Down v Attorney-General (Qld) [1905] HCA 15

HIS MAJESTY'S ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND, | Responpenr. ON THE RELATION OF JOHN CURRIE

Pai Parks Act 1854 (Queensland) (18 Vict. No. 33) - Trustees of Public Lands ©, of A. _ Act 1869 (83 Vict. No. 2} - Trustee - Breach of trust - Declaration of trust - 1.995, Injunction - Coste, a BRISBANE, May 30, 31,

Where land is granted to trustees in trust 'for cricket and other athletic 'ports and for no other purpose whatsoever," the trustees are entitled to | Permit the use of the land for any lawful purpose not inconsistent with its 'we when required as a place for holding athletic sports, and in particular for 'ay purpose which, while not interfering with such use, is conducive to the Grimtn Cf 'main object of tho trast. O'Conner JJ.

Where land in Brisbane so granted was leased by the trusts y S. to use the ground and buildings thereon for bioyle rating af other sports, pastimes, and purposes as ho might desir evry Satedayeng between seven and eleven p.m., and every Wednesday afternoon, fourceen' days' notice in writing was given the trustees, and pro that the said ground was not otherwise engaged or required by thet

plaintiff was entitled to a declaration that the trustees were not ent permit horse racing or pony racing to be carried on in the ground, ex way of incidental use, and so as not to interfere with the use of the lant the main purposes of the trust.

Held also, on the terms of the particular lease, that the trustes | transgressed the conditions of the trust.

Judgment of the Supreme Court of Queensland, Attorney-General v. Dn QW.N,, 17th March, 1905, No. 9, varied.

AppeaL from an order of the Supreme Court of Queensla Attorney General v. Down (1). 'The following statement of the facts is taken from the judgmen of Griffith CJ. : j This is an appeal from a decision of the Full Court affirming decision of Real J. in an action brought by the Attorney-« on the relation of a resident of South Brisbane, against the appa lants, who are trustees of the Brisbane Cricket Ground under deed of grant from the Crown, dated 21st March, 1905, by which

poses whatsoever." 'The respondent alleged that the app had used the land, or permitted its use and occupation, for th purpose of horse racing and pony racing, and otherwise than as8 reserve for cricket and other athletic sports, and threatened continue to do so, and he claimed a declaration that the app lants were not entitled to use or occupy, or permit the use a occupation of the land for the purposes of horse racing or pol racing, or otherwise than as a reserve for cricket and olf athletic sports, and that such use or occupation isa breach 0 trust. He also claimed an injunction against such use future.

'The appellants admitted that the land had been used ie pony races and other races, and set out' an eoresiielia Mim 7th March, 1905, No. 9

sharpe under which such use had been permitted. 'They denied tint the use under the agreement was contrary to the trusts of the grant, and further said that the pony and trotting races "oljtted to were held temporarily, at such times, and under such iremstances, as did not prevent the land being used for the

agreement with Sharpe were conducive to the attainment of those ses, and that, without the aid of such an agreement, it ould be impossible to obtain money to pay the prineipal or interest due upon a mortgage of the land which had been law- filly made by the trustees with the consent of the Governor-in- Council, or to preserve the land in a fit state of repair, or toattain the objects and purposes for which the land was granted.

The ease was tried before Real J., who made a declaration that the appellants were not entitled to use or occupy or permit the we or occupation of the land for the purposes of horse racing or poy racing, or otherwise than as a reserve for ericket and other athletie sports, and that in so permitting the use of the ground for horse racing the appellants were guilty of a breach of trust. He refused to grant an injunction, but without prejudice to an application for an injunction after the termination of Sharpe's 'agreement.

On appeal to the Full Court the judgment was affirmed by Amajority (Chubb and Power JJ.), Cooper C.J. dissenting.

Fez (with him Stumm), for appellants. The terms of the grant, viz., "for cricket and other athletic sports and for no other purpose" do not preclude the land from being used for horse and Poy racing when not required for the purposes mentioned in the grant. 'The land may be used for any purpose not inconsistent with the main purpose. If one small corner of land granted for cricket were used for tennis, in such a way as not to interfere with the use of the rest of the land for cricket, such user would not amount to a breach of trust. The expression "and for no other Purposes whatsoever" in the grant means for no other purpose than as a reserve for cricket and other athletic sport. The real

• limitation upon such user is that it must not be permanently

urposes for which it was granted, and that the terms of the Qurexsuax,

HOG. or A. 1905. Dows * ATTORNEY. (GENERAL OF QueeNstann,

inconsistent with the original purpose: Attomney-Qe Hanwell Urban Council (1).

(Gnurrm CJ. - That is not a direct authority that y temporary user is permissible]

Where portion of land granted to trustees is not im required for the purposes of the trust, that portion may be by them for any lawful purpose. Here the whole of the vm track is outside the erieket and football ground.

Here the land was being used for raising funds to pay inte on the mortgage - a purpose auxiliary to the trust, and antagonistic to it. In Attorney-General v. The Mayor &e. ofS ampton (2), where the trust was to keep the land in condition for purposes of recreation, the use of the land for a cattle fair was held to be a breach. But in that case the ust was inconsistent with the main purpose of the grant. a

(Grirrrrit C.J. - That case was decided on the construction of the particular Act of Parliament.]

Where portion of the land granted subject to such limit as these is not immediately required for the purposes of the t that portion may be used for any lawful purpose: Attorn General v. Teddington Urban Cowneil (3); Attorney-General Corporation of Sunderland (4). Here the user isnot inconsis with the express objects of the grant, and in addition substantial profits with which the trustees are enabled toimpro the ground.

(GrirrrrH CJ. - Under the Act 33 Viet. No. 2, clearly a lease can be given for less than three years; and by sec. 10, the pr ceeds by way of rent reserved upon a lease under the Act required to be applied solely and strictly to purposes within the express trusts.] a

See. 9 provides that the land may be leased fora longer pen than three years with the consent of the Governor-in-Counell Tn those cases leases could be granted for any purpose.

fe (1) (1900) 1 Ch., 51; (1900) 2 Ch., (] (1898) 1 Ch, 66, per Romerd 7. p68. (2) 1 Gif., 363. (4) 2.Ch, D., 634.

