Mary Lord v. The Commissioners for the City of Sydney (United Kingdom)

LORD o, SYDNEY ~ ~ o M ~ ~ ~ s ~ ~ o ~ ~ R s FOR CITY OF) [I8591 XII IOORE, 47%

lants was more than the sum prescr~bed by the Order in Council, and that the

Sudder Court proceeded upon an erro~~eous ground, taking the value by the stamp

required by Reg. X. of 1829, which they submitted was only for fiscal purposes, and

also that the Sudder Court was wrong in not, adding the mesne profits; and the

Petitioners further submitted that the words ‘‘ the value of the matter in dispute

in any such appeal to Her Majesty in Council” related t o the whole matter in-

volved in the suit which wa3 the subject of judicial inquiry in the Court below.

That the right of possession of the Respondent in re-spect of his ancestral Zemindary

was one of many questions in the suit and appeal, and that the sum of Rs. 14,325.

1. 3., the estimated value of the Zemindary as stated in the plaint, and not merely a

propor-[4~~]~t~onate part thereof, ought to have been adopted by the Court in

est~mating the appealable value.

This petition was heard e;7: parte.

Mr. K. Palmer, Q.C., and Mr. Leith, in support of the petition, urged the same

The Right Eon, Dr. ~ u s h ~ i ~ ~ o n . - ~ a ~ e to sppeal will be granted, subject, hot\--

ever, to this reservation, that i f the facts contained in the petition are not correct,

the petition i s to be dismissed. Security for B O O i o be lodged with the ~ ~ ~ i s t r a i .

of the Privy Council within six months froui the date of their Lordships’ report.

[Mews’ Dig. tit. COLONY ; 111. APPEALS TO PRIVY COUNCIL ; 2. Bppealable value.

grounds as those contained in the petition.

[$73] ON APPEAL FROM TEE S ~ P ~ ~ ~ E COUET O F XEW SOU223 WALES,

NARY L O R ~ , - ~ ~ z ~ Z ~ ~ ~ ~ ; THE ~ O ~ I S S I ~ ~ ~ R S FOR TEE CITY OF S ~ ~ ~ ~ S ,

- ~ e ~ ~ ~ ~ ~ ~ ~ e ~ t ~ [Feb. 7, 18591.

A right to the use of flowing water does not necessarily depend upori tlze o ~ ~ ~ e ~ s ~ i i ~ ~

of the soil covered by such water.

In 1810, the Crown made a grant to ft. of 135 acres of Iand in Kew South Wales,

described as bounded on the west by N. farm, on the north by an east, line of

thirty chains, on the east by a south line to a small creek, and on the south

by that creek and the water of Botany Bay a t the mouth of Cook’s river. I t

was not necessary to include any portion of the creek to make up the quantity

of land specified in tlie grant. In 1823, the Crown made a ~ r a i ~ t of 600

acres of land higher up the creek, to L., in nrhich the Iaiid was described as

hounded on the north-Kest by a line from the south-east corner of R.’s farm

to the south-we~t corner of W,”cj farnx; on the north-east by W.’s farm, on the

south-east by a line bearing west, south to Botany Bay a creek and R.’s farnr.

This grant contained a reserva~~on, that the Crown was to be entitled to

(‘ any quantity of water and any quautity of land, not exceeding ten acres,

in any part of the said grant, as might be required for public purposes.”

I*. afte~.wards became owner of *he Iand c o ~ ~ r i s e d in the grant to R. The

water of the creek was used for turiiiiig a rnifl erected on R.’s land, arid f o r

other beneficial purposes.

On resumption by the Crown, under the powers of an Act of Council of Ken.

South Wales, 17th Vict., NO. 35, of a ~ o r t ~ o ~ of such lands, and diversion af

the stream flowing in the creek-Held : -

First. That the grant by the Crown in 1810, to R., of land bounded by the creek,

passed the soil of the creek ad ? ~ e ~ ~ i ~ r ~ filum aqzlue, as the description of

boundaries in the grant did not exclude from it that portion of tile creek,

* Present : The Right Eon. Lord ~ i n ~ s d o w i ~ , the Right Eon. Dr. LushingtoI~~

the Right Eon. The Lord Justice ~ n ~ ~ h t Bruce, the Right Ron. Sir Edward Ryan,

and the Right Eon. Sir John Taylor Coleridge.

991

- __I_-- ~ I -II-_ - - ~ I _ _ _ _ - - _-I_- _____-- 11”11 ---__-

ILII ~OORE, 676 LORD P. SYDNEY ~ ~ O ~ ~ ~ r I S S l O ~ ~ R S FOR CITY OF) 1118593

which by the general presuniptioxi of law, would go along with the ownership

of the land on the banks of it, [I2 MOO. P.C. 4981.

Second. That the right to the use of the flowing water of the creek in respect of

the land ‘Itelow, o r i ~ i n a ~ y granted to R,, was not lost by the acceptance of

L. of the land above, although in the latter grant the Crown had reserved

tile right to take the water, the only effect of the reservation being that 2.

waived his own rights as riparian owner to the use of the water as it flowed

past his land [ l a Moo. P.C. 499, 5001.

In construing grants, the words used must be taken in the sense which the conk-

riion usage of mankind has applied to them as well in reference to the context

in which they are found, as the circumsta,nces in which they are used [12 MOO.

P.C. 4971.

This rule of construction equally applies, whether the subj~t-matter be a grant

from the Crown or a subject [12 HOO. P.C. 4971.

This was an action brought by tehe Appellant against the Respondents, to recover

cwnpensation in E4741 respect of certain lands and tenements of the Appellallt

resumed by the ~ r o w n , and taken and used by the ~espondents, the ~ o ~ r ~ ~ ~ i s s i o n e r s

of the City of Sydney, under the powers of an Act of the Council of New South Wales,

l?th TTict., No. 35, entitled I‘ The Sydney Water Act of 1853.” The legality of the

resu~~iptioii was not at issue, the only question raised by the appeal being the right

of the Appellant to compensation by reason of the Respondents subtracting the

water of a creek above the Appellant’s lands, which diminished the quantity of

water below, which water the Appellant claimed to have the undisturb~d use of.

By tlie above Act, it was (among other things) enacted, that tlie Respondents

sliould be ~omrn~ssioners for the purpose of providing a ple~itif~il supply of pure?

and wholcsorne water for the City of Sydney and the suburbs thereof, and for the

shipping in the port of Sydney, and for carrying into effect the whole of the pui.-

poses of the Act : and that it &ould l ~ o lawful for the Governor of New South Wales,

bs and with the advice of the Executive Council, if the Governor and Executive

Council should think fit so to do, at any time, and from time to time, in the name of

Her [47Fi) Majesty, to resume and take into Her ~ ~ a ~ e s t y ‘ s hands either the whole or

such parts of the watercourse or streain therein mentioned, with its tributaries and

amuents, and also such parts of the alienated lands adjacent thereto, as he and they

should think it expedient to resume, for the purpose of carrying the Act and the objects

thereof fully into effect ; and upon any such resumption being notified by order of the

Governor, in the New South Wales Government Gazette, the watercourse and stream,

with its tributaries and affluents, or such part OY’ parts thereof as should be notified

as having been so resumed, and also all such parts of the adjacent Iarids as should

be notified as having been resumed, slxould i ~ ~ r n e d i a ~ e ~ ~ , and w i t ~ o u ~ any deed or

i x ~ ~ t r u ~ e n t of eoI~veyance os surrender thereof, become- and be vested in Her.

