Melbourne Harbour Trust Commissioners v Colonial Sugar Refining Company Limited [1925] HCA 15

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MELBOURNE, wharf and embankment - Limitation of action - Adverse possession - Termination

Melbourne Harbour Trust Commissioners v Colonial Sugar Refining Company Limited [1925] HCA 15 | Case summary | Zoe

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and bring up to date in one clear Schedule all that had been enacted by several statutes as constituting the Port and to make clear the boundaries of the Port in 1915. In any event, the 1915 Schedule is very distinct and, by reason of its trigmometrical lines and exact measurements, an exact delineation of the boundaries of the Port. - It appears by Part II. of the Schedule that what the Legislature was consciously doing in Part I. was marking "the outside boundaries." When that is borne in mind it is manifest that sec. 46 cannot be read as a subordinate section. Sec. 46, however, is not clear of some ambiguity, and needs help towards a complete construction. I do not think, however, that there is any ambiguity with respect to the questions directly involved in this case. But, as the argument for the Company has rested to a considerable extent on the vagueness of the section, it is well to consider it generally. It enacts, first, that the bed and soil and shores of the waters and the pieces or parcels of land within the metes and hounds described in Part I. of the Schedule, excluding Part II., " are hereby declared to have been vested in the Commis- sioners for the purposes of the said Act." Before going further, there is some ambiguity. What is meant by "the said Act." So far as concerns the section itself, the identity of "the said Act" cannot be discovered, because the only Act previously mentioned in the section is " this Act" and it is impossible that " this Act" can be intended by " the said Act." It is impossible because of the words "to have been vested," that is, vested before " this Act" existed. And, further, the contrast is immediately afterwards drawn by the use of the words "this Act." What, then, is meant by " the said Act"? Certain positions are definite. First, '' Commissioners " by sec. 3 mean " The Melbourne Harbour Trust Commissioners," that is, the Commissioners for the time being according to th context. Secs. 10, 11 and 12 exemplify this. That is to say, "the Commissioners" is only a short form of the full title and must! applied in point of time in accordance with the collocation. "the said Act " is prior legislation. The prior legislation, how r

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to inquire as to circumstances. If he measured and, as in the present instance, found that, starting from the well defined western boundary, the title measurements stopped short of the river, he would at once have to inquire further. A certificate is not the original source of title, it is evidence of title: and, in some respects, conclusive evidence. But once find a contradiction in the description itself, there arises an ambiguity that must be solved according to law, and that varies according to circumstances. What is admissible against one person may not be admissible against another. What is available for one purpose may not be available for another. In the present instance, the known facts are that in 1875 the Victoria Sugar Co. held a certificate of title which simply reproduced the Crown grant. That Company transferred the land to the present Company in 1888, and the present Company applied for a certificate of title in its own name, with certain amendments and upon a certain plan showing the land to be included by the Titles Office. The application was not acceded to in full. But, even in full, the plan lodged showed that the whole of the wharf and the strip now in dispute were part of the River Yarra, and that the Company's land for which the certificate was sought stopped short at the Yarra River by stopping short at the western edge of the strip in contest. The land certainly came to the present water's edge in the southern part; but that is conceded by the Trust. The plan (Cunningham's plan it is called and part of Ex. 6) upon the faith of which the certificate issued is the best indication and proof of what the Titles Office, at the invitation of the Company, meant by the otherwise ambiguous line and name " Yarra River.'' The figures which the Company invite the Court to reject fit absolutely the allotment when reckoned from the fixed western limit of Whitehall Street, and the eastern limit of the River Yarra as shown in the application map. But there is more. The dominant feature - if there be a dominant feature - in the certificate is contained in the words "being Crown allotment 4 section 8 parish of Cut Paw Paw 'county of Bourke." That is so, because the delineation in the