(Guerra CJ - But would the words of the grant'and forno ather purpose" take the ease out of the scope of the Act?} mThis case is not governed by the Statutes under which the 'tmstees are appointed; but the words of the Act making the tees the managers of the land have a strong bearing on the construction of these trasts. In Grand Junction Canal Co. y, Petty (1), where land was acquired and used by a canal com- yy under their Statutes for the purposes of a towing-path, it held that such land might be dedicated as a public highway, ifsuch use be not incompatible with its use as a towing-path shen required by the company. Here the trustees are in the position of absolute owners, and are not using the land for pur- 'poses inconsistent with the trust. {O'Connor J. - Anything which would make the ground more attractive to the public and provide more facilities of access would Jepermissible. But does this case come within that rule?) The general incidents of ownership cannot be curtailed except so far as their exercise is inconsistent with the trust. The Acts der which the trustees are appointed make them owners or 'managers, empower them to lease up to three years, so long as such power is not interfered with by the terms of the grant, and over three years with the consent of the Governor-in-Couneil. {Grirriru C.J. referred to In re Gonty and Manchester, Siefield and Lincolnshire Railway Co. (2); Caledonian Rail- y Co. v. Turcun (3); and Foster v. London, Chatham, and Dover Railway Co. (4).] The question is, will the user objected to prevent the use of the ground for the main purpose of the trust: Bayley v. Great Western Railway Co. (5). Here the main purpose of the trust would not be interfered with, as the agreement provides that the gound can only be used for pony racing when not required for 'ticket or football, and that during pony racing, the playing found is not to be used by the spectators: Attorney-General v. Twee(6). Paragraph 10 of the defence, which states that the 'Weay and trotting races were only held temporarily, and at such

times and on such conditions as would not prevent the land from 3, ml.

H.C. or A. being used for the purposes for which it was

real question, By such use of the land, the trustees are

Dows to keep the ground in good repair. In Attorney-Ge arroaxer. Hanwell Urban Cowneil (1), there was a permanent a Gexerat interference with part of the land. In Attorney-@

Quesxsraxo. Mayor de. of Southampton (2) there was an absolute inter

as to place but limited as to time. Neither of these case affected by Statutes such as the Parks and Public Lands 1869. In grants the words "only" and "for no other purpos

way to cricket or football whenever any question arose as whether both should be carried on together. In Fitepatrick Waring (4), it was held that a trustee having the legal es who has active duties to perform, may, without any expr leasing power, grant a lease for a reasonable term. Here th

until it is required for that purpose, use the land in any way 10 inconsistent with its ultimate use for pasturage, Municip Council of Sydney v. Attorney-General and Milroy (5).

Lukin (with him O'Sullivan) for respondent, The que here arises on the construction of the terms of the legal graut By the grant it was intended that a user for any purpose other than those specified should work a forfeiture.

[GrirritH C.J. - Here the trustees have a statutory right to lease for a period not exceeding three years] :

But the grant in this case specified particular uses, and cam tained a general prohibition against any use other than tho specified. If it were expedient to use the land for other purpose a licence could be obtained from the Crown allowing such ts

(1) (1900) 2 Ch., 377. (3) (1904) 4 S.B. (N.S.W.), 7.

'and even if the granting of such licence constituted a breach of H.C. or A.

trust the Attorney-General need not take action: London County 1: Council v. Attorney-General (1). > aa 'his grant was made under see. 95 of the Crown Lands Act... 1ORNEY-

1684, and, as the Trustees were given special power to mortgage Grvemat 'a their Act, it would appear that the legislature had not intended qczexsuaxp. the Prustees of Public Lands Act 1869 to apply. If it be held = - thst the terms of this grant do not prohibit pony racing, it

ould be impossible for the Crown to make a grant exclusively

forany one purpose. The statutory power of leasing must be

'ead subject to the restrictions placed on any such power by the

terms of the grant. Attorney-General v. Mayor &e. of South-

anpion (2) governs this ease. 'There power was given to the Corporation to appropriate waste lands "exclusively for the

'The phrase "exclusively " is no more prohibitive than "for no ther purpose." In that ease the reason of the decision was that theland could not, according to the trusts, be used even tempor-

" arly for the purpose of recreation. Attorney-General v. Tedding- tm Urban Council (3); Boyce v. Paddington Borough Council (); Bostock v. North Staffordshire Railway Co. (5).

The respondent is entitled to a declaration not only that any we of the land inconsistent with its use for cricket and other athletic sports is a breach of trust, but also that its use for pony ring at any time is a breach.

(OCoxnor J. - It is then necessary to show an absolute pro- libition in the deed.)

In Foster v. London, Chatham and Dover Railway Co. (6), the letting of the shops was allowed because there was no prohibi- tion in the special Act constituting the company.

[Grrerre C.J. - In Ashbury Carriage and Iron Co. v. Riche () itis laid down that everything not specially allowed in the tharter of a company is prohibited. Where was the authorization in Foster's Cuse?)

Teas held there was an implied authority: Trustees of the

(1) (1902) 4.€., 165. 4) (1903) 2 Ch., 1 Git, 363, 3 Sines (2,298) 1.Ch., 66, per Romer J., (6) (1895) 1 QB. p70, (7) LR. 7 HL,

H.C.or A. Royal Agricultural Society vy.' Mayor ce. of Essendon

ssenat, should be given to every word used: Diteher y. Denison

Trustees of the Victorian Rifle Association ¥. Mayor Williamstown (2). 'The words "and for no other purpose" have a meaning asi

xv. Cargo ex * Argos" (4); Cowper Hssea v. Local Board for Aet

conducted in such a manner as to constitute a nuisance, Thee must therefore be treated on the footing that the uses comp

The first question for consideration is the construction of the deed of grant. The respondent contended that its terms, particularly the use of the words "and for no other purpo whatsoever," absolutely forbade the use of the land for any pose, or at any rate for any sport, other than athletie sports. appellants contended that those words did not prevent the use the land for any lawful purpose at times when it wasnot requitel for athletie sports, provided that such use did not interfere its use for the latter purposes when required, and they maint that on the evidence no such interference was shown to har oceurred or to have been threatened.