Majesty, Her heirs and successors, for the uses of the Government of the Colony of

Netv South Wales. And the Co~~i i ss ioners were thereby authorized and empowered

for the supply of water to the City, suburbs, and shipping, to divert, take, and use,

not only the waters arising from or flowing through the lands in the possessiotz of

the CTrorrn, then known as the “ Sydney water reserve,” but also the waters arising

froin or Bowing into or from the stream or watercourse extending from the reserve

to the shore of Botany Bay, and all the tributaries and affluents of the stream or

~~,atercourse, and all swamps, n~orasses, or other sources of water in the n e i ~ ~ ~ b 0 7 ~ r -

hood of tlie stream or watercourse, and its tributaries and affluents, or SO much

tliereof as n~ight, from time to time, be necessary fo r the purpose. And it was

provided that a11 persons whose lands should have been so resumed f476] and takett

into Her Majesty’s hands, or whose lands might have been taken, used, or pre-

judiced by the Carnmissioners, under any of the provisions therein contained, or

nho should h a w sustained any loss or damage whatever in or by the e ~ e c u t i o ~ ~ f

the Act, should be entitled to reasonable compensation for the loss or izljury

sust aincd by themi, and such c o ~ p e ~ s a t i o n should be ascertained, assessed, or

awarded, as therein mentioned, and that in fixing the amount of su& colnpensation,

seference should be had to any reservation contained in the grants by which the

tatids of the parties claiming such compensation were alienated by the Crown. B~ the 16th. section it was further provided that in all cases in which c o ~ i i ~ ~ e ~ ~ s a t i o n was

992

LORD ‘U. SYDNEY ( C ~ ~ ~ ~ I S ~ ~ O ~ ~ ~ S FOR CITY OF) 118591 XU ~ O O ~ E , 477

claimed, in case the ~onimiss~oners and claixnant should not agree, the a ! ~ ~ o u i ~ t to

be paid should be d e t e ~ ~ n e d in the Supreme Court, by an action for damages, to

be brought by the claimant agairist the ~ o ~ r ~ i s s ~ o n e r s , or upon an issue agreed

to by the elainicut an

The lands in ~uest ion were c ~ ~ p r i s e d in a grant by Mr, ~ a c q u a r ~ e , the ihen

~~overnor-in”Chief o New South ~ a l e s , dated the 1st of Januai*y, 1810, io ~ d ~ ~ ~ a ~ ~ d

~edniond, his heirs and asRigns, under the description of all those ‘‘ 135 acres of

land, lying and situate in the District of Sydney, bounded on the west sido by Mary

Lewin’s Newcastle farm, bearing north thirty-seven chains, 01% the north side by an

east line of thirty chains, on the east side by a south line Lo a ~ r ~ i a ~ l creek, and on

the south side by that creek and the water of ~ o t a n y Bay a t 11ie mouth of Cook%

Eiver, a road of one chain reserved on the west side, to be known by the name of

John’s Town, cond~t~oned not io sell or alienate the same for the space of [a771 five

years from the date hereof, and io cultivate twenty acres within the said period, and

reserving to ~ o v e r ~ ~ ~ e n t the right of making a public road ~ h r o u g ~ the sanw, nvd

also reserving, for the use of the Crown, such timber as may be deemed fit. for nasul

~~ur~oses . ”

The creak r~ie~~tioned in the grant was an un~av~gabIe stream of fresh warc~’

which flowed into Botany Bay. R ~ ~ o n d entered into ~ o s ~ e ~ s i o n , and af te r~va~d

sold the lands, the subject of his grant, io one Simeon Lord. P o ~ s e ~ a ~ o i ~ was iakeu

by Lord, but the lands were not conveyed to him until after the date of the grant

by the Crown ~ ~ e r e ~ f t e r n~ei~t~oned.

0x1 the 27th of May, 1823, the then Goveriior-in-~~ef of New South Wales

granted unto Siraeon Lord, his heirs and assigns, “ AI1 those 600 acres of land

&uat,e, lying, and k i n g in the ~ o u n t ~ of Cu~ber l and and ~ i s ~ ~ ~ c t of Sydiiey,

bounde~ on the no r th“we~ side by a line from the south-east corner of ~ e d n ~ u n d

~ohnston~s farm, to the s o u ~ ~ ~ e s t corner of ~ i n d e ~ ’ s farm, on the norih-east by

~ ~ i n d e r ’ s farnz, bearing east 404 degrees south, 67 chains on the sout~-east by a

line bearing west, 25 degrees south to Botany Bay, and on the south-west and weat

sides thereof by Botany Bay, a creek, and R e d ~ n d ’ s farm, saving and reserving

to His ~ a j e s t y , his heirs and successors, suck timber as might be growing or to

grow thereafter upon the said land which might be deemed fit for naval purposes,

atso such parts of the said land as were then or should t~ereaf ter be required by the

proper officer of Eis ~a jes ty’s ~ v e r ~ n i e ~ ; t for a h i ~ h ~ a ~ OF h ~ g ~ w a y s ; and further,

any ~ u a r ~ t i t y of water and any ~ u a n t ~ t ~ of land no% exceeding ten acres of land, in

any part of the said graui, as ~ i ~ ~ ~ ~ i t [4?83 he required for public purposes: Pro-

vided always, that such water or land so required should not interfere with, or in

a,ny manner injure or prevent, the due working of the water-mills erected or to he

erected on the lands and ~Tatercourses thereby granted; and to ~ ~ i ~ l d , w i t h i i t the

term of five years, a w ~ t e ~ - i ~ ~ i ~ l of a 12-horse power. To have and to hold the land

to Siriieon h r d , his heirs and assigns for ever.”

After Sitneon h r d had taken. possess~on of this grant from the Grown, nnd also

of ~ e d i n o i ~ d ’ ~ land, he h i l i a flour mill, with an undershot ~ ~ a t e r - ~ ~ l ~ e e l , at the

Routh end of Red~kion~s grant, the wate~.~power being derived from the creek, a

part of which creek was the bour~dary, on the south side, of ~ e d n ~ o i ~ d ’ s grant. Sinieon

h r d by his Will devised the lands eon.tained in Red~nond’s grantr io his widow, the

A ~ ~ e l ~ a ~ t , and his other land, being his own grant from the ~ro~yx3, to his 8011,

Edward Lord.

