Plimmer v Mayor of Wellington

JurisdictionUK Non-devolved
Judgment Date1883
Date1883
Year1883
CourtPrivy Council
[PRIVY COUNCIL.] PLIMMER AND ANOTHER APPELLANTS; AND THE MAYOR, COUNCILLORS, AND CITIZENS OF THE CITY OF WELLINGTON RESPONDENTS. ON APPEAL FROM THE COURT OF APPEAL, NEW ZEALAND. 1884 June 10, 11, 12, 25. LORD WATSON, SIR BARNES PEACOCK, SIR ROBERT P. COLLIER, SIR RICHARD COUCH, and SIR ARTHUR HOBHOUSE.

Law of New Zealand - Right to Compensation - Wellington Harbour Board and Corporation Act, 1880 - The Public Works Act, 1882, s. 4 - “Estate or interest in land.”

Land having become vested in the respondents under the Wellington Harbour Board and Corporation Land Act, 1880, the appellants claimed compensation under the Public Works Act, 1882, on the ground of their having some estate or interest therein within the meaning of the latter Act.

It appeared that the appellants' lessor (or his predecessor in title) had in 1848 erected a wharf on the said land, with the permission of the Government, and in 1855 a jetty; that in 1856, at the request and for the benefit of the Government, he incurred large expenditure for the extension of his jetty and for the erection of a warehouse; that in subsequent years the Government used, paid for, and, with the consent of the said lessor, improved the said land and works:—

Held, that the lessor must be deemed to have occupied the ground from 1848 under a revocable license to use it for the purposes of a wharfinger; that by virtue of the transactions of 1856 such license ceased to be revocable at the will of the Government, whereby the lessor acquired an indefinite, that is, practically, a perpetual right to the jetty for the purposes aforesaid. The equitable right so acquired is an “estate or interest in, to or out of land” within the wide meaning of the Act of 1882, which directs that in ascertaining title to compensation the Court should not be bound to regard strict legal rights only but should do what is reasonable and just.

Ramsden v. Dyson (Law Rep. 1 H. L. 129) approved.

APPEAL from an order of the Court of Appeal (June 6, 1883,) made on the hearing of a special case stated for the opinion of the Court.

The facts stated in the special case sufficiently appear in the judgment of their Lordships.

The question for decision was whether the appellants had any estate or interest which would entitle them to compensation in respect of the lands in question under the provisions of the Colonial Acts above mentioned. The special case was stated by a Compensation Court constituted under the Public Works Act, 1882, which was incorporated with the Land Act of 1880 and its amending Act of 1882. It was stated for the opinion of the Supreme Court, and by the latter Court was transferred to the Court of Appeal, who answered it in the negative.