Ts appeared from the preambles of various private Stata referred to that the form of declaration of trusts with the word "and for no other purposes whatsoever " is one commonly 0 in Queensland in grants of land to trustees for public pt f In the State of Victoria, on the other hand, it appears 4 have been the praetice to include in the deed of grant a provision th the trustees should not permit any part of the land tobe used ft

(1) 18 V.LR., 85. (4) LR, 5 PCy 134, 2) 16 V-L-R., 25 (5) 14 App. Cas., 158. (3) 11 Moo, B: 24, per Knight

'wy other purpose. 'The respondent contended that the words in "the Queensland form of grant imply a similar provision, 'The New South Wales Act, 18 Viet. No. 33, called the Public 'Parks Act 1854, which recites that it is expedient that bodies 'oftrustees with perpetual succession should be created for the of holding managing and protecting lands granted or dedicated to purposes of public recreation, convenience, 'ealth and enjoyment, provides that when lands are granted by 'the Crown to trustees for such purposes the trustees shall be a 'dy corporate, and declares (sec. 5) that trustees appointed by 'virtue of the Act shall have all the powers of absolute owners pt for the purposes of alienation, and that they may make 'rules and regulations (subject to the approval of the Governor-in- Council) for, amongst other things, " regulating the use and enjoy- ment of the lands." | The Trustees of Public Lands Act 1869, (33 Vict. No. 2), rwites in the preamble that from time to time sundry Crown lands have been granted and may hereafter be granted to various individuals "upon certain trusts for public purposes and no other," ai that by an Act 28 Vict. No. 22, certain powers had been given to such trustees the exercise of which had proved prejudicial tothe public interests. The Act then repeals the Act of 28 Vict., 'td substitutes other provisions. It provides, amongst other things, that, notwithstanding the provisions of the Real Property Att 1861, and in particular, the provisions of see. 79 of that Act, (which in terms confers an absolute power of alienation upon 'istered proprietors who are trustees), it shall not be lawful for 'ch trustees, é.c., those referred to in the preamble, to sell, transfer, srmortgage any land vested in them for any such public purpose, "tor to lense the same for any term exceeding three years" 'Scept under the provisions of the Act (sec. 3). See 7 provides tit it shall be lawful for such trustees to lease the Jands vested 'them upon trust subject to certain conditions set out in secs. 8 ttl9. These provisions do not seem to affect the power to lease fora term not exceeding three years, which is formally conferred Wythe Real Property Act as well as by see. 5 of the Act of 1854, the word "alienation" in that section includes leasing.

The appellants contend that, having regard to these Statutes,

H.C. or A. they have all such ordinary powers of owners!

; vam hip a8 may bee cised without prejudice to the main object ofthe trast in eng

the land "as a reserve for cricket and other athlétie «py They maintain that, having regard to the Statutes and to general rules applicable to statutory owners of land for purposes, those words do not mean that the land shall be "teen for such sports in the sense that the use of the land for allo purposes is forbidden.

law applicable to the ease of such owners. In R. v. Lee (Ith question was with regard to land vested by an Act of Parliane

land as a highway, so that the parish became liable for rept it. Parke J. said (in a passage quoted with approval by 4 Smith LJ., in Foster v. London Chatham, and Dover Railiny Co. (2) ): - " IE the land were vested by the Act of Parliamentin commissioners, so that they were thereby bound to use it f some specific purpose incompatible with its publie use as « hig way, I should have thought that such trustees would have ben incapable in point of law to make a dedication of it; but if su use by the public be not incompatible with the objeets preseribal by the Act, then I think that the commissioners have that port The mere circumstance of their not being beneficial owners ant preclude them from giving the publie this right." 'The lear Judge then proceeded to consider whether the special purposs indicated by the Act of Parliament were inconsistent with the of the land in question as a highway, and came to the eonelas that they were not. In Attorney-General v. Great Bastern Ral way Co. (8), Lord Selborne L.C., said: - "T assume that yom

in The Ashbury Railway Carriage and Iron Co. v. Rieke b It appears to me to be important that the doctrine of ultra as it was explained in that ease, should be maintained. But! agree with Lord Justice James, that this doctrine ought to reasonably, and not unreasonably, understood and applied,

'jxtwhatever may fairly be regarded as incidental to, or eonse- veal upon, those things which the legislature has authorized, fovit not (anless expressly prohibited) to be held, by judicial Jomsiruction, tobe ultra vires." Lord Blackburn dealing with the Mrvease of Phe Ashbury Railway Curriage and Fron Co. v. Riche

[ssid (2): - "That ease appears to me to decide at all events this Quatstnist

"that where there is an Act of Parliament creating a corporation fora particular purpose, and giving it powers for that particular -purose, what it does not expressly or impliedly authorize isto be ~ jaken to be prohibited," and added: - - My Lords, I quite agree with

what Lord Justice James has said on this first point as to pro- , hibition, that those things which are incident to, and may reason-

• gily and properly be done under the main purpose, though they nay not be literally within it, would not be prohibited." In Foster y. London, Chatham and Dover Railway Co. (3), the question was whether the defendants, a railway company, might lit the spaces under their arches for shops. 'The Court of Appeal,
• qoustituted by Lord Halsbwry, C., and Lindley and A. L. Smith LJJ, held that the company had an implied power to use land sgquired by them for the purposes of their undertaking, in any nanner which was not an infringement of the rights of other
• pasons, and which was not inconsistent with the purposes for "which the company was constituted. Lord Halsbury, in the ; course of his judgment said (4): - "I have now to see whether _ fine is anything in the Act of Parliament whieh prevented this , eof the railway arches; and I think the question must come ;

to that, If the company have the right to let the railway

aches it is impossible to contend that they cannot let these

little pieces of land, which give additional accommodation to the -nilway arches, in the form in which they are let. I for one

• tititely deny that there is any established proposition of law which prevents the railway company using this land and their arches for some collateral purpose that may give profit to them.
• Agreat variety of examples have been given by various judges sf things which may be done by railway companies besides their own particular business. It is familiar to us all that coal stores

7 (3) (1895)1 QB, Te 'at p. 481. (3) (1895) 1 QB, 71, at pe 718.

and bookstalls, and a great variety of things may be sy railway companies which, although not actually used in tei ness of carrying passengers and goods, are nevertheles thy which they may do, and yet carry on their own partitlar fy ness quite consistently. I for one should be sorry to place ay restriction on their power to make, to the best of their their undertaking profitable to their shareholders and 4 venience to the public."

Lindley LJ. said (1): "It is necessary to consider whether j defendants are exceeding their statutory rights. What is th measure of their rights? The law on that point is now setld He then read the passage above quoted from Lord Sori judgment in Attorney-General v. Great Eastern Railway 03) and, after pointing out that there was nothing in the 'company's Act which expressly authorized the letting of the arches, that, with the exception of a single case before Malins V0, the authorities are consistent with the proposition that any mol of enjoying a company's own land is impliedly permitted if its not inconsistent with the provisions of the company's Acts,andis not an infringement of the rights of other persons, A. L. Smith LJ. quoted with approval from the judgment of Parke J.inR Leake (3), the passage above cited ; and also quoted the p above cited from Lord Blackburn's speech in Attorney-Ge v. Great Eastern Railway Co. (2). Again in In re Gonty a Manchester, Sheffield and Lincolnshire Railway Co. (4), the Cour of Appeal held that, when the giving of a private right-of over land taken by a railway company is not inconsistent the purposes for which the lands have been taken, it is not vires of the company to grant such a right-of-way.

