F.C. 1899 Re CHEYNE AND THE SHIRE OF EAST LODDON. A' Beckett, J. council on acceding to the petition may obtain a loan from the Governor-in-Council for the requisite materials which, when obtained, are supplied to the owners of land in this area, called a special area, with a notice specifying the fencing to be done under certain penalties. Then sec. 57 provides that two adjoining owners may, with the sanction of the council, enclose their properties as one; sec. 58, that an owner of land intersected by roads may, with the like sanction, enclose the roads with gates; and sec. 59, that adjoining owners may in like manner enclose roads crossing their property. Sec. 58 says:-" Any owner of land intersected with roads with the sanction of the shire council instead of having dividing fences between such land may enclose at his own expense the whole of such land with a continuous wire netting or other rabbit-proof or vermin-proof fence having when enclosing any road swing gates covered with wire netting." This section comes between two each of which qualifies the obligation imposed by the Act on an Owner within a special area. Although this obligation is not specifically defined, looking to the object of the Act, and to the preceding sec. 49, it appears to be an obligation to enclose his land with a rabbit-proof fence. Sec. 58 is an almost necessary complement to the other sections, and its position amongst them suggests that it was only intended to relate to an owner subject to the Act. But it is contended that inasmuch as sec. 57 contains the words "if within a special area" and sec. 59 the words "under this part of the Act," and no such words are to be found in sec. 58, sec. 58 is not confined like the others to land within a special area, but should be read as of general application to any owner of any land in any shire, or at all events in any shire which is in fact infested by rabbits. Although there are no words limiting the operation of sec. 58 it contains words which have no meaning unless applied to land within a special area. It says the owner of land intersected with roads "instead of having dividing fences between such land" may, with the sanction of the shire, enclose the whole of his land. The words "instead of, &c.," which are used in a similar connection in the preceding section appear to us to assume the existence of an obligation to have dividing fences, and this obligation only exists in the case of land within a special area. We should be extending the section beyond its manifest intention if we held it to apply to land not within a special area. In restricting its operation to land within such an area we are not speculating as to probable intention gathered from the position of the section in the enactment, and the purpose which it serves in completing the scheme of the Act. We are guided by the presence of words in the section itself showing that the privilege is conferred as an exemption from an obligation, and therefore was not intended for those to whom the obligation did not attach. Upon this construction of the section we hold that the obstructions in the second class have been put up without any valid authority, the council having no power to give the sanction they purported to give, and the mandamus must go as to these obstructions, which seem to have caused substantial inconvenience to the applicant and others. We do not anticipate that there will be any difficulty in drawing up the order in such a way as to particularize these obstructions and exclude the others. As to these others, which have subsisted since 1884, the primary Judge stated that he was not satisfied with the bond fides of the relator, and thought that his only real cause of complaint was as to the gates put up under the Vermin Act. From the correspondence and the evidence before him he concluded that the other long-standing obstructions inconvenienced no one. The witness Mahoney, who has been described as the ruling spirit in the matter, says :-"The farmers do not object to the old gates or obstructions, but they object to the vermin destruction gates "-i.e., to those recently erected. We agree with the learned Judge in thinking that the complaint as to the ancient obstructions was thrown in as a make-weight to save costs perhaps, in the event of the case failing as to the new obstructions. It appears from the affidavits that the removal of the old obstructions would injure not only the owners and tenants of the lands which they protect from rabbits, but adjoining owners who have been protected by the system of enclosure which the removal of these obstructions would break up. We think that no one was hurt by these old obstructions, and that but for the new gates no one would have complained 1899 Re CHEYNE AND THE SHIRE OF A'Beckett, J. of them. We should not weigh the disadvantages to one section of ratepayers by having the roads open against the disadvantages to another section of having them closed, if we considered that the closing was really injurious to anyone who came forward in good EAST LODDON faith to complain. But in affording a discretionary remedy we are not prepared to hold that a ratepayer has merely to show that roads are closed to obtain as of course a mandamus to open them without any regard to their use to himself or to the injury which throwing them open would cause to others. We therefore refuse the mandamus as to the obstructions of the first class on the present application, influenced by the consideration that the refusal is not final, and