Act not to (d.) LANDS EXCEPTED FROM THE OPERATION OF SEC. 5 OF THE (1.) Those belonging to the hereditary possessions of the Crown or 1842, sec. 39. Nothing contained in the Act shall vest in the principal Defence Act, vest property officers of Her Majesty's Ordnance in any manner or for any belonging to Her Majesty purpose whatsoever, any messuages, buildings, castles, forts, in the Officers lines, or other fortifications, manors, lands, tenements, or here of the Ordnance; and p. 17, post. ditaments,1 part or parcel of the hereditary possessions and land 1 The property managed and held formerly by the late Ordnance Board and now by the War Department consists of two classes-first, that which was part of the hereditary revenues or acquired by the Crown with public money prior to its specific appropriation to the "public" service in William and Mary's reign; and secondly, that acquired after such appropriation. In the first class the beneficial interest is in the Office of Woods, and in the second in the Exchequer whenever the property, being no longer needed by the Department, is sold (vol. i., p. 9). An instance of this arose in 1856, when the Hull Citadel was abandoned by the War Department as a work of defence and handed over to the Office of Woods to be sold for Her Majesty. Each of these sections are framed in different language, and they were probably inserted having regard to the discussion which had arisen in the Court of Exchequer in "Doe and Legh v. Roe," 8 Mee. and Wel., 582. As to the adoption of legal proceedings in reference thereto, see Note on sec. 34, p. 37, post. fence Act, (2.) Lands in charge of the Office of Woods.' Nothing contained in the Act shall repeal, alter, or affect Nothing in 12, sec. 40. the Acts passed in the 10 Geo. IV. (cap. 50) or 2 and 3 Will. IV. this Act to (cap. 1), or any of the clauses or provisions in the said Acts 10 Geo. IV., respectively contained." , p. 25. 1 On the 1st January 1867 all the foreshore then belonging to the Crown was transferred to the Board of Trade, except the foreshore in front of or immediately adjacent to any lands whereof or whereto Her Majesty, or any person in trust for her, was seized, or which lands were the property of the War Department, or in its & 30 Vict., possession. Therefore, whenever the Department needs an acquisition of foreshore 5. 62, sec. in front or adjacent to Crown lands, such must be made from the Office of Woods by purchase and conveyance. Where the shore lies opposite to War Department land acquired from private owners the question may be-assuming the shore to be vested in such owner when the land was conveyed-whether the shore and its accretions belong to the Department or to the private owner. "It appears (wrote Mr. Ramadge) "to be a general rule, or rather custom, that the owner of land bounded by the sea is entitled to the gradual and from time to time imperceptible increments, if any thereto by way of alluvion from the sea (see 'Rex. v. Yarborough,' 3 B. & A., 91; Gifford v. Yarborough,' 5 Bing., 163; Attorney-General v. Chambers,' 4 De G. & J., 55); but it is not clear that this custom always applies to a case where the land and the shore thereof originally belonged to one owner who has granted away merely a definite part of the land up to but not including the shore (see Todd v. Dunlop,' 2 Robinson's Scotch Appeals, 232, and Smart v. Dundee,' 8 Bro. P. C., Tomlin's Edit. 1803, p. 199, referred to in the note to p. 111, of Hall on the Seashore,' by Loveland, Edit. 1875); and it would appear from Lord Hale's Treatise De Jure Maris,' Hargrave's Edit., p. 28, that this custom should only obtain where the increment is from time to time so insensible and indiscernible by any limits or marks that it cannot be known,' and that it does not or should not obtain in a case where by any marks or measures it can be known what is so gained,' and from the Lord Chancellor's judgment in the before-mentioned case of Attorney-General v. Chambers,' it would appear that this was his opinion. Accordingly it does not appear to me that the custom can apply to a case where the owner of land and the shore thereof grants away a definitely marked out plot of ground, either consisting wholly of land or partly of land and partly of shore. In such a case, if the plot does not actually come up to the shore, there can be no incremeut by way of alluvion thereto, and if it is counterminuous with or includes part of the shore, it appears to me that the grantee must still be confined to his marked-out plot of ground, and cannot, as against his grantor, claim any alluvion outside his plot. "And here I may mention, that the shore properly so called and as distinguished from the ordinarily dry land must be taken as commencing with the line of medium high tides, between the springs and ncaps (see the case of 'Attorney-General v. Chambers,' in 4 De G. M. & G., p. 206." 2 Wherever the Department owns a sea frontage or a wall upon it the rearward landowners are too ready to press upon its officers their duty, and upon the public, as represented by them, the obligation to uphold the sea wall or frontage to protect the rearward lands from the inundation of the sea. As a general rule, no such legal obligation, which can only be upheld by statute or prescription, exists against the Department. This subject recently came under the consideration of the Court of Queen's Bench, in the case of "Hudson v. Tabor," 1 Queen's Bench Division, p. 225, when the Lord Chief Justice Cockburn explained the law:-"The grounds on which the liability of the defendant is sought to be established are, first, prescription; second, the alleged liability at common law of every owner of land fronting the sea, or any estuary or creek liable to be flooded by the sea, to maintain a sea-wall for the purpose of keeping out the sea water from the adjoining lands. That