In Attorney-General v. Teddington Urban Council (5) question was whether part of lands held by the defendants " the reception and disposal of sewage" might lawfully be usel ss arecreation ground and certain other purposes objected to by the relator. Romer J. said (6): "I think it right, therefore (0 state shortly the views I take as to what the powers of tit

(1) (1895) 1 Q.B., 711, at p. 719. (4) (1896) 2 Q.B., (2) 5 App. Cas., 473. (5) (1898) 1 (8) 5B. & Ad.,'s69, (6) (1898) 1

iefendants are with reference to the interim user of the land not jnmediately required for sewage purposes. Now I agree that the defendants could not apply the land to or use it for any pur- ose inconsistent with the purpose for which itwas acquired; but in the present case those purposes did not require immediate use ofevery part of the land for sewage purposes. Some part only wasrequired for immediate sewage works, and the remaining gurt has to be retained because needed hereafter for those works, and for the actual application of this remaining part for such purposes the defendants could retain it, and one of the purposes for which they acquired it might be said to be such interim retainer. Of course, while so retaining it they could not use or

• dail with it in such a way as to prevent or substantially interfere "with its immediate use for sewage purposes whenever it was needed for those purposes. But subject to that exception while
• taining it, I do not see how it was inconsistent, for the purposes for which they acquired it to use it, in any lawful manner in which in its then condition it could be used, provided it did not alstantially interfere with the main purpose of drainage for which it was ultimately wanted. Iknow nothing which makes itunlawful for a council such as these defendants to permit vacant lind in their possession, and not at the time required for the titimate purpose for which they acquired it, temporarily to be wed asa recreation ground, provided care is taken to prevent my rights being acquired over it by the public or otherwise which would prevent or interfere with the council using it for
• Sich ultimate purposes whenever required."

He then pointed out that the case of Attorney-General v. Mayor eof Southampton (1), (on which the respondent in the present se mainly relied), in nowise interfered with this view. In that tase, land was held by trustees solely for the purposes of recrea- tion, and it was held that it conld not be used, even temporarily, "safair for the sale of cattle, a purpose which would, while it listed, prevent its use for recreation. In my opinion that case toes not govern the present,

Having regard to the general law applicable to land held by 'tustees for public purposes as declared by these authorities, and

to the express provisions of see. 5 of the Public Panky. 1854, and to the power to grant leases for terms not three years, recognized by the Trustees of Public Lands Ae 1869 as existing in trustees of lands granted upon trust specific purpose "and for no other purpose," I am of that the appellants are entitled to permit the use of the res in question for any lawful purpose not inconsistent with its when required, as a place for holding athletic sports, and in pi ticular for any purpose which, while not interfering with such as, is conducive to the main object of the trust, for instance, raising funds by way of rent, which may be applied to make land more useful for carrying out that main object. In view of the Statutes I cannot think that the words "and for no othe purposes" ought to be construed as prohibiting the use of ayy part of the land for any purpose other than athletic sports. Such a construction would be contrary to the general law applicable such trusts. Nor ean I see any sound basis for the eonslasn that those words exelude from what would otherwise be legitimate uses the holding of sports which are not athletic.

The next question for consideration is whether the use of the land for horse and pony racing is inconsistent with its use fr athletic sports. The obvious answer to this question is that i must depend on circumstances. It is plainly not incomssten with the use of land as a racecourse that the space encircled b the racing track should be oceasionally used for cricket, Noris it inconsistent with the use of such an encireled space as acric ground that the track should oceasionally be used for racing. is equally obvious that the two sports could not ordinarily carried on at the same time, except in distinet parts of the land,

For these reasons I am of opinion that the declaration cont in the judgment under appeal is too large, and that it should hare been limited, if the circumstances were such as to justify th bringing of the action at all, to a declaration that the appellants were not entitled to use or oceupy or permit the use or oceupation of the land for horse racing and pony racing except: under em ditions not inconsistent with its use for athletic sports whet required for that purpose. I will state later the precise termes the declaration which I think should have been made,

'The appellants, however, contended that their agreement with harpe does not transgress this rule, that they have never indeed violated it, and that the litigation was unealled for, and the action should have been dismissed. Itis necessary, therefore, to consider the facts proved in evidence. It appeared, as indeed might be

ofthe Crown, that the land when originally granted was in a state entirely unsuited for carrying on sports upon it, and that the trustees had been obliged to raise money for the purpose of jnprovements, some of which they had raised on mortgage of the land itself.

The agreement with Sharpe, which is dated 18th January, 1903, ipulated that he should have the right for a term of three years from Ist December, 1902, to use, oceupy and enjoy the privileges snd advantages of occupation as lessee of the cricket ground, with sil buildings and improvements, for the purposes of bieyele racing snd such other lawful sports, pastimes, and purposes as he might desire on every Saturday evening during the term between 7 and -Ipm.,and should have the further right or option of using the

• lind for any of sueh purposes on any Wednesday afternoon during

the term from noon until 6 p.m. upon giving the trustees fourteen thys' previous notice in w my such Wednesday afternoon, "provided always that the said ground is not otherwise engaged or required for some purposes by the trustees or by any person approved by them." I think that this proviso must mean that the requirement of the ground by the trustees must be notified to the lessee when he gives his _fomrteen days' notice.

The lessee was, in addition, to have the right to usea portion of the ground deseribed as "that portion heretofore used for pony au horse racing" between the hours of 5 and 9 every day during the continuance of the agreement, excepting Sundays and such sther days as the trustees might require the ground or permit it tobe used for other purposes for matehes, sports or other pastimes fommencing or announced to commence at or before 1 p.m. on any tay during the continuance of the agreement.

Trappeared that the racing track encircles the land prepared You m 45

jnferred from the nature of the grant, which was of waste lands Qonssuann,

for use as a cricket field, which is also encineled by a hej tm inside the racing track, and that cricket matches and fies, matches coald not be played while racing or trining of helene was going on. Nor could eyele-training and horse-tnitin carried on simultaneously. There was, therefore, a possible inter ference with the right of members of the general puble might desire to use the land for such purposes. But the Judge who heard the case thought that, if there was any ita ference, it was of a most minute character. Stil, in my jl

purpose for which it was granted. There was therefore suficeat ground for bringing the action.