would be no bar to an application by a person really aggrieved, should there be any such person, now or hereafter. As to costs, although the point on which we allow the appeal was not argued before the primary Judge it is noticed in the applicant's affidavit, and we are not disposed to deprive him of costs because his counsel only argued it at the later stage. The applicant did not enter into litigation with the shire precipitately, but offered to have a case stated on the admitted facts. In the main he has succeeded, and should receive his costs of the original application and of the appeal. Our judgment will probably make it unnecessary to incur further costs by taking out the writ. Appeal allowed. Order absolute directing mandamus to issue one month from this date as to the obstructions to roads erected under the permission given under the Vermin Destruction Act, but not as to any other obstruction. Refer to tax costs of application and of appeal up to and including this order, such costs to be paid by the shire. Reserve future costs, if any. Liberty to apply. Solicitors for the relator: Quick & Highett. Solicitors for the Council of the shire of East Loddon: Tatchell, Connelly & Dunlop. Solicitors for trustees: Whiting & Aitken. A. F. M. HAUGHTON v. HOCKINGS. Local Government Act 1890 (No. 1112), s. 429-Interference with creek-Mining on creek-Mining under Crown lease-Question of title-Ouster of jurisdiction of court of petty sessions. Defendant was informed against under sec. 429 of the Local Government Act 1890 for unlawfully interfering with a certain creek, which had been permanently reserved for public purposes, without the consent of the shire council. The defendant's interference consisted in conducting mining operations on the creek as the holder of a mining lease from the Crown of land comprising the creek. On complaint by information before the court of petty sessions the magistrate held that no question of title was involved, and that he had jurisdiction to hear the case, and he fined the defendant. Held, that a complicated and difficult question of title was involved, and the jurisdiction of the magistrate was therefore ousted. Reg. v. Mayor, etc., of Walhalla (4 V.L.R. (L.) 470) explained and distinguished. ORDER TO REVIEW referred to the Full Court by Hood, J. The informant in this case was one William Haughton, secretary of the shire of Walhalla, who proceeded against the defendant under sec. 429 of the Local Government Act 1890 for unlawfully interfering with a certain creek under the control of the council of the shire of Walhalla without its consent. It appeared from the evidence that the creek in question had been permanently reserved for public purposes, and that the defendant was authorized to mine in land comprising the bed of the creek, and did so by shovelling sand and otherwise conducting mining operations therein. The defendant's authority was from the Walhalla Tailings and Sluicing Company, who were the holders of a mining lease from the Crown of the land comprising the creek. The information was heard before the Court of Petty Sessions at Walhalla, and the police magistrate presiding decided as a fact that the mining work done by the defendant was an interference with the creek, and that an objection raised as to his jurisdiction on the ground that a question of title was involved was untenable, and convicted the defendant. The defendant then obtained an order to review upon the ground (so far as is material)" that the police magistrate had no 'jurisdiction to convict, as a question of title was involved." This order was referred to the Full Court. F.C. 1899 April 28. F.C. 1899 HAUGHTON v. HOCKINGS. Cussen for the informant to show cause-No question of title is involved. Counsel referred to Koh-i-noor Mining Co. v. Drought (a); Reg. v. Foster, exparte Molyneux (b); Reg. v. Mayor, etc., of Walhalla (c). Finlayson for the defendant to move the rule absolute-In Reg. v. Mayor, etc., of Walhalla there was the case of a title impossible in law. Hudson v. MacRae (d) gives the meaning of ouster of justices' jurisdiction. Counsel referred to Parade Gold Mining Co. v. Royal Harry Gold Mining Co. (e); Sims v. Demamiel (f); Mines Act 1890, secs. 5, 14, 15, 49; Mines Act 1897 (No. 1514), sec. 11. (Counsel was stopped by the Court.) WILLIAMS, J., delivered the judgment of the Court [WILLIAMS, A’BECKETT, and HODGES, JJ.] We are of opinion that a difficult and complicated question of title was raised by this case, and that it was raised bond fide, and that accordingly the jurisdiction of the police magistrate was ousted. The only thing necessary for us to do at present is to refer to the case of Reg. v. Mayor, etc., of Walhalla (g), because that case presented to us the only difficulty we felt in coming to a conclusion in favour of the applicant for the order to review in the present case, and that case was apparently an authority the other way. found that the facts of that case differ from this one. There the person who raised a claim of title did so under a miner's right and registered claim, and by virtue of this title he interfered with a creek which the evidence showed had been reserved for road purposes, and which creek had been taken under the charge of the council of the municipality. The Court decided that there was no question of title involved, and discharged the rule to quash the conviction of the justices. The reason for the decision of the Court was that this creek was in But it will be [1876] 2 V.L.R. (L.) 214, J., at p. 640. |