an owner of land fronting the sca may be bound by prescription to maintain a bank or wall to keep out the sea water for the protection of the owner of the adjoining land, is abundantly shown by the authorities. But whether such a prescriptive obligation exists on the part of the frontager to maintain the sea-wall for the protection of the adjoining owners as is here contended for must, of course, depend on the evidence adduced in the cause; and we are called upon to say whether there is sufficient evidence to warrant the finding this issue for the plaintiff. Now the evidence amounts to no more than this, namely, that each frontager has repeal or alter cap. 50, or cap. 1. Act not to vest any property belonging to the Prince of Wales in the (3.) Lands belonging to the Duchy of Cornwall. Nothing in the Act shall vest in the principal officers of Her Defence Act, Majesty's Ordnance for the time being any estate or interest in 1842, sec. 41. always maintained the wall in front of his own land, while no one has thought it necessary to protect himself against the possible consequences of the neighbours' Officers of the neglect, by erecting a bank or wall to keep out the water which might come to him from the neighbours' land, if the latter neglected to maintain the wall and his land became flooded in consequence. Ordnance. "In our opinion this evidence, when taken in connection with the fact that what each owner has done has been no more than was necessary for his own protection, or than what he would have done along the whole of the shore had he been the owner of the whole of the land fronting the water in question, is insufficient to support the alleged prescription. The case is manifestly very different from what it would have been if the wall maintained by the defendant had been on the plaintiff's land instead of his own. The fact that something which a man does for his own benefit may incidentally benefit his neighbours is not, we think, sufficient to warrant the inference that he has bound himself to continue to do the thing in question, so as to render him liable in damages if he omits to do it. In the absence of all other evidence of liability, it appears to us more reasonable to refer what has been done to a regard to the proprietor's own interest than to any obligation he has taken upon himself towards another. Nor will the length of time during which the given state of things may have continued add anything to the force of the reasoning. The motive for maintaining the wall remaining the same throughout, will equally account for the fact and rebut the presumption of prescriptive liability which might otherwise arise. It is said, indeed, that as it was for the common benefit of all that each owner should make good and maintain the wall fronting his own land, that so the water might be kept out from the lands of all, it is reasonable to infer that from early times an arrangement had been come to by all that each man should make and maintain his wall for the common benefit of all; and that out of this compact, acted upon and matured by time, the prescription in question has arisen. But the assumption here made, though it might well explain the prescription if there were any evidence of the latter, is altogether speculative, and, it is further to be observed, assumes the existence of the prescription of which the proof appears to us to fail. If, indeed, there was any evidence of the claim of one owner to have the wall of another kept up for his benefit having been asserted adversely, and of such claim having been acquiesced in and submitted to, the case would be different. But no such evidence was offered. And though it is true that each owner has always had the benefit resulting from the wall of his neighbours, the presumption of an easement having been acquired, which otherwise might thence arise, becomes neutralized by the opposite presumption that the wall, which was absolutely essential to the safety of the owner maintaining it, was kept up by the latter with a view to his own immediate interest alone. "Nor does it appear to us that the omission of the frontage owners to adopt measures to protect themselves against the possible consequences of the neglect of their neighbours to keep up their walls adds materially to the strength of the argument in favour of prescription, the probability being that each owner has naturally relied on his neighbours doing that which their own interest, and a regard to the safety of their own property, obviously required. Under these circumstances it appears to us that the facts do not warrant the inference of a prescriptive obligation to keep up the wall for the benefit of the adjoining occupiers. "But it is said that independently of prescription every owner of land fronting Having examined the early cases cited as authority for this Common Law any messuages, buildings, castles, forts, lines, or other fortifications, manors, lands, tenements, and hereditaments belonging to His Royal Highness Albert Edward, Prince of Wales and Duke of Cornwall, or other the personage who may hereafter for the time being be entitled to the revenues of the Duchy of Cornwall in right or in respect of the said Luchy, other than or different from the estate and interest under or by virtue of which the principal officers for the time being of Her Majesty's Ordnance held the same at the time of the passing of the Act, and that nothing in the Act contained shall affect, alter, prejudice, or derogate from the estate, right, title, interests, privileges, or authority of His said Royal Highness, or other the personage who may for the time being be entitled to the revenues of the Duchy of Cornwall in right or in respect of the said Duchy, or the possessions thereof, nor at any time be admitted in any Court of Law or Equity, or otherwise construed, to alter or affect in any