For these reasons I think that the judgment should be vari by substituting for the declaration of right contained ir declaration that the appellants are not entitled to permit hore racing or pony racing to be carried on in the land in the ment of claim mentioned, except by way of incidental use a so as not to interfere with the use of the said land for the pur poses of a reserve for cricket and other athletic sports, end in particular are not entitled to permit horse racing or pony raci to be carried on in any part of the said land in which the use occupation of such part for such purposes would interfere with the suitability of the land in general as a place for carrying cricket or other athletic sports, or to permit any part thereof to | be used for such first mentioned purposes at any time when suth part is reasonably required for such sports, or ab any time whet such use would interfere with the reasonable use of any otlet part of the land for such sports. ,

As the plaintiff has established his right to bring the action but has failed as to a substantial part of his claim, there should be no costs either in the Supreme Court or of this appeal.

Barron J. The Chief Justice has just stated so fully the contentions of the parties, and the provisions of the Statutes cited, that I need not say anything on either score An ine junction having been refused by Real J., and that be

decree not having been appealed from, the question }

iether the declaration made by him on the hearing as to the gaits of the parties, which declaration is affirmed by the judg- nent of the majority of the Full Court, ought to stand, and, if wethink there has been a breach of trust, whether the declaration

counsel for the respondent in his argument that the words "and for no other purposes whatsoever" enlarge the meaning of the preceding words of the trust, "to hold. . . .as a reserve for ricket and athletic sports." The words of prohibition may give emphasis, but I do not see how they can add tothe meaning. To 'ay that this grant is to be held as a reserve for cricket and athletic sports cannot mean that it may be held asa reserve for other sports. Its purpose is to be held as such a reserve and not any other kind of reserve. If I hold land "in trust for A" without more, I am no more entitled to give the benefit of it to B than if I held it "in trust for A. and for no other person whom- sever."

Bat the question is, what is prohibited by a trust in these terms? In Attorney-General v. Great Eastern Railway Co. (1), "Tord Blackburn, discussing Ashbury Railway Carriage and Iron (h.v, Riche (2) says: - "That case appears to me to decide at all

• events this, that where there is an Act of Parliament creating a corporation for a particular purpose, and giving it powers for that particular purpose, what it does not expressly or impliedly authorize is to be taken to be prohibited." And he went on to say, "I quite agree with what Lord Justice James has said m this first point as to prohibition, that those things which ate incident to, and may reasonably and properly be done under the main purpose, though they may not be literally within it, would not be prohibited." So much then is implied in the grnt. But does the implied power go further? The earliest aise cited to us was R. v. Leake (3). A Statute had vested lind in comtnissioners for drainage purposes. A continuous user Of part of this land by the public as a way had taken place, and _ itwas claimed that such user was sufficient evidence of dedication

0. 5 App. Cas., 473, at p. 481 (2) LR. 7 HL, 653. (3) 5 B. & Ad., 469.

• First, as to the construction of the grant, I cannot agree with Quinssayp.

H.C. or A. of that part by the commissioners as a highway, Ansyg = the affirmative the preliminary question, whether the eyi Dows Would have been sufficient to prove a dedication in the eng Arronvsy- Ordinary owner, the Court then decided in the afimatis Greens, main question, whether having regard to the purposes for yj Quesxsrasp, they held the land, the commissioners were eapable of del fartong. ibasa highway. Parke J. said in his judgment (1): «If th land were vested by the Act of Parliament in commission y that they were thereby bound to use it for some special purpo incompatible with its publie use as a highway, I should bay thought that such trustees would have been ineapable in point

Jaw, to make a dedication of it; but if such use by the publie not incompatible with the objects preseribed by the Act, then

think the commissioners have that power." This passage se to place the matter on a broader basis than Lord Blackburn

in Attorney-General vy. Great Eastern Railway Co. (2), probably the difference is more apparent than real. For considerations suggest themselves : - first, that things may be "incident " to the main purpose - may be "impliedly authoriad

• if they are not "incompatible" with that purpose; secondly, that if there is a distinction in terms, it has ben sufficient for the purposes of many cases to declare that things

authorized, because in the particular instances it has not necessary to consider whether there are not uses compatible wit the main purpose, not quite implied in the grant, whieh neverthe less are in the circumstances not prohibited. At any rate, Par Js statement of the law has often been cited, and J cannot fi that any effort has ever been made to qualify it or to eut it do A. L. Smith LJ. in Foster v. The London Chatham and Dover Rai way Co. (3) quotes the passage and relies on it, though hal cat might perhaps have been decided as it was, without resorting so broad proposition, and the learned Lord Justice evidently placed great reliance on it, as will be seen in Jn re Gonty aml Manchester, Shefield and Lincolnshire Railway Co, (4), where railway company were held entitled to give a right of way oe

(1) 5B. & Ad., 469, at p. 478. (3) (1895) 1B, 71 (2) 5 App. Cas., 473. me (4) (1896) 2.Q.B., 439.

hands they had acquired under the Lands Clauses Consolidution H.C. or A. eis,on the ground that to do so was not inconsistent with the 1%. ses for which the lands were taken. In giving judgment pyac Jord Beker, then MLR,, suid (1): "Then it is suggested that the oy, jlway company cannot give this right of way. If to give that Gusrex. ight of way were inconsistent with the purposes for which they Quurssiaxp. taking this land, then they could not give the claimant that right... . . Looking at the cases that have been cited tous other than the case of Mulliner v. Midland Railway Co. (2) they are direct authorities, as it seems to me, particularly the Grand Junction Canal Co. v. Petty (3), that the company cangive this right of way, because it is not inconsistent with any purpose for which they have bought the land." In the same case AL Smith LJ. (4) put the matter again in the terms stated by Parke J. in R. v. Leake (5): "If such use by the public be not 'incompatible with the objects prescribed by the Act, then I think it lear that the commissioners have that power." And Rigby Id, in eoneurring, pointed out that Mulliner v. Midland Rail- amy 00, (2) in no sense conflicted with the view which the Court

In the ease cited by Lord Esher, Grand Junction Canal Co. v. Paty (3), decided in 1888, it was held that land acquired by a 'nal company under an Act of Parliament for the purposes of a towing path might be dedicated by them as a public footpath, subject to its use by the company as a towing path, Here again Ry, Leake (5) was approved and followed. Lord Esher MR., sid (6): "I adopt what that learned Judge" (Parke J.) "there laid down." He cited the passage quoted above, and said, "I think, therefore, that the case comes within the principle laid down in Rv. Leake (5), and that, the company could legally make the 'edication, . . . It must be, I think, a dedication to the 'piblie of the towing-path, for the purpose of such user as a foot- With as will not interfere with its ordinary use as a towing-path ly the company." Lindley LJ., in the same ease says (7): "The

(1) (1806) 2 Q.B., 439, a 4) (1896) 2 Q.B., 439, ab p. 448. By Ge pe ayy 23 ae 5 Rye yh se apa (9) 1QBD., 273, (6) 21.Q.B.D., 273, at p. 275.

