Crown purposes. Its dimensions and conditions varied from time to time. It was cleared out occasionally, and its course seems never to have been altogether obliterated. The land through which it ran, with other adjacent Crown land, was divided into allotments and sold by the Crown in June 1887. The plaintiff purchased from the Crown grantee two of the allotments then sold. In September 1896, after the plaintiff had purchased, the defendant blocked the drain in another of the allotments, which then belonged to his daughter. At the point where he blocked it the drain was then a well-defined watercourse, and he filled it with logs and clay. The case came on for hearing before Williams, J., without a jury, and at the conclusion of the evidence the following questions were referred to the Full Court, and His Honor made the following finding of facts:Questions reserved :-(1.) Whether the plaintiff has any cause of action under or by reason of sec. 4 of the Water Act 1890 and the Acts embodied therein? (2.) Or has any cause of action on an implied grant or reservation arising out of the fact that the respective allotments of land were sold and granted on the same day by the Crown to the respective purchasers with the drain running through allotments 1, 2, 3, 5, and 6. (3.) Whether the plaintiff is entitled to maintain the cause of action mentioned in reservation No. 2 on the pleadings as they stand. Findings:(1.) I accept the plan and sections with their contents as correct. (2.) I find that the land was sold under the Land Act 1884, and that there was no permission by the Minister or Department to obstruct the drain which was on the land when sold. There was a third finding as to the effect of the stoppage, the learned Judge accepting the plaintiff's version as to the prejudicial effect thereof upon her land. After the Court had delivered its judgment as first pronounced, counsel for the plaintiff raised the question that the inference drawn by the Full Court from the evidence was against the evidence, and the case was re-argued upon the question of fact. Judgment was reserved, and was on a subsequent day delivered in the form now appearing. It has not been considered necessary to set out the arguments upon the subsequent hearing. F.C. 1898 HOWITT v. FITZGERALD. F.C. 1898 HOWITT v. FITZGERALD. Cussen for the plaintiff-Sec. 4 (a) of the Water Act 1890 was intended to be a statutory grant or reservation of an easement that the drains were to be left as they were when the Crown sold the land. That section was in the Land Act 1860, No. 117, in the Act No. 145, in Act No. 360, and Act No. 812, and it was in the Irrigation Act of 1886. At the time of the consolidation of the statutes it was in the Land Act 1884 and in the Irrigation Act 1886, and since the consolidation it is in the present Water Act 1890. Sec. 4 practically amounts to an express grant. There being a breach of a statutory duty, the plaintiff has a right to recover damages, notwithstanding the penalty enforceable under the section. The effect of the cases on this subject is that the Court will look in each case at the intention of the Legislature, to see whether the individual is limited to the statutory remedy only: Couch v. Steele (b); Atkinson v. Newcastle Waterworks Company (c); Ward v. Hobbs (d); Corporation of Raleigh v. Williams (e). It does not matter whether the duty is imposed for public purposes primarily, if it be for private benefit: Chamberlain v. The Chester and Birkenhead Railway Company (f). Secondly, there is an implied grant or reservation arising out of the fact that these respective allotments were sold by the Crown with these drains upon them. The same implication will arise against the Crown as against an individual. It is really a question of construction. Goddard on the Law of Easements (4th ed.), p. 179, summarizes the effect of the cases thus-" The (a) "Sec. 4. When at the time of any conveyance heretofore or hereafter made under Act No. 117 the Land Act 1862 the Amending Land Act 1865 the Land Act 1869 the Land Act 1884 or the Land Act 1890 any stream creek race or drain flows through or over the land so conveyed or the bed or channel of any disused stream race or drain or any dam or reservoir is upon the land so conveyed although no reservation or exception thereof be contained in the Crown grant of such land no person unless specially authorized thereto by the Minister shall obstruct destroy or interfere therewith under a penalty not F.C. 1898 HOWITT v. old rule that upon severance of an estate and in the absence of any express grant, those quasi-easements which the owner of the entirety has been accustomed to use for the beneficial enjoyment of the part sold over the part retained, if of an apparent FITZGERALD. and continuous character, will be given to the grantee by implied grant, but that similar easements cannot be reserved for the benefit of the part retained by implied reservation, has been almost swept away:" See Pyer v. Carter (g). In Phillips v. Low (h) a testator being seized in fee in possession of a house with windows and of an adjoining field over which the right of light required for the windows passed, devised the house to one, and the field to another, and it was held that the right to light over the field passed to the devisee of the house. The right to the flow of water is analogous to the right to light: Bunting v. Hicks (i). If there