On the 16th of July, 1855, Sir Senry Young, the then Governor of New South

Wales~ with the advice of the Exeoutive & m c i l of the Colony, arid under the

authority given Lo hini by the above-mentioned Act, 17th Qict., resumed a.nd took

into Her Majesty’s hands part of the lands belonging to Mary Lord, the subject of

the original grant of the 1st of January, 1810. We also resumed on behalf of Her

Majesty cert.aiii lands b e ~ o ~ ~ i n ~ to ~ d w a r d Lord, for^^^^ partp of the grant to

Simeon Lord, which adjoined the Appe~lant’s lands and were bo~nded by the saxlie

creek, but situated higher up its course. The C o ~ ~ ~ s s i o n e r s fo the City of Sydliey

(the ~ e s p o n d e n ~ ~ , ap~ropriated the water of the creek for the purposes of the

Act, and by diverting the waier as it Bowed by ~ d w a r d Lord’s lands, ~ ~ ~ a t e r i a l ~ y

E4791 diminished the quantity~ w i t ~ d r a w i ~ g the supply by which the mill was

worked7 and the stream in genera1, which was used for woolwash~ng and other

P.C. III. 993 32

~ o ~ ~ s s ~ o n e r s respect iveiy.

*

=I XOORE, w LORD v. SYDNEY ( C O ~ ~ ~ I ~ S ~ O N ~ R S F R CITY OF) ClS591

purposes besides that of t ~ i r n i ~ i g the mill. No question was raised as to the necessity

or formality of the resumption of the lands, the dispute being as to the rigtlt to

eo~Ipensation for taking the water.

In accordance with the provisions of the Act, the Appellant brougllt an action

against, the ~ s p o n d e n t s , in the S ~ p r e ~ ~ e Court of New South Wales, for danrages

sustained by the taking and resuming of the lands in question and subtracting the

water. The aotion was tried by a speuial jury. At the trial, evidence was given

of the value of the property resumed. By the Judge’s direction the jury made

several assess~ents. For conlpensatior~ for the loss of her land the sun1 of 34860;

for the buildings and machinery, $3600 ; for so much water and use of macbiiiery

a s would be left to the Appellant’s Iand, after the ~ o m ~ i s s i o n e r s had taken away

Edward Lord’s property, ~ 3 0 0 0 ; and for the water and use of i n a c h ~ n e r ~ lost by

taking away water from Edward Lord‘s land, the jury awarded $7200 conditionally.

The jury found a verdict for the Appel~ant on all t‘he issues, and assessed the d a ~ a g e ~

at ~ ~ 1 , ~ 6 0 ; with the reservation, that if $he Court should be of opinion that the

A p ~ e ~ l a ~ t was entitled to the ui~disturbed use of the water in the creek n ~ e n t ~ o ~ ~ e d

in Redmond’s grant, on the Jands and hereditmnents taken and used by the Re-

spondents, for other purposes than its use as a motive power, then and in such

case the jurora contingent~y assessed tbe damages of the Appellant, over and above

her costs, a t 61~,660, being &7200 in addition to the fore-i~lent~oned damages

of 611,460.

14801 The Appellant afterwards moved the Supreme Court for leave to increase

the darnages by the sum so contingently assessed, t o 218,660, upon the ground that

&e was entitled to the u K ~ d ~ s t u r ~ d use of the water in the creek ~ ~ i e n ~ i ~ i ~ e d in

Redniond’s grant. The sum of &11,460 found for the Appellai~t i iduded the sum

of ~ ~ 3 0 0 0 awarded as conipeiisat~o~ for the loss of the motive power aforesaid. A

CIWS motion was also made by the Respondents that the verdict be set aside, and far

a new trial, or iiew assessuent, or that the amount of damages absolutely awarded

to the App~llant~ for the u~itcr taken and used by the Respo~~denta might: be reduced

by the s u m of &3000, or such less aniount aa the Court should think 6%.

Mr. Justice Diekinson delivered the , j u d g ~ e n t of the Court upon these niot~ons.

After stat in^ the facts of the case, he proceeded as follows :-Ii We have considered

this case, and are of opinion, that the lai in tiff i s not entitled to the d a i ~ ~ a ~ e s con-

tingently assessed. We are of opinion, that the Plaintiff is not entitled to compensa-

tion for the subtraction by the Defendants of any water from that part of the creek

which formed a portion of Redmond’s boundary; for the Plaintiff had only the same

right in the land that Simeon Lord had, from whom he derived it, and his privileges

against the Crown couId have been no other than those which Redmond enjoyed.

AS the grant to Redmond stated his land to be ~ounded by the creek, we think that

he had no possession of such boundary, and, therefore, was not entitled to the land

over which. the creek flowed. The ~ l a ~ n t i f f , t h ~ r e ~ o r e , not having even the p r ~ ~ ~ ~ ~

fac ie right to die Iand aver which the creek flowed ad ~~e~~~~~~~ @tm c t y ~ a e , we

think has no [4$1] riparian right to use the water which flows by her land, and

is, therefore, entitled te no damages for its appropriation by the ~ e f e n ~ a n t ~ ~ For

we think the law on this point is correctly propounded by Mr. Justiee Story, in his

judgment in Tyler v.- ~~~~~~~~n (4 Mason’s U.S. Reps. 397), cited in Gale and

hatl ley On ~asements, IS1 : - - ‘ ~ ~ ~ ~ , facie, every proprietor upon. each bank of a

river i s entitled to the land covered with water in front of his bank, to the lniddle

thread of the stream; or, as it is commonly expressed, ad ~~~~~ (ilunz ugucte. In

virtue of this o w ~ e r s h i ~ he has a right to the use of the water flowing over it in its

natural current, without diminution or obstruction,’ We are of opinion also,

that the Plaintiff is not entitled to eompensation for the ~ e f e n ~ a n t s ’ disturbance

of the water which flowed over her land. For thougb she derives her title to it from

Redmond, in whose grant there was no power reserved to the Crown to withdraw

water from. off it, she also claims it from Simeon Lord, who accepted a grallt of the

land next above it, in which such a power wag reserved to the Crown for the public

purposes of this City. That reservation could not be exercised by the Crown, with-

out disturb in^ the water in ~ e d m o n ~ s land. Simeon Lord, by assenting to the

reservation in the Crown grant to himself, assented, as far as he was concerned,

to the erom doing e v e r ~ h ~ n g without whieh. that reservation eould not be affected,

Nis assent to the reservation in his own land could not, of course, be binding upon

994

LOR0 V. SYiMEP ~ ~ ~ ~ I l S ~ I O ~ ~ ~ S FO8 CITY OF> [1859] XI1 BOOBE, 482

1~edmond as long as the latter retained his rights in the land granted to him. But

after Simeon Lord beeanie possessed of the two properties he had no right to corn-

plain of the withdrawal of water from the land

the Crown’s exercise of a reservation to which he had assented in other land derived

from the Grown. The iaaxim, ‘ wolenti 9z0n fit itzjuria,’ would have applied to him

iE the ~ o ~ n n ~ i s s i o n e r ~ had exercised their powers while he was possessed of the said

p~opert~es . We vould, therefore, have been entitled to no c o n i p e ~ ~ s a t ~ o ~ ~ for the

disturbance o f the water which had been Redmond’s, even had it been Redinond’s,

and the Plaintiff who elaims under him can be in no better position. We are of

opinion, ttiat the s la in tiff is not entitled to retain the sum of S3000 awarded to

her for so much of the water, and of the use of the machinery, as would be left to

the Fla~nt,iff’s Iand after the Co~Ilissioners had taken away the water front. Edward