H.C. or A. true principle appears to me to be laid down in the 1905. Parke J. in that case" (R. v. Leake).

Dows 'The Attorney-General v. Teddington Urban Council armgsny. ©28¢in which land had been acquired by an urban authority Gasanal, the powers of the Public Health Act 1875 for the purp

ground. Romer J. held that the council could so use his judgment occurs the following passage, which is material in its bearing on the present ease (2): - * OF course (that is the council) "could not use or deal with it in sucha as to prevent or substantially interfere with its immediate us fi sewage purposes whenever it was needed for those purposes. B subject to that exception . . . I do not see how it wasine sistent, for the purposes for which they acquired it, to use ii any lawful manner in which in its then condition it could used, provided it did not substantially interfere with the main purpose of drainage for which it was ultimately wanted. Iknor nothing which makes it unlawful for a council such as these defendants to permit vacant land in their possession, and not the time required for the ultimate purpose for which acquired it, temporarily to be used as a recreation ground, vided care is taken to prevent any rights being acquired over i by the public or otherwise which would prevent or interfere wi the council using it for such ultimate purposes whenever required! 1 am of opinion that, although, as will appear, the agreet entered into between the appellant trustees and Sharpe was! a breach of trust, and that under its operation the appellant have been guilty of further breaches of trust, I cannot $ that it follows that pony racing or other sports not named in the ; grant cannot be carried on under any circumstances so a5 to be compatible or consistent with the trusts of the grant. I should : think it possible to "use or deal with" the Jand "in such om as" not "to prevent or substantially interfere with its us for" the expressed "purposes whenever it was needed for those Pl (1) (1898) 1 Ch., 66. (2) (1898) 1 Ch, 68, at p. 7

vs? [am of opinion, therefore, that the declaration in the fare of Real J. is too wide, and should be varied.

'The case of Attorney-General v. Corporation of Sunderland (1) was cited, but does not in my opinion throw any light on the resent question. Land was held by the defendant. corporation aily "as public walks and pleasure grounds" 'The Court of Appeal decided that they could appropriate part of the land not aaly as a site for a museum and conservatory, but also as a site

~ fora free library, all these objects being held to be conducive to

the better enjoyment of the public walks and pleasure grounds

~ ssuch, Ido not think it can be held that pony racing on this

serve is "conducive" to its better use for cricket and other tihletie sports. 'The profits of pony racing may be so, but in a different sense, and not in the sense that is material. But if yoy racing is not conducive to the expressed purposes in the nse maintained, it may nevertheless be consistent with the pur- poses for which the land was granted, to use it for pony racing ina manner which would not "prevent or substantially interfere vith its immediate use" for the expressed purposes "whenever it ras needed for those purposes."

Now the leading facts, so far as the present case is concerned, of Attorney-General v. Hanwell Urban Council (2), appear in a few words of the judgment of Lord Alverstone, then Master of the Rolls (3). "The defendants' predecessors, and therefore the defendants, acquired the land under statutory powers and were suthorized to acquire the land for the purpose of using it for the disposal of sewage. It turned out that two acres of the land so aired were not fitted for sewage purposes, and thereupon in the year 1897 or thereabouts the idea occurred to the defendants that they might use these two acres, not for a merely temporary purpose, not for anything in connection with sewage, but for the Purpose of permanently establishing thereon an isolation hospital for infectious diseases." It was held that, although the two acres ete unfitted for the purpose for which the whole area was quired, the local authority could only use them permanently for purposes consistent with those for which they originally

(20h. D., 634. (2) (1900) 2 Ch., 37. (3) (1900) 2 Ch., 337,at p. 382.

acquired them, and the Court of Appeal upheld the decison y Kekewich J. granting an injunction against the propose ug It was plain that such user as this local authority contemplate) was wholly incompatible with the purpose for which the land yy held.

It is unnecessary to refer at length to the ease of Atty, General v. Mayor &e. of Southampton (1). 'There a corporatin was directed by Act of Parliament to cause a pieee of ground be drained and levelled, and kept in a proper condition for th purpose of public recreation. Stuart V.C. restrained the corpon. tion by injunction from permitting a cattle fair to be held on th land. The correctness of this decision has never been question from the Bench, and it obviously was inevitable in the parti circumstances. A trust for reereation generally implies that le land must be open for that use every day. That is not so inth present case, and I take the same view of Attorney-General Mayor é&e. of Southampton (1) as Cooper C.J. did in the Full Court of Queensland. :

Having referred to the principal cases, J find that the statement of the law by Parke J. in R. v. Leake (2) is reeognized as of unchallengeable authority, and that in Attorney-General y, Ta- dington Urban Cowneil (3), a case which is not unlike the present, apart from the agreement with Sharpe, Romer J, it 1898, has applied the same principle. And I think that, whenthe present agreement is out of the way, the two cases mentioned will be found to be a safe guide to the trustees in determining as to their future action.

Now, as to the agreement, it is impossible to escape the conelt- sion arrived at by my learned brother, that it does not sufficiently protect the public in their right to use the land for orickel and other athletic sports, The agreement itself amounts toa more than technical breach of trust both in respect of the times at which, and the extent to which, it puts the trust premises out of the control of the trustees, and prevents their being used for the expressed purposes of the deed. In view of the near expint tion of the term of this lease or licence, and the fact that the

(1) 1 Gif., 363, (2) 5B. & Ad, 469, (3) (1898) 1 Ch., 66.

tandonment of the injunction application practically confines the ee to a declaration of the rights of the parties, I think I ould not say anything which might be taken as a statement of ite preeise course open to the appellants in the future. 'They 'ist be guided by the decree as varied, and I agree with His

hecosts. In the difficult circumstances which confronted the rustees, Iam not surprised at the error into which they have jnocently fallen.

s OCoxnor J. The Statutes to which we have been referred uve only an indirect bearing upon the question to be determined. See. 5 of the Public Parks Act 1854, which declares trustees iute owners except for purposes of alienation, eannot enlarge 'the scope of the trust. The powers of the trustees as owners "aust be limited by the terms of the deed creating the trust. In the same way the powers of leasing the trust lands given under 'the Drustees of Public Parks Act 1869 cannot be construed to "ithorize trustees to allow their tenants to put the trust lands to nse outside the terms of the grant, nor could the consent of the ) Attorney-General under sec, 8 of that Act render a lease for such "auselegal. In every case the extent and limit of the trust is to found only in the document which creates it. 'The deed under "nsideration defines the scope of the trust in these words : - EB - do hereby grant unto Thomas Joseph Byrnes &e. ... . (description of Land). . . .to hold unto the said Thomas Joseph Byrnes &e. (and others) for ever as trustees

• Yielding and paying (pepper corn rent) upon trust as a tmsave for cricket and other athletic sports, and for no other Jurposes whatsoever." Tithese words created merely passive trustees, with a power to Prmit the lands to be used for the purposes named "and for wother purposes whatsoever," the negative words would afford sitong support to the respondent's contention. In my view the isnot merely permissive: It imposes upon the trustees con- ions as to draining and alignment which involve active duties 'ulolding the trust lands so as to earry out the purposes of the Mt Their duty then being "to hold" the lands in trust "as a

'Honor in the terms of the decree which he proposes, and as to Qusunstanp.