Their judgment is as follows:—

“We think this case may be safely decided on the one ground, that Plimmer had the Ark and the entire wharf, as a tenant at will, and that what took place in 1861, when the jetty, as it exists at present, was severed from the Ark, constituted a determination of the then existing tenancy at will over the whole, and the creation of a fresh tenancy at will as to the remainder. If this be the case, the possession of the claimant starts from 1861, and the statutory period of limitation would not, therefore, have expired when the land became again vested in the Crown in 1876. The land on which the Ark itself stood was occupied first in 1848, by the permission of Sir George Grey, the then Governor. The jetty erected in 1855 appears to have been erected without any objection being raised on behalf of the Crown, but without the sanction of any existing authority. In October, 1855, however, the land on which the Ark and the jetty stood became vested by grant in the superintendent. Of this grant the case finds Mr. Plimmer to have been aware. Shortly after the grant was issued, Mr. Plimmer, at the request of the Provincial Government, extended the jetty, and having reclaimed some land adjoining the Ark, he, at the request of the Provincial Government, erected a shed for the accommodation of immigrants on a portion of the land so reclaimed. At this time therefore, the position of matters was as follows:— Mr. Plimmer had built a wharf on land that had become vested in the superintendent for provincial purposes. Mr. Plimmer and the Provincial Government were aware how the title stood, and Mr Plimmer, at the request of the Provincial Government, took possession of other parts of the land held under the same grant, and extended the existing wharf at one end of it, and erected buildings at the other. As to the land which he then took possession of at the request of the Provincial Government, there is no doubt that, in taking possession of it, he became tenant at will to the superintendent. The extension of the jetty would be, however, useless without the existing jetty, and it must therefore have been in contemplation both of Mr. Plimmer and the Provincial Government, when he was requested to extend the existing jetty, that he should be allowed to occupy the existing jetty. It seems to us that the evidence is conclusive that at the time of the extension of the jetty the occupation of the then existing jetty was permissive, and that Mr. Plimmer was at that time the tenant at will of the then existing jetty. When such tenancy commenced is of no moment; all that is material for the present argument is the undoubted fact that it had not commenced twenty-one years before 1861, so as to oust the superintendent, and that there was nothing to alter the relations of the parties between the time of the extension of the jetty and the time of the occurrences in 1861. There being, therefore, a tenancy at will of the Ark, the land adjoining, and the jetty in 1861, how do the occurrences of that year affect the relations of the parties? The case states that the Provincial Government, with the permission of Mr. Plimmer, cut away that part of the jetty which extended from the Ark to a few feet beyond the present eastern line of Custom-house Quay; that they re-claimed the land on which the jetty stood, and converted the land into part of a public street. Now, it appears clearly, from the other part of the case, that the permission said to have been given by Mr. Plimmer was not given by him as claiming to be entitled to the fee simple of the land, or as asserting a legal right to it. He came, as the case shews, as a suppliant to the Provincial Government, appealing, therefore, not to his legal rights, but to the public faith of the province. As I understand, the effect of this taking possession of a part of the entire tenement by the Provincial Government, with the assent of the tenant at will, would be to determine the tenancy at will which then subsisted as to the entire tenement. The part that was taken possession of was essential to the then mode of enjoyment of the tenement as a whole. The ultimate effect also of the operations of the Provincial Government would have been to have rendered the part of the jetty which they did not occupy incapable of enjoyment as a jetty at all, because, when the reclamation was finished, a gap was left between the jetty and the eastern line of Custom-house Quay. If it were necessary to shew that the Provincial Government entered into occupation of a part — and, in our opinion, it is quite unnecessary — still there is evidence that they did occupy it, because the space left between the quay and the jetty was part of it, and, by leaving this space, they prevented the beneficial enjoyment of the remainder by Mr. Plimmer. It is not, however, sufficient to decide that the former tenancy at will was determined: it must be further shewn that a new tenancy at will was then created. This, I think, is shewn clearly by the circumstance that the title of the superintendent to the fee was well known to Mr. Plimmer, and that he obtained permission, as the case states, to connect the residue of the jetty with the breastwork of Custom-house Quay. That permission was necessary to his enjoyment of the jetty, and was, in effect, an express permission to enjoy it thenceforward. To create a new tenancy-at-will it would be sufficient if, after the determination of the existing tenancy, a fresh permission could be implied. Here the permission is expressed. The answer, therefore, to the first question is in the negative.”

Webster, Q.C., and Ollivier, for the appellants, contended that this judgment was wrong. The transactions referred to in the case did not create a mere tenancy at will. The appellants derived title in this way; they were grantees of persons who had an exclusive easement over the jetty. Their lessor or his predecessors in title became occupiers of this jetty for more than twenty-one years, and when the property was revested in the Crown in 1876 it did not get a right to eject the appellants. By this exclusive occupation or possession, originally obtained by permission, but continued for more than twenty-one years without acknowledgment of a superior title, the appellants had acquired the fee: see 3 & 4 Will. 4, c. 27. The Government, moreover, had acknowledged Plimmer's title as to part of the land in dispute and compensated him for disturbance of his rights in 1863. The respondents in their printed case contend that the land in question was at the date of appropriation by Plimmer part of the sea-bed in the Port of Wellington...

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  • CONSTRUCTIVE TRUSTS AND DISCRETION IN AUSTRALIA: TAKING STOCK.
    • Australia
    • Melbourne University Law Review Vol. 44 No. 3, April 2021
    • 1 April 2021
    ...113-14 [10] (Gleeson CJ, McHugh, Gummow and Callinan JJ), citing Flimmer v Mayor, Councillors and Citizens of the City of Wellington (1884) 9 App Cas 699, 714 (Sir Arthur Hobhouse for the (136) Muschinski (n 7) 615 (emphasis added). (137) Harding and Malkin (n 126) 260. (138) Bathurst (n 7)......

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