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non-existent. The old condition as to distance was not extended: it was reduced to 40 feet definitely. No alteration was made as to deviations. If the work was so substantially different as to be more extensive in the fairway, that would be a reason rather for insisting on a temporary permission only than for consenting by way _ of free gift to the private appropriation for all time of a portion of the main, and almost the sole, public water-way - none too wide at any time - of the City of Melbourne. Such an inference should not lightly be drawn in any event, and least of all in a conflict between private and public rights. In this case it seems to me, with great deference to the learned Judge from whom this appeal comes, that the contrary conclusion is irresistible. On the other hand, a consent temporary in nature, though indefinite, because no one could say when public interests might require the withdrawal of occupation, is quite understandable on both sides. Pending future requirements no then present objection was raised to helping private enterprise, and the private owners might well think the chances worth taking to stay where they were a considerable time without disturbance. But privileges are not infrequently clung to as if they were permanent rights. In my opinion, the permission of 5th May 1873 was that of a temporary privilege and not of a permanent right. As far as it was expressed, it was only in respect of the jetty or wharf. As to the strip the Company, by its express allegations in par. 8 of the statement of claim, alleges its inclusion in the Crown licence. The learned primary Judge took that view when he said: "The reclamation of the foreshore behind the wharf in the manner described was, in my opinion, a matter of course and essential to. the proper use of the facilities afforded by the wharf." As a matte of common sense, when Joshua Brothers in their letter of 2nd October 1872 spoke of reclaiming up to the fairway and also maki the pier, it was evident that consent to the pier would involve embankment of the shore (not its appropriation as owners) and also use of the embanked land in connection with the pier, so long as t pier itself was permitted to be there. Commercially speaking, was natural and inevitable. The jetty, from a business point view, connoted the usual adjacent buildings, and no doubt 4 would be well understood by both parties. The permission sought

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vunder which Cole's Crown grant was made. The origin and political purpose of that Act I have discussed in Williams v. Attorney-General for New South Wales (1). But whatever its purpose, its language is distinct. In its first provision it enacts "that within the Australian colonies the waste lands of the Crown shall be disposed of in the - manner and according to the regulations hereinafter prescribed, and i not otherwise." Sec. 2 made "sale "' essential to the conveyance - or alienation: of any estate or interest whatever in Crown lands. Sec. 3 is distinct that reservations of Crown lands may be made for - internal communication by land or water, or as " the sites of public quays or landing-places on the sea-coast or shores of navigable streams" or other public purposes. In order to maintain the position that sec. 4 of the Land Act of 1869 (No. 360) did not apply to the " shores" of the sea or navigable rivers, it was very strenuously contended that the words " quays " and " landing-places " have no significance in that connection. It was said they properly applied - to such places on private property. But the Act 5 & 6 Viet. c. 36 dispels that idea. As used in the Imperial Act they were at the time of the commonest import in England as public places. See, for instance, Pulling's Laws of the Port of London, 2nd ed., 1854, at pp. 353 et seqq. As early as 1856 the Circular Quay of Sydney was judicially recognized as a public wharf, and, indeed, it was proclaimed as such under 8 Vict. No. 16 (see Willis v. Campbell (2) ). In 1852, by Act 16 Vict. No. 12, relating to " Harbours," a num! 7 of Acts were repealed and regulations for the government and preservation of ports were enacted, and by secs. 5 and 25 navigable creeks and rivers were included. See. 25 also defined " quay " as meaning " any pier, jetty, quay, wharf, or landing-place." We find insec. 4 of the Land Act 1869 more than the unrestricted prohibi of sec. 1 of the Act 5 & 6 Vict. c. 36 suitably adapted and apply to "lands for the time being belonging to the Crown " - the lat terms to denote all lands of the Crown,