manner the tenure upon which any such messuages, buildings, castles, forts, lines, or other fortifications, manors, lands, tenements, and hereditaments, were previously to the passing of the Act held or set apart for or placed under the charge of any person or persons acting under the authority of or in trust for Her Majesty or of Her Royal Predecessors, for the use and service of the Ordnance or late Barrack Department, or for the defence or security of the realm, nor to alter or affect in any manner whatever such estate, right, title, interest, or authority of His said Royal Highness or other the personage aforesaid in right or in respect of His or Her said Duchy of Cornwall, or the possessions thereof. whom the land fronting the sea belonged, but all who derived benefit from the work. The forms of such commissions are to be found in Fitzh. Nat. Brev., p. 113. "The statutes relating to sewers, aud authorizing the issuing of such commissions, beginning with 6 Henry 6, cap. 5, were, in fact, only confirmatory of the common law, except in so far as they enlarged the powers of the commissioners who were empowered by them to order the construction of new works as well as the repairs of ancient ones. Under these commissions every one is to contribute who may receive benefit or suffer loss-obviously a very different thing from throwing the who'e burden on the frontager, and making him liable for all the damage that may result from his omission to keep up the sea-wall. "The equitable principle on which the assessment under such a commission's based is in itself a strong argument against the position that the frontager is liable at common law. He may have only a narrow slip of land of comparatively little value, while behind him may be a proprictor having much more land of greater value lying on the same or a lower level, and liable to be overflowed if the sea-wall is imperfect. It is obvious that the last owner ought, to some extent at least, to bear his share of the cost of maintaining the defences against the sea. "We think, therefore, that the fact, that the owner of land fronting the sca might be made liable under a commission issued by virtue of the king's prerogative, by no means tends to show that independently of a royal commission such liability existed at common law, and we see nothing to warrant our holding it to exist. The proper remedy in such a case as this is to procure the issuing of a commission in which by an equitable adjustment the interests of all parties may be secured. Our judgment will therefore be for the defendant." This judgment was supported on Appeal to the Court of Error (see 2 Queen's Bench Division, p. 290). See also Attorney General v. Tomline, 19th May 1879, Mr. Justice Fry's judgment. Lands to be hereafter be vested in the same manner. 2. As to the Acquisition, &c., of Lands and Works. (a.) TO BE VESTED IN THE PRINCIPAL SECRETARY. and Ordnance That from and after the setting apart or placing under Defence Act, taken, &c. to charge or purchase and conveyance, grant or demise thereof, 1842, sec. 6; All messuages, buildings, castles, forts, lines, or other Board Transfortifications, manors, lands, tenements, and hereditaments, fer Act, 1855, which shall at any time or times hereafter be set apart for the sec. 5. use and service or placed under the charge of the Ordnance or late Barrack Department, or which shall be hereafter set apart for or placed under the charge of any person or persons acting under the authority of or in trust for Her Majesty or Her royal predecessors, for the use and service of the said departments, or for military defences, or which shall be herc after held, used, or occupied, or purchased, vested, or taken by or in the name of or by any person or persons in trust for Her Majesty or Her royal predecessors, or Her or their heirs or successors, for the use and service of the said departments, or for the defence and security of the realm, and all erections and buildings which shall then or which may thereafter be erected and built thereon with the rights, members, easements, and appurtenances to the same respectively belonging. Such Secre tary of State to be des cribed in conveyances, Shall be and become and remain and continue vested in Her Majesty's Principal Secretary of State for the War Department for the time being, and his successors in the said office, according to the nature and quality of and the respective estates and interests in such messuages, buildings, castles, forts, lines, or other fortifications, manors, lands, tenements, and hereditaments, In trust for Her Majesty, Her heirs and successors, for the service of the said Ordnance Department, or for such other public service or services as Her said Majesty, Her heirs or successors, shall from time to time, by any Order in Council, be pleased to direct. (b.) AS TO CONTRACTS AND CONVEYANCES. sec. 5. In every contract, conveyance, surrender, lease, or other Ordnance assurance of any lands, hereditaments, estates, or property, Board Trans. with, unto, or by the Principal Secretary of State for the time fer Act, 1855. being, and in every other deed or instrument relating to any &c. as Her lands, hereditaments, estates, or property, or in anywise to the Majesty's public service, to which the Principal Secretary of State for the Principal Secretary of time being shall be or shall be intended to be a party, it shall State for the be sufficient to call or describe him by the style or title of "Her War Depart- Majesty's Principal Secretary of State for the War Department,” without naming him; and every such contract, conveyance, surrender, lease, assurance, deed, or instrument may be executed by such Principal Secretary of State, or by any other of Her Majesty's Principal Secretaries of State for the time being, by signing his name thereto, and if the instrument so executed be ment. |