Lord’s land. For i f the ~ o ~ i s s i o n e r s took away all the water in Edward h r d ” ~

land, though they would be liable to compensate him for so much water as would

be a v a ~ ~ a b ~ e for his will, by reason of the s t ~ p u ~ a t ~ o i ~ to tbat effect in the grant to

Simeon Lord, nevertheless, as Sirneon Lord would not, had the ~ e f e n d a ~ ~ t ~ s taken all

the water in his time below his mill before it arrived a t Redmond’s land, have been

entitled to any further comFensation for the w i t h d r a ~ a l from the land which had

been R e d ~ o n d s , of the water, it is clear that the Flainti-tP; who claims under Simeon

Lord, cannot be entitled to such last-me~itioued compensation, which the jury

e~timated at L3000. Unless, therefore, the P~aintiff consents that her c o r ~ ~ ~ e i i s a ~ ~ o n

shall be reduced to $8460, there must be a new trial.”

From the Order discharging the motion to increase the damages, the present

appeal was brought.

Mr. Rolt, Q.C., Mr. M. Smith, $.e., and Xr. Homersham Cor, for the

Appellant.-According to the true construction of the grant of 1810, the A p ~ e ~ l a n t

is owner of the bed of the creek, mentioned in the grant, up to the middle thread of

the stream, or in the alternative, to the common riparian rights, as proprietor of

the banks of the stream in respect thereof, and is consequent^^? entitled to the un-

disturbed use and enjoyme~t of the water of the creek for all purposes, subject

to the rights of other riparian proprietors.

The land

in question i s there described as bounded on the south side by the creek; no exception

i s made regarding the creek or the water in it, nor i s there any reservation of the

water of the creek as is conta~ned in the grant of 1823. The land, thorefore,

covered by water in the creek ad medi?6m filum aquae passed by the grant, and ie

the property of the Appellant. As a general rule, the owner of land on the banks of

a stream i s entitled to a moiety of the bed of the stream. The law upon this point

is a c ~ n o ~ ~ e d g e d by the Court below to be correctly stated by Mr. Justice Story in

Tyler v. ~~~~~~~~ (4 Mason’s US. Reps. 39?), and i s relied upon In Gale and

~ a t 1 e y On ~aseinents, p. 131, lu i l ~ u ~ r a t i n ~ tbat rule of law; yet the judgment of

that Court i s in direct contradiction of such rule. The Court blow was mistaken

in supposing that the question was confined to one of property dependent upon the

right to the Iand over which the water flowed. If a man has lands

adjacent, he is entitled to the use of the water, E4841 so that bw

does not interfere with the rights of others. In B n t b ~ e y v. Omen (6 Ex&. Rep. 369),

Baron Parke states it as a clear propositi~n that (‘ The right to have the stream to

flow in i t s natural atate without diniinution or alteration, is an incident to the pro-

perty in the land through which it passes; but owing water i s ~~~~~c~ jw&, not

in the sense that it is a b o m m vacyw128, to which the first occupant may acquire an

exclusive right, but that it is public and cornmon in this sense only, that all may

reasonably use i t who have a right of access to it, that none can have any p r o ~ e ~ ~

in the water itself, except in the p a r t i ~ u ~ a r portion which he may choose to abstract

from the stream and take into his possess~on, and that during the time of his posses-

sion :” and he refers to 3faso9t v. l’litl(5 Barn. and Ad. 24) and proceeds, ‘‘ But each

proprietor of the adjacent land has the right to the usufruct of the stream whictl

flows through it.” So in Sa7n;osol~ v. ~ 0 ~ ~ ~ ~ 2 0 t t (I Com. Ben. X.S. 590) tile Court

of ~ o m ~ o n Pleas held that every prop~ietor of land on the banks of a natural

stream has a right to the use of the water, provided he so uses it as not to .work any

material injury to the rights of the proprietors above or below him on the strean1.-

[Lord ~ ~ ~ ~ s ~ o ~ ~ n : In Il iker v. ~~~~~~~ (2 Moore’s P.G. Cases, 131) the sanle doctrine

995

The first question turns on the co~s t ruc t~on of the grant of 1810.

XII XOORE, +811 LORD ‘0. SYDNEY ( ~ o ~ ~ ~ I ~ s I o ~ ~ ~ s FOR C ~ T Y OF) [E3591

x a s upheld h e r e . ~ ~ o ~ ~ v. W a d (3 Exch. Rep. 775) also recogni~es the right a

riparian proprietor has to the stream of water Bowing through the land in its state.

The Chief Baron Follock in his ~udgment (;b. 714-8) in that case refers with appro-

bation to ~ a ~ o ~ v. HG& and Tyler v, ~ ~ ~ ~ u ~ , and quotes Kent’s Comms. Vol.

III. p. 439, [w] to the effect that “ every proprietor of lands an the banks of %

river has naturally an equal right to the use of the water.” In Rex v. Th’e Zn-

habitunts of Lu.duEph (1 Moo. and Rob. 393) it was held by Mr. Justice

Patteson, that where two parishes are separated by a river, the ~~~ $vm is the

presu~~ptive boundary between them, We have also the right by user for twenty

years, and if the Appella~t should be held not elktitled to the soil of the bed of %he

creek up to the middle thread, under the grant we certainly have an easement in the

water by prescript~on. Long pre-

viously to the resumption by the Crown, there was upon the land coi~prised in the

grant a mill erected on the banks of the creek worked by the water thereof running

in its natural course, and by other water d i v e ~ e d from the creek so as to run

wholly through the Appell%nt’s land to the mill. It was also used by the several

persons in possession of the land, uot only as s source of motive power, but also for

ind~s t r ia l and beneficial purposes. The d~vers~on f the water in the creek renders

the mill useless. Is not that a ground for compensation anticipated and provided

for by the Act?

But, secondly, the Appellarnt’s right to the water of the creek was not affected

by the acceptance by Simeon Lord of the grant of the land above, with the reserva-

tion of the Crown’s right to take the water in that grant, as was erroneously sup-

posed by the Court below, as that grant had nothing to do with the right to the

water contained in Bedmond‘s grant, Lord was the owner of Redmond’s grant,

and had a ~ i g h t to the water pr~v~leges under that grant c o ~ o n with other riparian

owners. The rese~at ion in the [4@J ~ r o ~ n ’ s grant of the right to take any

quantity of water, did not a t all alter the rights of Lord under Redmond’s grant, or

of any other ~ r o ~ r ~ e t o ~ ~ of land below. The assent by Simeon Lord t o the Crown’s

reservation in the graat to himself could not affect rights under ~edmond’s, the

subject of which he was not then in possess~on of, so as to give the Crown a right

to the water in the creek below the land granted to him, a l t h o ~ ~ h that land after-

wards became veated in hiax by a different title. Had he been in possession of the

subject of both grants, he would have been entitled to compensation in respect of

the water taken from Redmond’s land, and the A~pellant, as his devisee, is entitled

to the same right. The damages ought to have comprised compensation for loss of

water rights, which were properly ~ t i ~ a t e d by the jury a t %7200, above the value

of the property resumed.

