Hutchinson v Scott [1905] HCA 59

Hutchinson v Scott [1905] HCA 59 - HCA 1905 case summary — Zoe

[10]

In May, 1897, Samuel Seberry, a conditional lessee of a certain block of land under the Crown Lands Acts, entered into an gn: ment with one F. T. Winters, the material portion of which is gs follows - - * Whereas ithas been agreed between the parties herd that the said 8. Seberry for the consideration hereinafter appearing _| shall enter into this agreement under the provisions of section 33 of the Mining on Private Lands Act 1894 with the said RT Winters. Now it is witnessed that for the consideration hereinafter _ stated the said S. Seberry hereby gives and grants unto the sid F. T. Winters his executors and assigns full liberty power and authority to take and retain possession of the land more particu larly described in the schedule hereto" (being 15 acres di the conditional lease already mentioned) "for the purpose of searching for gold and other minerals and for all other mining purposes for the term of twenty years from the day of the date hereof, and in consideration of the premises and powers liberties and privileges hereby granted the said F. 'T. Winters hereby agrees to pay to the said S. Seberry the yearly sum of £15 to be payable in advance &e,, and also to pay to the said S, Seberry one-sixteenth part of the net profits to be obtained from the sale of the gold or other minerals raised from the said land" &c. Certain rights of ingress and egress over the lands comprised in the rest of the conditional lease were given to Winters, with liberty to erect all necessary buildings and machinery for the purpose of carrying a1 mining operations. In February, 1902, Seberry transferred his interest in the conditional lease to S. A. Hutchinson, one of the appellants, who in April of the same year transferred to his wife, the other appellant. In July, 1902, Winters transferred his rights under the agreement to David Scott. 'The latter, in November of the same year, transferred to C. S. MePhillany, who in May, 1903, transferred to the respondent. 'The respondentand her predecessors in title were in possession of the land the subject of the agreement, and paid rent to the appellants and their pre-

[35]

Sor attempted lease should be void or unlawful, or of preventing any Gash ttempt to exercise those rights from succeeding as between the leaseholder and persons deriving title from him, but to render any such transactions ineffective as against the Crown. The lessee o conditional lessee could not give a good title against the Crown, any more than a lease by any person not the owner would give a good title as against the owner. But there is nothing unlavful _ in the mere fact of a person who has no title giving a lease of land of which he is in possession, and there is nothing in that section to exclude the common law doctrine that a man cannot derogate from hisown grant. A person giving possession of land to another and accepting rent under an agreement cannot be heard to deny that that other person is his tenant. That was not seriously pressed for the appellants. But it was contended that the lease, if properly called a lease, was void because it was executed for an illegal pur- pose, that is to say for the purpose of searching for gold. The argument was put in this way. A gold mine isa royal mine and belongs to the Crown, and it is therefore unlawful for a subject to work such a mine; consequently any lease by any person of a gold mine to another for the purpose of working it is unlawful, There is no case in which such a doctrine has been laid down. The last ease in which the subject was dealt with was that of the Attorney-General v. Morgan (1), a suit by the Attorney-General to restrain the defendants from raising working or getting froma _ mine known as the Gavynfynydd mine in Wales any gold or gold ore, silver or silver ore, or quartz, or other substances containing those metals, without the licence of the Commissioners of Woods, Forests, and Land Revenues. 'There was also a claim for am account of all gold or silver already taken from the land. The injunction was granted as to removing the metals, but was limited to that; it was not granted as to the raising of the metals. After that, while the suit was still pending, the land was conveyed toa company, so that the main question failed, and the suit was only

[39]

H.C.or A. taken. But there is nothing in these Statutes to render taking 195. the gold any more unlawful than it was before. T hesitate y Horomssox much to come to the conclusion that it is unlawful for the own ccivg, of private land to dig for gold on the land, except in the sens ha

- in doing so he commits an actionable wrong which the Crownnay Sneed octrain by injunction, or for which it may recover damages, Bi, assuming that it is unlawful, the question remains whether i renders a lease, which is wrong in that sense, unlawful in the sense that it is incapable of enforcement, although it isin form an _ agreement for the mere purpose of enabling the lessee to do what the lessor himself might have done in a lawful manner by com: plying with the statutory conditions. 'The learned Chief Judgein Equity was of the opinion that the lease was not unlawful in tht sense, on the ground that there was no evidence of any intention on the part of lessor or lessee that the lessee should break the law, The law on this point has long been settled. I may assume forthe purpose of the present discussion that the unauthorized digging for gold was unlawful in the sense of unlawfulness which avoids « contract. In the case of Sewell v. Royal Exchange AssuranceCo, (1), decided in 1813 in the Court of Common Pleas, the doctrine was clearly laid down. That was a case of a policy of insurance on a ship. 'The insurance was in respect of an unlawful voyage, being at the time of the continental system. A Statute prohibited the voyage under the conditions under which it was to be made. Butit was held that that fact did not of itself avoid the charter party, nor did the fact that the ship was foreign built, because the defect in each ease might be cured on the return voyage. Lord Mansfeld said (2): " This vessel clearly is not entitled to the privileges of a British ship, but is to be considered as an alien ship. As such, she could not come to England with the cargo in question ; were it not that by the Statute 49 Geo. 3 c. 60, his Majesty has power to license ships to a trade directly contrary to the act of navigation, ie, to authorize alien ships to bring home this sort of cargo. Non constat, that this captain would have performed this voyage without obtain- ingsuch alicence. If there were any officer in the Azores authorized to grant it, the master might obtain it there : if not, he might wait fill such a licence was sent out to him from England. It does not

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Judgment (75 paragraphs)

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