is a convenience obviously useful to the so-called dominant tenement the easement will attach. Counsel referred to the following cases: Taylor v. Browning (k); Armory v. Delamirie (1); Vaughan v. Benalla, Shire of, etc. (m). Irvine for the defendant-It is not sufficient to show that there is a general duty created by sec. 4 of the Water Act 1890; it must be shown that the duty created was for the doing something for the particular benefit of the plaintiff. The classes of cases in which a liability may be established, founded upon a statute, are enumerated by Willes, J., in the case of the Wolverhampton New Waterworks Company v. Hawkesford (n). Where there is a statutory duty created, and the mode of enforcing that duty is prescribed, that is the only mode to be adopted for breach of that duty; where a statute creates a benefit for a particular individual, the fact that a penalty is given for the breach does not deprive the individual of his right of action. There is a further limitation that in cases where the penalty goes to the person intended to be benefited his right of action (g) [1857] 1 H. & N. 916. (h) [1892] 1 Ch. 47. (i) [1894] 70 L.T. 455. (k) [1885] 11 V.L, R. 158, (2) 1 Sm. L.C. (8th ed.), p. 377. (n) [1859] 6 C. B. N.S., p. 356. F.C. 1898 HOWITT v. FITZGERALD. is taken away. By sec. 4 no such benefit is created for any particular individual; there is merely a reservation in favour of the Crown. In the case of Stevens v. Jeacocke (o) it is laid down that an action "will not lie for the infringement of a right created by statute when another specific remedy for infringement is provided by the same statute." As to the second ground, the authorities cited do not apply to grants from the Crown; the rules of construction applying to grants by individuals have no application whatever to grants from the Crown. The rule of law relied on by the plaintiff rests upon the principle that a man cannot derogate from his own grant, but in cases where the Crown is concerned nothing is granted except the grant is in plain, unambiguous language. That which the Crown has not granted by express, clear, and unambiguous terms, the subject has no right to claim under a grant or charter:" Feather v. The Queen (p); Broom's Legal Maxims (6th ed.), p. 560. (Counsel was stopped by the Court.) Cussen-In the case of Dixon v. London Small Arms Co. (q), the case of Feather v. The Queen was considered, and it was held that its effect should not be extended. The defendant here claims the Crown's privilege, but an exception in favour of the Crown is to be implied in favour of the Crown alone. In obstructing this drain the defendant did not act as the agent or servant of the Crown, and because he is a Crown grantee he does not thereby become entitled to the protection afforded by the section in favour of the Crown. In the case of Dixon v. London Small Arms Co., Lord Selborne said: "It would be inconsistent with the grant to hold that the exemption of the Crown from this privilege can be imparted to a subject." The rule of construction does not apply to a case which is not a rule of construction at all, but which depends upon evidence to identify the thing that was sold. Then again, the rule is only to be applied to the extent that is necessary or desirable—that is, for the protection of the Crown or of someone on behalf of the (p) [1865] 6 B. & S. 257, p. 283. (7) [1876] 1 App. Cas. 632, (0) [1848] 11 Q.B. 731, p. 741. Crown. Thirdly, the rule does not apply at all to the circumstances of a Crown land sale in this colony. Counsel referred to Osborne v. Morgan (r). Irvine-The only way in which the Crown can grant anything, except in so far as particular statutes enable it to do it in another way, is by matter of record: Chitty on the Prerogative, p. 389-" Crown Grants." There is nothing in the Land Act 1890, sec. 7, or in any preceding Land Act, which places Crown grants in a different position from grants under Crown manual or seal. The Crown only gives when it does so expressly. The question whether the general principles of Crown grants apply was considered in Att.-Gen. v. Sitwell (8). The principle is stated in Chitty's Blackstone, vol. ii., p. 347. This grant should be construed strictly. A strict construction is not limited to cases where valuable consideration is given: Co. Litt., 352A; Whistler's Case (t); Sir John Molyn's Case (u). Assuming that the effect of sec. 4 of the Water Act 1890 is to reserve the drain and all rights in connection with it for public purposes, any interference with the drain will not give a right of action: Garibaldi Co. v. Craven New Chum Co. (v). [A'BECKETT, J. The injury was not the same as in this case. The plaintiff was not injured.] There the trespass, if any, was against the Crown, and the only redress was through the Crown. An implied grant can only arise from two things-(1) easement of necessity; (2) enjoyment and user as convenience. There is neither evidence of necessity nor of user. It was a police reservation. [A'BECKETT, J. Howitt bought the land. It was drained by an artificial drain on Crown lands, and it might be said that the Crown at that time was using the drain to drain the land afterwards sold to Howitt.] user. The fact that water flowed down the drain is not evidence of land is enjoyed or used. (r) [1888] 13 App. Cas. 227. (u) [1098] 6 Rep. 6A. (v) [1884] 10 V.L.R. (L.) 233. F.C. 1898 HOWITT V. FITZGERALD. |