Mr. B. Palnzer, Q.C., and Mr. Stammers, for the Eesponden~.-~his case is to

be considered under two heads. First, we contend that the Appe~an t had no title

to the bed of the creek, or to the water flowing therein ; and, secoizdly, if she had such

a right, we submit that the acceptance of the grant from the Crown in 1823, pre-

cluded Simeon Lord, and all persons c~aiming under him, from objecting to any-

thing that might be done by the Crown in conforniity with the reser~ation in that

grant.

Firfit, As this i s a Crown grant, it cannot be coiisti,ued by i n ~ ~ i ~ d ~ ~ e n t , but

according to the express terms of the grant, for nothing can pass by ~mpl ica t i~n i

B Crown grant. The ease of the ~ o y d fisherg of [48’?] the 13ann.e (Sir 3. Davies’

Eeps. 157). The l a n ~ a g e of the grant, ‘ I bounded on the

south side by that creek,” is positive, and being a Crown grant, must be construed

strictly against the grantee, and ~ ~ e c 0 a ~ a r i ~ y excludes the right ta any part of the bed

or water of the creek. It is nowhere shown that the quantity of 135 acres is made

up by the soil of the creek. With respect to rivers on borders of States, AngelX,

On tide waters, lays it down, p. 7, that “ The well-settled rule of the law of nations

is, that where an arm of the sea or a river is the boundary between two nations or

States, if the original right o f jurisdiction is in either, in the absence of any con-

vention r e s p ~ t ~ ~ ~ ~ i , each holds to the middle of the stream. But where one State

$8 the original proprietor, and grants the ~ r r i t o r ~ on one side only, it retains the

river within its own domain, and the new~y-estab~i6~ed State extends to t iy river

only, and the low-water mark i s its boundary.’’ This W86 held by the Supreme

996

Statute, 2nd and 3rd Will. IV., c. 72, sec. 2.

~ ~ u ~ l i n Edit. 1762.)

LORD ‘U. SYDNEY ~ C O M M I S S I ~ ~ ~ ~ S FOR CITY OF) [1859] XI1 XOOEE, 488

Court of the United States in reference to the river Ohio, of which the State of

Virginia was the original proprietor, and had granted the territory on one side

only to Kentucky. So with respect to navigable rivers. Where the terms of a grant of a

several fishery are unknown, the owner of the fishing may be presumed to be the owner

of the soil ; but where those terms appear, and are such as to oonvey an ~ncorporea~

hereditament only, the presumption i s destroyed. The &he of Somerset v. ~o~~~~~~

(5 Barn. and Cr. 875). In Res v. Yhe I e ~ a ~ ~ ~ a ~ ~ t s of ~ a n ~ ~ h (1 Moo. and Rob.

393), cited by the Appellants, Mr. Justice Patteson held, in reference to the question

of boundary, that where two [488] parishes are separated by a river, and there was

no positive evidence of the boundary line between them, i t was to be presumed to

coincide with the middle line of the channel. But the presumption in that case

only arose in the absence of a grant, and is rebuttable. The proposition of the hppel-

lant upon this point, that the oimers of the land on either side of a stream are

entitled to the soil ‘‘ ad m e ~ i u ~ ~~r~ aguae,” cannot be sustained, as it is only a

presumption of law, which ceases where ail express grant exists, even in the case of a

subject, (4. ~ ~ r ~ ~ ~ r ~ as regards the Crown. Best, On principles of evidence, a t p.

492, clearly puts it so; he says, “ So the soil a t the bottom of a navigable river is

presumed to be in the Grown ; but where the river is n d navigable it is presumed to

be the property of the owners on each side, ‘ a d r ~ e ~ ~ ~ ~ ~~~~ aquae,’” and he

refers to Res v. The I ~ ? ~ i t ~ n € s of ~ a ~ ~ ~ ~ h (I Moo. and Rob. 393). The same rule

holds in the case of a highway, the soil of which la taken, p.;lrta facie, to belong to

the owners of the adjo~ning lands, mpue ad medium via. Berry and Goodman’s

Case ( 2 Leon. 147)) Grose v. West (7 Taunt. 39), Anon. (Lofft, 35%)) Cooke v. Green

(11 Price 736) . Lord Cranworth, in Wishart v. WylEie (1 Macqueen’s Sco. App.

Cases, 389), lays it down, “ that if a stream separates properties A and 13, ljy’kna

facie, the owner of the land A, as to his land on one side, and the owner of the land

3, as to his land on the other, are each entitled to the soil of the stream z t s p r nd

~ ~ e d i ~ r ~ a ~ ~ a e - t h a t is, p r i m facie so. It may be rebutted, but, gener~lly speaking,

an ~ ~ a g ~ n a r y line running through the middle of the stream is the bou~dary, just

as if a road separates two [489J properties, the ownership of the road belongs half-

way to one, halfway to the other. It may be rebutted by circumstances, but if not

rebutted, that is the legal presumption.” Again, Phear, On rights of waters, p.

12 (Edit. l859>, says, “ This presumption of the me^^^^^ filum being the boundary

line bebeen two riparian proprietors presupposes that the land upon which the

water fies or flows is shared between them; it cannot, therefore, arise at all in those

cases where there is an antffiedent p r e s u ~ i ~ t i ~ K ~ of law that the bed of the streaiii,

or piece of water, belongs to a third party.” Wright v. Eozr~ard (1 Sim. and Stu.

203) is one of the earliest decided authorities upon this branch of the case. The

Vice-Chancellor, Sir John Leach, held that, prima facie, the proprietor of each

bank of a stream was the proprietor of half of the land covered by the water, but

that there was no proljerty in the water. This case was followed by Lord Tenterden

in &!asom v. NiEl (3 Barn. and Ad. 304). The soil of the creek in question is cleurly

in the Grown, as the alveaa, or bed of a public n ~ v ~ g a b l e river is deter r e ~ a ~ ~ a .

The Lord Advocate f o r ~ c o ~ ~ ~ ~ ~ v. ~~~~~t~ (1 ~acqueen’s Sco. App. Cases, tt6j.

Now, riparian rights depend solely upon the right to the soil; and if there is no

right to the bed of the river, no riparian rights exist. Lord Ellenborough, in Benley

v. S?haw (6 East, 2141, distinctly lays it down that the general rule of law, as ap~)Iied

to this subject, is that, ‘‘ independent of any particular enjoyment used to be had by

another, every man has the right to have the advantage of a flow of water in his

own lend without d~minution or alteratio~.” So in ~~~~ v. I m p (7 Bingh. 695),

Chief Justice Tindal says, “ By the law of [490] England, the person who first appro-

priates any part of the water flowing through his land to his own use, has the right

to the use of so much as he thus appropriates against any other.” The principles

enunciated by these cases apply only to water which Bows over the p r o ~ r i e t o r ’ ~

own land. Where there is no right to the bed of the river no riparian rights exist,

This is, however, a novel case. New South Wales being a newly-settled country,

where $he whole of the territory or igi~al ly b0lon#ed to the Crown, the land and

rivers were in the Crown, and it i s moreover a creek with a running stream, so that

there is strictly no parallel with the cases relating to navigable rivers in this country.