H.C. oF A. yeserve for cricket and other athletic sports and for no 1905. u

<= _ purposes whatsoever," two questions arise - Whatare their Dows and have they on the facts proved exceeded them ? T vast much impressed by Mr. Lukin's argument that it would be inp Guvrnan sible to give a meaning to the negative words of the trust if thy Querxstanv. were not to be taken as prohibiting any use whatsoever of th ocamers, lands other than that expressly allowed. But on considerai that difficulty becomes less formidable. The deed must be asa whole. The trustees have to comply with the condition of draining the ground; they must form and maintain it. 'The lar has recognized in the Brishane Cricket Ground Act 1801 tht there is a mortgage debt on the land, and therefore inte to be paid. All this implies that an annual ineome innstbe found by the trustees. The strict reading of the deed contended for b Mr. Lukin, and upheld by Mr. Justice Real, would dlose sources of revenue except those derived from cricket and oth athletic sports or from sources ancillary thereto. Tt would be impossible to let the ground, - say for such purpose as an evening concert, or to let any space on the ground or buildings for adverti- ing purposes, or for purposes of agistment. In fact such a reading would prevent the temporary and casual use of the ground formany purposes, which, while bringing in revenue, could not in any way interfere with the use of the ground for the express purposes the trust. A construction which leads to such eonsequeneesought not to be adopted unless there is no other reasonable construction to be found. The case most in point for the respondent is Attorney-General v. Mayor &e. of Southampton (1). That det sion turned upon the express words of the Statute defining the duty of the corporation in regard to the cricket ground there im question. The holding of the cattle fair on the cricket growl was so plainly contrary to the express directions of the Statute that there was no possibility of any other construction than th adopted by the Court. It has been urged by the appellants tht the expression "and for no other purposes whatsoever," need 20 necessarily be construed as imposing a limitation narrower tht that to be implied from the positive words defining the purps® of the trust, and they cite the observations of Lord Watson ™ (1) 1 Gif, 363. i

Attorney-General v. Great Eastern Railway Co. (1) in support oftheir contention, That was a case in which the powers of a nuilvay company were conferred by Statute, and in reference to these powers Lord Watson says: "'That principle, in its appliea- tio to the present case, appears to me to be this, that when a nilway company has been created for public purposes, the legis- ature must be held to have prohibited every act of the company which its incorporating Statutes do not warrant either expressly orby fair implication." That appears to be a correct statement oftherule of interpretation in such eases. It would seem, therefore, that Statutes authorizing the taking of lands for railway purposes ust be read as if containing an express prohibition against the use of the land for any other purposes. Or, to put the proposition inanother form, the only authority given by the Statute in such cases, is to use the land exclusively for railway purposes. That mle of interpretation would seem to be equally applicable to the deed under consideration, and, in that ease, the prohibitory words lied on by the respondent would have no more force than the word "exclusively." Read from this point of view, the eases in which powers conferred by Statute on railway companies and public bodies, even although without express prohibition against other uses, become directly in point. From these cases a reason- able rule of construction is, in my opinion, to be gathered. In Attorney-General v. Teddington Urban Council (2) the land was ajuired and held for sewerage purposes, but on a portion of it not at that time required for those purposes the council had made a temporary path, and placed benches for the recreation of the public. Mr. Justice Romer refusing to restrain the council from such use of the land, said (3): "I know nothing which makes it unlawful for "council such as these defendants to permit vacant land in their Possession, and not at the time required for the ultimate purpose for which they acquired it, temporarily to be used as a recreation Sound, provided care is taken to prevent any rights being 'cquired over it by the public or otherwise which would prevent

• interfere with the council using it for such ultimate purposes

Whenever required." In Foster v. London Chatham and Dover

(1) 5 App. Cas., 473, at p. 486. (2) (1898) 1 Ch., 66.

H.C. or A. Railway Co. (1), which has been cited by my leamed bm 15. Chief Justice, Lord Halsbury says (2): "T for one entitely Dows that there is any established proposition oF law which preven

Anwisey. the raliway company using their land and their atches for ag

Gesmxat, collateral purpose that may give profit to them." 'The la em oF :

Qveexstasn, ciated in these eases has been laid down in the same ter

ovomors, Many others which were cited to us. 'The principle to be extaes from all of them seems to me to be this - that, so long as tras hold and use the land for the puxposes of the trust, thei nothing to prevent an incidental or collateral use for other poses including profit to the trust provided that such use j inconsistent with, and does not interfere with, the trust 'purpo and that no rights are given to other persons, which are incon tent with or which will authorize their interference with th trust purposes. Applying that principle to the interpretation of the instrument of trust in this case, the position may be ths stated. So long as the trustees hold and use the land for purposes of the trust there is nothing to prevent the land used either by themselves or their tenants for any other law purpose, such as horse racing, provided that the use of the for that purpose amounts to no more than an incidental or eal

sistent with and does not interfere with its use for erieket other athletic sports. The real difficulty in the case lies in the application of the principle thus stated to the facts proved, in the answer to the question is, or is not, the use of the

to examine the agreement somewhat in detail. From its terms it appears that the ground is lighted by electricity f

(other than fixtures) of the electric lights ereeted on the grou for the sum of three hundred and fifty pounds. 'The lights then became his property subject to the trustees' right at a rental to use them for the purposes of the ground when Sia (Q) (1895) Q.B., 711. (2) (1895) 1 Q.B., 7H), at pS

