title as amended in 1890. It was not within the metes and bounds of what was vested in the Commissioners by the Harbour Act of 1877. So far as the land was not within the grant, it was land filled in and covered with buildings and works by the consent of the Commissioners. There must therefore be presumed an irrevocable licence to use it for the purposes of the appellants' business, on the principle of Plimmer v. Mayor of WellingtonF1 and Attorney-General for Southern Nigeria v. Holt & Co.F2 On similar grounds the appellants have a perpetual licence to use and occupy the wharf. But in any case, both as to the land and the wharf, the appellants acquired a title by limitation under the Real Property Act, 1915 (Vict.), ss. 18, 43. On the true construction of the Melbourne Harbour Trust Act, 1915 (Vict.), the title so acquired was not taken away. The High Court did not give sufficient weight to the Acts Interpretation Act, 1915 (Vict.), nor to the fact that the construction they adopted would result in the appellants being deprived without compensation of property to which thay had acquired a valid title. The appellants' rights were preserved by s. 47 of the Harbour Trust Act of 1877, and similar sections in the subsequent Acts. With regard to the cross-appeal the appellants have done nothing to deprive themselves of their rights as riparian owners, and on that point the judgments below are right.
Latham K.C. (Attorney-General for Australia), W. A. Greene K.C. and Nesbitt for the respondents. The appellants obtained no title to the land now in dispute under the Crown grant of 1850, or the subsequent certificates of title. The licence to the appellants to use the land was of a purely temporary nature; the Commissioners were precluded by statute from granting a permanent licence; further the Crown is not bound by unauthorized acts of acquiescence of its officers: Ontario Mining Co. v. Seybold.F3 The cases relied on for the appellants are consequently distinguishable; further Holt's caseF4 turned on the duty of the Crown to protect the shore from erosion. Even if the appellants had acquired a title by limitation, the land and wharf was vested in the respondents by the Harbour Act of 1915, s. 46. But the appellants obtained no title by limitation, since the respondents do not claim through the previous Commissioners so as to make s. 19 of the Real Property Act, 1915, applicable. On the cross-appeal: the appellants by their own reclamations had shut off their property from the stream, and thereby lost any riparian rights which they possessed. Further, the Act vested the harbour as defined in the respondents and made it subject to their exclusive control and management; they had power therefore to prevent the exercise of any riparian rights.
[Reference was made also to Marshall v. Ulleswater Steam Navigation Co.F5; Attorney-General v. TerryF6; and Lyon v. Fishmongers' Co.F7]
Maugham K.C. replied.
1927. Jan. 18. The judgment of their Lordships was delivered by
LORD WARRINGTON OF CLYFFE. This is an appeal brought by special leave of His Majesty in Council from an order of the High Court of Australia in favour of the respondents, reversing an order of the Supreme Court of Victoria in favour of the appellants.
The appellants are the owners of a large sugar-refining factory on the banks of the River Yarra, a tidal navigable river within the limits of the harbour of Melbourne. The respondents are the Melbourne Harbour Trust Commissioners, in whom the Port of Melbourne, as described in the statutes under which they are constituted, is vested.
The question in the appeal concerns the title to: (1.) a wharf on the west bank of the River Yarra; (2.) a strip of land (hereinafter called “the northern strip”) lying to the west of the wharf; and (3.) a strip of land (hereinafter called “the southern strip”) lying to the west of another wharf, recently leased to the appellants by the respondents for a term which has now expired and as to which no question arises.
In the opinion of their Lordships, the real question to be decided in this appeal is whether under the circumstances of the present case the title of the...
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