It i s no% in dispute that parties may be entitled to the river only, and the banks on

997

X I X ~ O O ~ ~ , *Sl

troth sides belong to other p r o p r ~ e t o ~ , as in tbe case of the New River.--/The Lord

Justice ~ r ~ i g h t Bruce : That i s only an artificial canal.]

Secondly. Evcu if Redmond was entitled either to the soil of the creek, ad

~ e ~ ~ u ~ ~ ~ filum ~~~~, or as a riparian proprietor to the use of the water, yet, after

Sirneon Lord became the purchaser of Ltedrnond’s grant, and while Simeon Lord

w8s possessed thereof, he accepted a grant from the Crown of the land next above

~ e d ~ ~ ~ u n d ’ s grant, in which grant to Simeon Lord there was reserved to the Crown a

power to resume and withdraw any quantity of water that might be required for

public purposes. Now such reservation could not be effectually exercised by the

Crown without, disturbing the water on the boundary of bdmond’s land in the

creek. Sixneon Lord accepted his grant with the reversion of the Crow~~’s right

to take any quantity of water, and. as a ~iecessary incident, the righk to take water

from R e d n ~ o ~ i ~ s land was i ~ ~ c ~ u d e d . Sirneon Lord having conceded the [491]

right to take the water on his land, which could not be taken away without d i ~ i n ~ s ~ -

ing the flow of it lower down, could not, therefore, claim cornpelisation for an act

which was necessary to the cornp~eteness of his own grant. The ~ p p e ~ ~ a n t , as his

devisee, i s bound by his acts. It is laid down, in Shep. Touch, (At~~er~ey’s Edit.)

P. 100, that ‘‘ when anything i s excepted, all t ~ i ~ n g ~ that are depend~ng on it, and

neccssary for the obtaining of it, are excepted also: as if a lessor except the trees,

he may bring his chapman to view them if he desire to sell them ; and he and the

vendee may cut them, and take them away. And by such exception, the lessor Till

have the boughs, fruit, herons, and hawks that breed in them.” Again at P. 89, he

says, ‘‘ Wheii anything is granted, all the means to attain it, and all the fruits aiid

effects of it are granted also, and shall pass inclusive, together with the thing, hy the

gram of the thing itself, w~thout words ‘CUM& ~ r t ~ e ~ ~ ~ ~ , , or any such like

words. C ~ i . ~ ~ ? a ~ ~ e f f ~ ~ u ~ ~ c o w e ., c ~ ~ ~ ~ e ~ ~ t ~ ~ et& et id sine quo res ipsa

?amt ease ~ o ~ u ~ ~ . , ” The same principle i s found in 1 Saund. 322, b., and 2 Roll.

A h . N. pl. 1, 2, 3. Roberts v. l i c c ~ i . (I Taunt. 495), itfO&.v v. ~ ~ g ~ ~ ~ o ~ (3 Taunt.

24), Abson v. Pelztvn (1 Barn. and Cr. 195), € ~ o ~ g s ~ ~ v, P&M (7 East, 613), err^^^

77. Coo& (2 Ros. and Pul. N.R. log), are authorities in support of this doctrine.

Baron Parke, in delivering the judgment of the Court of Exchequer in Dam$ v.

~ ~ & ~ s c o ~ e (6 Mee. and Wels. 174.), speak~ng of a r ~ s e r ~ a t ~ o n in a deed, says i b . p.

197),’“ This reservation is to be construed, according to the r u b laid down in Shep

pard’s Touchstone, [492] 100, in the same way as a grant by the owner of the soil

of the like liberties : for what will pass by words in a grant, will be excepted by like

words in an esception.” Upon the same principle are ways of necessity. It is a

principle of law that the grant of a thing shall carry all things included, without

which the thing granted c a i i n ~ t be had. ~ a o l r y c h , On ways, 29, citing Bob, 234.

~ ~ i e ~ ~ ~ o r e , if A. have an acre of ground in the middle, and surround~d by other

of his lande, and enfeft B. of that acre, here of necessity a convenient way arises

on R‘s behalf to go over A ’ s ground ria a n ~ ~ s a r y incident. O~d~e~ld’s case (Ycy,

123) The strongest case upon this point i s ~ ~ ~ ~ c ~ ~ ~ ~ e v. E d of ~~~~~0~~ (6 Scott,

650. S.C. 5 Bingh. N.C. 1). There Chief Justice Tindal (6 Scott, 675) says, “ The

question which arises, and that upon which the determinatio~~ of the present case

rests, i s whether the right of passing and re-passing over the soil of the passage,

and using it for the purposes above ment~oned, did also pass to the lessees under this

lease, and we are of opinion that upon the facts found in this special verdict, such

riglit did pass a% a ~ ~ e ~ e s s a ~ ~ i ~ ~ c d e ~ t to the subj~ct-~iiatter actua~ly de~k~sed, though

not speciaIly named in the lesse.” The ruIe laid down in Plo~den’s Comms. (26 a)

is, that by the grant of anything, conceditur et id s i m quci reg ipsa hahere non pattst,

as if one grants his trees, the grantee niay enter upon his land for cutting down and

carrying them away, for which a ~ ~ t l ~ o r i t y the Pear Book, 2 Ric. IT., i s cited. Again,

Justice ~ ~ ~ s d e ~ i , in Pornfret v. ~~~~~~~ (1 Setund. 323), lays down the rule of law t5

be, ‘I When the use of a thing is granted, e v e r y t h ~ n ~ is granted by which the grantee

may have and enjoy [493] such use, as if a man gives me a license to lay down

pipes of lead in his land to convey water to my cistern, I niay afterwards enter and

dig the land to mend the pipes, though the soil belongs to another and not to me.”

Mr, Justice Bayley in The Duke of , ~ ~ t ~ ~ ~ s e ~ v. ~#~~~~~~ (5 Barn. and Cr. 885), puts

this question in the true light. He says, ‘‘ This i s the case where the grant i s made

between subject and subject, and, ~ o ~ ~ s e ~ u e n t l ~ , i s o be con~trued against the

grantor, a principle ~na~pIicable to grants mtide by the Crown, whereby nothing

998

IXfRU ‘U. SYDNEY ( ~ ~ ~ ~ ~ I I S ~ I ~ ~ ~ R ~ FOR CITY OF) [1857]

LORD t i . SYDNEY ( ~ O ~ ~ I S S I O ~ ~ R S F R CITY OF) [lS59] XII MOORE, 494

passes, unless the i n ~ r I t i o ~ 1 that it should pass is manifest.” Lastly. The reserva-

tion in Simeon Lord‘s grant was not in derogatioIi. But if so it is not bad as against

the Crown. After an e~sement has been e~~inguished by unity of p06-

session, a new ease~nent is not created by a grant of a messua~e and

land with a common a p p u r ~ n a n t . ~ ~ e ~ ~ e ~ ~ s v. n e r ~ (1 Taunt, 205), ~ ~ ~ e h ~ ~ a s v.