«ot using them. It seems therefore to be contemplated by oth parties that the ground shall be used regularly and tically by night as well as by day for the purpose of ertain sports, such as bieycle contests and pony racing, which lid be earried on by night as by day. The lease, or licence, it ofno moment how it is deseribed, is for three years from the December, 1902, and it gives Sharpe a right to use the ground her with all the buildings and accommodation thereon for purpose of bieycle racing, "and such other lawful sports pas- fimes and purposes," which include horse racing, every Saturday ening during the term between 7 pm. and 11 pm. It was wards agreed that Monday evening should be substituted for Saturday evening in this clause. He also has the right mm giving fourteen days' notice in writing to the trustees to we the ground on Wednesday in each week between noon mi 6pm, provided it is not required by the trustees or persons tithorized by them at the same time. If by reason of wet her, or any other cause, the ground is not fit on any Ssturday night or Wednesday afternoon for the purpose men-

timed, Sharpe has the option of using it on any other night or aftemoon of the ensuing week without additional charge if the gound is not otherwise engaged. On the Saturday night and Wednesday afternoons and on the days substituted for them, Sharpe, when he uses the ground, is entitled " to use, occupy, and iy the privileges and advantages of occupation, as lessee," of the whole of the land with its buildings, seating accommodation, ing, and other improvements. On every day except Sunday, srany other day on which the trustees may require the ground for themselves or their licensees, Sharpe has the right to use hveen 5 aan. and 9 a.m, that portion of the ground theretofore ted for pony and horse racing. As to Wednesday afternoons the trustees are to be liberty to arrange ericket and football Matches, and in such cases players to a limited number are to be ulmitted to the ground free of charge. On these occasions mem- bers of the public who wished to see the play would apparently tbeadmitted free of charge if admitted at all. Finally, the tstees reserve to themselves the right to use the ground at any tine for the purpose of any inter-national or inter-city matches

H.C or A. upon giving Sharpe fourteen days' notice of the requiem INS, There is no evidence that the trustees ever required the tse f

Dows land for such a purpose on any Monday evening, nor is gu

Arvivey. Occasion likely to arise in future. 'Taking the practical

oom the agreement as a whole it amounts to this. The sys

Quexsstax, of the whole of the ground is permitted at least one evenin

ovomers, each week during the term for the purpose of pony racing' business, with all the accompaniments of a racecourse, to the,

the whole of the ground is allowed to Sharpe on the other noons referred to for the same purpose subject to certain tions, and also the use of portion of the ground every mo during certain hours for purposes ancillary to pony racing, far as Monday evenings, substituted for Saturday evenings aw concerned, Sharpe appears to have fully exercised his tig

it seems that he has substantially exercised the rights stipy for on other days of each week. Under these circumstances it! evident that the use of the ground for the purposes of pony ruc was a most important and substantial use of the ground, and not at all a mere incidental or collateral use. It is difficult to

cised without substantially interfering with the use of the groam for the purposes of the trust. It is even more difficult to how it can be said that Sharpe's use of the land under the ag ment is consistent with the declared purpose of the trust, namely to hold the land exclusively for the purposes of cricket and othe athletic sports, when it is apparent that the carrying on of thee

management of the ground bringing to the trustees that rental of ten guineas a week, which was their most important and permanent souree of revenue. None of the decisions rele on by the appellants cover such a case as this. In all the ass cited by them the use held to be lawful was either a temporsy use of some portion of the property not then required for the purposes of the trust, or was in itself an incidental or eolateral se 'The underlying principle of those cases is well stated by!

Halsbury in Foster v. The London, Chatham, and Dover Railway

'(u(i)in these words: "It is said that the use which the defend- sais make of this particular piece of land is one not authorized by "the Statute. Expressly authorized by the Statute it is not. No inate or ancillary use of such part of a railway company's opty is ever expressly given by Statute; but I think it

"ight just as reasonably be contended that a railway company Qvesssuaxo.

"ge not entitled to sell the hay which grows on their banks or tattings so as to make something out of it." 'That is to say, " yhen trustees are called upon to justify a particular use of the rast property, they must either show the use to be authorized by

• thewords of the trust, or they must show that, although not author- -iwedby the words of the trust, it is a use merely incidental or ellateral, and does not interfere with, and is not inconsistent with, the purposes of the trust. Many instances might be given of such 'uss, not directly authorized by the language of this trust, which jetwould be permissible within the principle referred to by Lord Halsbwry. Spaces on the buildings or fences might be let for ulvertising purposes. The public might be allowed to use the ground asa pleasure ground, so long as sports were not interfered vith, Small portions of the ground, not required for sport purposes, night be let for shops and stalls. The ground might be let oeasionally for purposes of concerts and theatrical entertainments, orpublie amusement of any kind, and one can well understand that under certain cireumstances, and under proper conditions, it night be let without breach of trust for the purposes of a race necting, It is unnecessary to multiply illustrations. In every instance, we must get back to the words of the deed, and, if the Wesought to be justified is neither for the purpose of athletic Sorts nor some purposes ancillary thereto, then it must be shown
• thatthe use is not inconsistent with, and does not appreciably interfere with the purposes of the trust, and is in itself merely an ~ itcidental or collateral use, so that it may be truly affirmed that,

whwithstanding such use, the land is being held by the trustees 'Substantially for the purposes of the trust. Having regard to the terms of Sharpe's agreement, and the evidence of his exercise of rights under it, I find it impossible to hold that the use of the _'nst lands allowed to Sharpe by the trustees ean be justified. In

H.C. or A. my opinion, therefore, the trustees, in making that agn 185. have exceeded their powers, and have been guilty of ah Dows trust. I agree with Real J. that no injunction should be grant

'Arreavey. 80d that, under the circumstances, no more is required

Grama, make a declaration as to the rights and obligations of the

Qurexsraxn, But, in my view, for the reasons I have given, His Honor'sd

tion is too wide, and I agree that it must be varied in the ter

Judgment uppealed from varied, Noo in either Court,

Solicitors for appellants, Roberts & Robert Solicitors for respondents, Leeper & Biggs.

(HIGH COURT OF AUSTRALIA.) POTTER OBJECTOR, asp DICKENSON APPLIC:

ON APPEAL FROM THE SUPREME COURT OF VICTORIA. H.C. OF A. patents Act 1890 (Victoria), (No. 1128), secs. 15, 28, 29, 33 - Applicationfor

tes Opposition to ineue - Award of costs by Commissioner - Right of appet ae officer and from him to Supreme Court - Meaning of "costs meer 'August 16, * Patent Agent - Witnesses - Qualifying fees - Rules of the Supreme Cow I 17,18." (Victoria), Order LXYV., r. 27 (9).

• • • off rider male Semble, an appeal does not lie to the law officer from an 0 Grimtn c.., Sarin sii' Commissioner of Patents under sec, 29 (3) ofthe Patents Act 180 i

for the payment by one party to an application for a patent of fe