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that in the opinion of the harbour authorities public interests ] required the occupants to vacate the land, and therefore, assuming, as I find to be the case, that a revocable licence existed, the Statute of Limitations does not apply to the wharf. The case is quite - different from President and Governors of Magdalen Hospital y. Knotts (1), where in law the occupant was always a trespasser or, as Lord Cairns put it (2), "' without any title whatever." There the hospital authorities could have ejected the occupants at any moment without warning, because the only ground on which possession - was given and taken was inconsistent with a licence; it was a tight of lease excluding the owner for the whole term, or it was a nullity. As it was a nullity the occupant held as in his own right all through, but was in Jaw a trespasser all through and the supposed landlord could and should have ejected him. Here it would be impossible to regard the Company as a trespasser at any moment, j or as anything but a licensee, liable on reasonable notice, having regard to public interests, to be ejected, but until then continually acknowledging the title of the harbour authorities to the wharf. As to the strip it is not so obvious. As already stated, the licence only expressly referred to the wharf, and the strip (northern portion) was occupied as accessory to the wharf. The Company, however, urges that the correspondence shows that its predecessors claimed a right by virtue of their title to reclaim the Crown's land to the fairway. Inferentially it is suggested that that means a claim to occupy followed by an occupation of the strip as of right and not by way of licence. Of course that is an inconsistent claim. Bi what does it amount to? It was an invalid claim: no authorit for it is found in English law. It is stated in an American wo of considerable value (Farnham on Waters and Water Rights (1904). vol. 1., p. 339), as to riparian rights, that reclamation where permi el should be accorded to the riparian owner, but the learned auth adds: "He cannot, however, by filling out without permissio obtain title to the made land, where the title to soil upon whi the filling was done was in the State." However, whatever is the la

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abandonment by the Company of its riparian rights. Restoration of the status quo ante means non-deprivation of former rights of

either party. Consequently, so long as the Harbour Trust chooses
to retain as its own property the wharf which it claims and which is an obstacle to the Company's right of reaching navigable water at that point, so long must the Company, until common law rights are superseded, be permitted to pass over the wharf to the water. _ Finally that right is to be subject always to whatever statutory rights the Trust may have, and may at any time exercise, to alter
existing common law rights. One phase, hitherto unnoticed, occurs to me, and I may refer to it. What effect on the Company's riparian rights has the new Act _ vesting anew the intervening land? It has not, in my opinion, _ entirely obliterated the Company's riparian rights, or made negligible the effect of the temporary arrangement as to those rights. The "nature and effect of that arrangement, and particularly as to the intention with which the acts were done, greatly affect the conclusion s to the character of the intervening tract, and as to whether it is to be considered in the circumstances as cutting off the Company's access to the river entirely. That is no necessary or just conclusion m the new Act. In my opinion the Company, even from the standpoint of the new Act, is a riparian owner with a right of access from every point of its land to the navigable water of the river. including a passage over the wharf subject as already stated.
Quacunque via, therefore, the declaration hereunder ought to be made, The Counterclaim. - The burden of proving title to the strip and arves rests, forthe purposes of the counterclaim, onthe corporation. t would have been very satisfactory had there been a plan drawn iting with precision the outer boundaries of the Port of ne as scheduled to the Act of 1915. But sufficient appears to satisfy the requirements of this case. If the strip and wharf are

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application for a formal licence were to be expected) ; that it says nothing as to the Joshuas' assertion of right to reclaim; that it makes a condition as to the length of the jetty; and that the permission " will'' be given " if such jetty be temporary only." The Messrs. Joshua followed up their success by a letter of 25th November 1872 to the Chief Harbour-Master, the precise words of which are important: " Dear Sir, - With reference to the pile pier which we are about to erect for the convenience of our proposed sugar-works - at Footscray, and for which we have received the permission of the Harbour Department, we respectfully beg to inquire whether the Government will allow us to push the jetty as far into the river as where the proposed wall to confine the fairway will eventually run." It appears that no such wall was in fact contemplated. By letters of 5th May 1873 the Chief Harbour-Master informed the Joshuas that the jetty might be extended 40 feet as applied for in the letter of 2nd October last. The letter of 25th November clearly refers to the same identical pier or jetty as had been the subject of the previous - letters, the pier or jetty which had been already permitted or was to be permitted; but Joshua Brothers wanted to extend the pier or jetty further into the river. There is no attempt in the letter to. get rid of or to qualify the condition of the Board that this jetty to be constructed was to be '* temporary only " ; and in my opinion, the word ''temporary" governs the whole actual or intended permission of the Board, whatever that permission may be worth. By " temporary " I cannot understand anything but that the jetty was not to be permanent, and (as a corollary) that the jetty must be removed when the Crown wanted it to be removed. To say that the letter of 25th November submitted a proposal for an " entirely different structure" seems to me not to be justified, except in a rhetorical sense. To say that the jetty was now to be permanent because it was to be more substantial than before would be idl The Messrs. Joshua simply took the risk, probably knowing ways of Government in such matters ; just as in Ramsden v. Dys (1) a man agreed with Ramsden for a tenancy at will and put: valuable buildings under a title so frail. The Joshuas erected the jetty for the purpose of their business, and for the benefit of those t