~ ~ ~ , ~ e r ~ ~ (Cro. Jac. 121). So in a Court of Equity, where a condition is an-

nexed to a grant or a bequest. The Att.-Cea. v. Chrisfs Kosetal (3 Bro. C.C. 165),

Messefiger. v. Aiadrews (4 Russ. 478), E g g v. Devey (10 Beav. 444). These authorities,

though analogous to, are not in reality cases of election, the principle enunciated

in those cases being equally applicable to a grant by deed, in which anything in the

nature of a condition annexed, or stipulation of reservation, is implied. Under the

circumstances, we submit, that the Appellant was not entitled to have the damages

increased by the amount contingent€y assessed.

Xr. Smith, &.e., in repIy.-There is no case which has expressly

turned upon the fact of the bed of a river being in one person,

and [494] the soil of the adjoining land beIonging to another, If it

had been copyhold^ the Lord of the Manor would have been entitled to the river

and the c w s t i s ~ ~ ~ ~ ~ ~ ~ ~ 5 . The authoritie~ relied upon by the ~ e s o n d e ~ ~ t s relating

to a navigable river do not apply. C‘pon the true coristruction of the grant to Red-

mond, the boundary of the lands must be held to extend to the middle titiread of the

stream. Failing that, as a common riparian proprietor, the Appellant was en-

titled to compensation for loss of the water. Again, the parties have enjoyed the

use of this water for twenty years, and consequently have an easement, which, by the

Statute, 2nd and 3rd Wm. IV., c. 71, sec. 2, binds the Crown equally with the sub-

ject.-[The Right Ron. Sir John Coleridge : Does that Statute extend to the Colony?]

-The Colony adopts the English law.

Jud~inent having been reserved, was now delivered by

The Right Hon. Sir John Coleridge (Feb. 12, 1859~.-~~is appeal arises out of

a claim for compensation for the alIeged loss of certain valuable water-rig~ts,

occasioned by the aots of the ~ o m ~ ~ s s i o n e r s fo the City of Sydney, under a Colonial

Act, the 17th Bict., No. 35, entitled, ‘ I An Act for s u p p l ~ n g the City of Sydney, and

portions of the suburbs thereof, with water.” No question arises upon the nature

of the acts done, nor on the power of the Commissioners ; but the Respondents deny,

first, that. the Appellant had any such rights as she alleges; and, secondly, they insist

that even if she had, she cannot, under the particular circumstances hereinafter

detailed, claim any compensation for the deprivation of them.

Under the Colonial Act, questions of disputed compensation are tried in the

form of an action [495] brought against the Commissioners. The Appellant accord-

ingly sued them, and her claim substantially embraced three matters ; compensation

for Iand and buildings taken ; for the deprivation of water used as the motive power

to a mill, which stood on her land; and for the depr~vat~on of water for the use

of machinery, and other purposes, in consequence of the ~ o m n ~ ~ s s i o n e r ~ having

taken away the water from the land of one Edward Lord, higher up the stream.

The jury found for the Plaintiff on all these claims, and separately on each by

direction of the learned Judge who tried the cause, The ~espondents do not ques-

tion the verdict on the first claim, and the Court below having directed a new trial,

unless the Appellant would agree to reduce the amount of the damages by the sum

awarded on the second, has consented to that reduction : the only question, therefore,

which remains, is, as to a sum of $7200, which has been awarded by the jury con-

ditionally, on the last head.

The property now belonging to the Appellant, and in respect of which this claim

is made, was originally granted on the 1st of January, 1810, by Mr. Macquarie, then

the Governor of New South Wales, to one Edward Redmond. It is described as

‘‘ 135 acres of land lying and situate in the district of Sydney; bounded on the

west side by Xary Lewin’s Xewcastle farm, bearing north 37 chains ; on the north

side by an east line of 30 chains; on the east side by a south line to a small creek;

and on the south side by that creek and the mater of Botany Bay, a t the mouth of

Cook‘s River.” It thus appears, that partly on the east, and partly on the sout,k, the

land is bounded by the creek, and it i s as riparian owner that the appellant'^ claim

is made. The argument in opposition to this [496] was, that in respect to wter -

999

X I X MOORE, 497

rights, a riparian owner was only one who was also the owner of the soil ud

~ ? ~ e ~ z f ~ ~ ~ f i l ~ ~ ~ npztae; but that by the terms of this grant, the creek, which bounded

the land, was necessarily excluded from the land itself comprised in the grant. It

was urged that grants from the Crown were to be construed strictly against the

grantee, and that nothing would pass under such a grant by mere inference; that

here 138 acres of land specifically were granted, and that it had not been shown

that it was necessary to include any portion of the soil of the creek in order to make

out that quantity.

Their Lordships do not think it necessary to express any opinion on the first step

in this argument. They desire only that it may not be taken for granted that they

accede to it. Zt is a question of some nicety, and it so constantly happens that the

owner of the bank is also the owner of the land ad ~ ~ e d ~ z & ~ f i lu9~, that it is dangerous

to attribute too much i ~ p o r t a n ~ e to the language either of judicial decisions or

text-books, which seem to define the right, where the foundation of it has not come

specifically in question.

Mr. Chancellor Kent, in his ~ommentaries (Ed. 1840), part 6, Lect. 52, p. 438,

writes thus :-“ Every proprietor of lands on the banks of a river has naturally

an equal right to the use of the water which Aowr in the stream adjacent to his

lands ’ ’’ ; and a few lines lower down, speaking of the same person, he adds, “ Though

he may use the water while it runs over his land, he cannot unreasonably detain it.”

N u t it is unnecessary for their Lordships to say more on this point, because they

are clearly of opinion, that upon the true construction of this grant, the creek where

it bounds the land is, nd medium filum, 14971 included within it. In SO holding

they do not intend to differ from old authorities in respect to Crown grants; but

upon a question of the meaning of words, the same rules of common sense and jus-

tice must apply, whether the subject-matter of construction be a grant from the

Crown, or from a subject : it i s always a question of intention, to be collected from

the language used with reference to the surrounding €ircumatances.

The learned Counsel for the ~ e s ~ n ~ e n t s con ended that, accord~ng to the plain

and literal ~iieaning of the words, which must alone be looked to, that which was

described as bounding the s u b j e c ~ m a ~ e r of a grant, must be something beyond the

limits, and excluded from it. But this will not be found to be a test which can be

practically applied. Words in an instrument of grant, as elsewhere, are to be

taken in the sense which the common usage of mankind has applied to them in

reference to the context in which they are found. If lands granted were described

as bounded by a house, no one could suppose the house was included in the grant;

but if land granted were described as bounded by a highway, it would be equally

absurd to suppose that the grantor had reserved to himself the right to the soil

ad medi.unt f i l m , in the far greater majority of cases wholly unprofitable.

This consideration shows that it never can be a question to be determined by

the literal nieaning of the words, without reference to the circumstances in which

they are used. The same learned author who has been already cited, and who may

be safely relied on in any question of general principle, lays it down (vol. iii. p. 433,

part 6, h c t . 52), that ‘‘ it may be [/i98] cansidered as the general rule, that a grant

of land bounded upon a highway or river, carries the fee on the highway or the

river to the centre of it, provided the grantor at the time owned to the centre, and

there be no words or specific description to show a contrary intent.” Tried accord-

ing to these principles, it appears clear to their Lordships that the description of the

boundaries in this grant does not exclude from it that portion of the creek which,

by the general presumption of law, would go along with the ownership of the

land on the bank of it. The Crown had the power of granting i t ; no reason can

be assigned why it should have reserved what might be directly and immediately

useful to the grantee, and could scarcely have been contemplated as of any probable

use to the Crown, and this too in an infant Colony, where it was the manifest and

avowed policy to encourage settlement and the cultivation of land by grants on the

easiest and most favourable terms.

It may not be ~mmaterial to refer here, by way of ~ l l u ~ r a t i o n , to another &?Own

grant, shortly to be noticed more fully, of lands on the opposite side of this same

creek. The boundary on the south-west and west sides is there described as being

“ hv Botanv Bay, a creek, and Redmond’s farm.” It is obvious how differently the

LORD ‘U. SYDNEY ( C O ~ ~ I S ~ I O ~ E ~ S FOR CITY OF) L18591

1000

LOBD V. SYDNEY ~ ~ O ~ ~ i ~ S ~ I O N E ~ S FOR CITY OF) [I8591 XI1 XOORE, 489

word '' bouI~dary " may be understood with reference to these three things. But

in this latter grant the Crown expressly reserves to itself a power of taking any quan-

tity of water which may be required for public purposes. If the creek had been

escluded from the grant, the resorvation would not ham been requisite; and if i t

be ekcluded, and be also escluded from the grant to Eedmond, the argument founded

on the iIriproba1~~~ity and ueelessnesb of such a r ~ s c r ~ ~ a t i o i i s so iauch the stronger.

[@9] Rut, it is nest to be seen wlrether, if the Ap~3el~ant had the ~ r d i n a r y rights

of a riparian owner, there is anytliing in the circ~n~stancee of lier title to exclude

her from coriipensation, as alleged. It appears that soiiie little time before the

date of the grant last referred to, which was the 27th of May, 1823, Simeon Lord,

the grantee under that grant, had contracted for and become the equitable owner

of ~~ed~1io~id 's grant; s u ~ s e q ~ e n ~ ~ y he became tlie legal owner, and Mary Lord, the

~ ~ p e ~ ~ a I ~ t , i s his devisee of that grant. In the grant of 1833 there is a saving

and reserving to tlie Crown of any quaniity of water, and any quantity of land

riot esceedirig ten acres, in any part of tlie grant, as may be required for public

purposes. The Coruniissioners hare acted o n this reserration, arid it is in so doing

that tlie-y have necessar i~~ abstracted the water from the Appellant, and done her

the injury for which she seeks c o r ~ ~ ~ e ~ ~ s a t i o i ~ . But it i s said that Sirueon Lord could

have claimed no compensation for an act tr-hich xTas necessary to the c o ~ p l e t e n ~ s s of

his own grant : that, as he had conceded the right to take the water on this land,

.ivhic+r could riot be talren tlreiice without intcrruptiiig the tiow of i t by the land on

the upposite side, and lower clowlr, of wi~iclt h ( 3 \vas then the equitable owner, be

must be taken to have conceded it equally in respect of those lands, and, if so, that

the Appellant is hound by clie same presumption, havirig taken tlierit as his deviset..

It appears tu tbeir Lordships that this argument is founded on a nikapplicat iorr

of a x~ell-known and a d i ~ i t t ~ d ~ ~ r ~ ~ ~ ~ p ~ e of law. If you grant ~ n ~ h i ~ g , you are

~ ~ r e s u i ~ ~ e d to grant, to the eitent ctf your power, that also without wtzicli the thing

granted can-[~O~]-~~ot be enjored. But what i s the effect of this reservation 1 Tcn

acres of land in any part of tlie grant are reserred, at the election of the Crown, if

require4 for public purposes ; these are not to be granted to the Crown by Lord, I ~ i t

are i ~ r o ~ r i s i ~ ~ ~ a ~ l y saved out of the grant fx hint. As to the water, Lord, as oalier

of the land, had no power to grant i t to the Crown; the Crown could not grant any

property in it to Biixi, nor he to the Crowi : the effect of the saving i s only that lie

vaives Ilia own rights as riparian otvncr to the use of it as it flowed. If the Xaiids

below or opposite bad been otined by a stranger, this saving would have had its full

effect, a l t ~ ~ ~ i ~ g l ~ the stranger had insisted upon ~ o ~ ~ ~ p e r ~ s a t i o n for the ~ ~ i ~ s e ( ~ u e i i t ia2

loss to liimself ; and so it would hare he11 if there had been sny nuniber of lower

proprietnm, all of whom were to bo compensated; for the intention and effett of

i t was only to enahle the Crotsn to take the water a t any t h e , % T i t h u t ~ o ~ i ~ ~ ~ c n s a t i o ~ ~

t u Lord in respect of the injuip to that Innd. Ilord's insisting upon ~ , ~ ~ ~ ~ ~ p e ~ ~ s a t ~ o ~ ~

in respect of other land would not have nnterfered with the operation, or the com-

bteteness of the saving in respect of this land : but for the satTing, the Crown niust

hare paid two CompeI~sations, or made ~ ~ r e e x ~ ~ e ~ ~ t s in respect of tn-o rights; IIOW

it IS free as to the one, and has only to c t ~ ~ ~ p e n s a t e the other.

On these ~ r ~ ~ u ~ i d s the r fiordships Kill advise Her Xajesty that the judgment of

the Court below ought to be reversed, in respect of the sun1 of $7200, by ahicfl

ainount the damages of the Appellant ought to be increased ; and they will furtrier

r e c o ~ i ~ ~ e ~ ~ d that sim be allowed the costs of this appeal.

Jlllews' Dig. tit, CNOWN, D. CROIVN GRANT ; tit. REED AND BOKl), C , ~~~~~~~~~-

TIoN, I . I n G r n e m l ; tit. WATER, C . STBEB~\IS, BTC., 1. Rights and I.nc*&lants of,

a. CFftiPrnlly, 2. Acquisition o/ R&hts, 11. Graiit. S.C. 33 L.T. (0.S.) 'I : 7 l$r.R.

167. See RecX-att v. ~ ~ r ~ ~ ~ ~ ~ ~ ~ [ ~ n of L~eds , 1873, L.R. 'i Ch. 424 ; B

. ~ e ~ ~ ~ ~ ~ ~ ) ~ ~ ~ a ? ~ ~~~~~~ nf Wo&s, 1872, Z.R. 9 R.L. 492 : ~ ~ 7 c ~ ~ a j ~ ? / , ~ ~ ~ v. .\rew&rij

N I &Jgp Co., 1586, 33 (3i.D. 146 j ~ ~ o ~ ~ e ~ 7 . 8frrtrrf, 1839, 11 A.C. 294.1