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estale or interest as an each case is hereby authorized and for none other." This section expressly applies to ail lands belonging to the Crown, whether under water or not. The bed and soil and shores of all navigable rivers (as well as other land) become Crown land on acquisition of a country; and, although the Land Act deals mainly with land available for settlement, I cannot accept the argument that it deals with such lands only. Part II. deals with alienation of country lands by licence and lease: but Part III. deals with leases and licences for other than agricultural or pastoral purposes, Under this Part III. the Governor was enabled to grant leases of Crown land for a term not exceeding 21 years and at a rent, "for sites of quays and landing-places," &c. (sec. 45): and by sec. 47 the Governor or any person duly authorized by him may grant a licence to enter any Crown lands "for any of the purposes for which leases may be granted under this Part of this Act." But, according to sec. 50, every licence under this Part shall not be for more than one year, and shall be subject to such conditions and to the payment of such reasonable fee as regulations impose. Up to this date, therefore, 1st January 1877, the plaintiff Company had no estate or interest in the land under the foreshore or under the wharf. When that land was vested in the Harbour Trust, the Crown had at most, merely intimated, in effect through the Board - of T.and and Works that it would not treat the works of the Company as to the jetty as a trespass; but that the jetty was to be temporary. What has happened since the Harbour Trust got the land to deprive the Harbour Trust of its right of action for possession? Even if we take into consideration what the Crown had done, and add to that what the Harbour Trust did (or failed to do), I can find nothing. The learned Judge below has been of the opinion that the principle - of equitable estoppel applies, and, in particular, he is impressed by the case of Plimmer v. Wellington Corporation (1). As his Honor has decided that he cannot give effect to the doctrine of equitable estoppel in face of the distinct language of sec. 4 of the Land Act 1869, I do not propose in this judgment to write a treatise on the subject of such estoppel ; but it might be misleading if I did not say, respectfully, that, in my opinion, the doctrine does not apply. (1) (1884) 9 App. Cas. 699. :

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I regret to find, however, that I am unable to concur with the declaration proposed by my learned brothers Isaacs and Rich in favour of the Company. We agree in the essential position - that the title of the Trust is not extinguished, and that the Trust is not estopped in any way from insisting on its legal right. But I cannot understand how we can consistently declare that the Company " is entitled but subject to the powers duties and authorities vested in" the _ Trust "to exercise the rights of a riparian owner in respect of the River Yarra over the land " in question and over the jetty "so long as the same remains." This either means that the Company has in some way acquired a new riparian right - a new quasi-permanent right as riparian owner on the east side of the land in question and the jetty ; or it means, because of the words which I have italicized, nothing. I can understand the Company being treated as still entitled to its "natural" riparian rights, along the east of the allotment of which it is proprietor, so far as those rights can be exercised despite the filling in of the foreshore by the Company; but the Trust has done nothing that entitles the Company to treat its riparian rights as transferred to a new place. The obstructions to the exercise of the original riparian rights were created by the Company itself of its own volition; not by the Trust. The cases referred to in support of the declaration rest ultimately on estoppel of others by their conduct (UUeswater Case (1); Attorney-General of Southern Nigeria v. John Holt & Co. (Liverpool) Ltd. (2); Attorney- General of Straits Settlement v. Wemyss (3) ); and there is here no conduct of the Trust that creates any estoppel (see Mellor v. Walmesley (4) ). Admitting that the Company never for a moment abandoned its riparian rights, never intended to abandon them, it does not follow that it acquired riparian rights at a new frontage further out in the fairway of the river. If the reclamation soil were temoyed, I assume that the original riparian rights could be exercised. pting what Lord Shaw said, in Attorney-General of Southern

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Judgment (466 paragraphs)