THE KING v. CUDDIHY.¹
TUCKER, C.J., DESBARRES AND BRENTON, J.J.
Crown lands—“ Ship’s-rooms ”—History and basis of title to land in Newfoundland—Various classes of land—Title as against the Crown—Effort of Statutes
in relation to “ Ships-room.”
A proceeding by the Crown to recover possession of certain lands comprised in what was known as " Ships-room." History and basis of title to land in Newfoundland reviewed.
In this case the following information was filed ex officio by the Attorney General:—
St. John’s (to wit): Be it remembered that James Simms, Esq., Attorney General of our Sovereign Lord the now King who for our said Sovereign Lord the King prosecutes in this behalf in his proper person comes here into the Court of our said Lord the King before the King himself, at St. John’s, in the Island of Newfoundland, in this same term and for our said Lord the King gives the Court here to understand and be informed that in and by a certain Act of the Parliament of the United Kingdom of Great Britain and Ireland, passed in the 51st year of his late Majesty King George the 3rd,* intituled “ An Act for taking away the Public Use of certain Ships-rooms in the town of St. John’s, in the Island of Newfoundland, and for instituting Surrogate Courts on the coast of Labrador and certain Islands adjacent thereto,” it is enacted that from and after the passing of the said Act, certain ships-rooms in the said Act mentioned and enumerated, situate in the town of St. John’s, as the same are laid down distinguished and named in a plan of the town and harbour of St. John’s in Newfoundland, dated October, 1804, and deposited in the Government House there, shall no longer be deemed and taken to be ships rooms and occupied during the fishing season as such ; but it shall be lawful for the same to be granted, let, possessed, as private property in like manner as any other portions of land in Newfoundland may be. Yet one John Cuddihy, late of St. John’s aforesaid, not having regard for the laws and statutes of this realm, since the passing of the said in part recited Act of Parliament, to wit, on the 1st of June, in the first year of the reign of his late Majesty King George the Fourth, and on divers other days and times between that day and the day of exhibiting this information, with force and arms at St. John’s aforesaid into and upon a certain ships-room, called the “ Lady’s Ships-room, No. 2,” situated in the town of St. John, being a ships-room in the said Act of Parlia-
¹ Newfoundland Reports, 1829–45, pp. 8–26. Cap. 45.
ment mentioned and enumerated, and as the same is laid down distinguished and named in the aforementioned plan of the town and harbour of St. John’s aforesaid, subject to the purposes and provisions aforesaid and in the said Act contained, did break and intrude, and then and there did unlawfully enclose and fence in with posts and rails a certain plot or parcel of the said “ Lady’s Ship-room,” bounded on the west by Queen Street, and being 24 feet thereby, and running across the said room on the south of the said plot 91 feet, and on the east boundary of the said plot running 50 feet, and did unlawfully continue in and hold the same plot or parcel of the said “ Lady’s Ships-room,” thence and until the day of exhibiting this information, unto the use of him the said John Cuddihy in contempt of his said late Majesty King George the Fourth and his rights, and also in contempt of our said Lord the now King and his rights, and against the form of the Statute in such case made and provided : Wherefore the said Attorney General, for our said Lord the now King prosecutes in this behalf, prays the consideration of the Court, here in the premises, and that due process of law may be awarded against the said John Cuddihy in this behalf to make him answer to our said Lord the King touching and concerning the premises aforesaid.”
To which the defendant pleaded not guilty.
The Attorney General laid before the jury an outline of the facts of his case ; and in support thereof called as witness.
GEORGE HOLEBROOK.—Is Surveyor General of this Island, and knows the spot of ground formerly called “ Lady’s Ships-room.” The plan of St. John’s now produced by witness is the original and true plan thereof referred to by the Legislature in 51st George III., c. 45, sec. 1. The defendant is in possession of a part of the ground laid down in this plan as “ Lady’s Ships-room.” Witness surveyed the part so occupied by the defendant, and has traced the extent thereof in the plan which he now produces. The encroachment actually includes 24 feet on the south-west boundary ; fifty feet on the north-east ; and 91 feet on the north and south extremities. The part comprised in these limits witness feels assured is a portion of what is laid down in the parliamentary plan of the town as “ Lady’s Ships-room” and the survey by which this encroachment on that ships-room was ascertained, was made about five years ago by witness, who gave notice thereof to the defendant by driving wooden stakes to designate the limits of the encroachment.
Cross-examined.—Has been Surveyor General nine or ten years. The plan referred to in the Act of Parliament was formed in October, 1804, at which time several parts of the ships-room included in that plan were in possession of private individuals. “ Lady’s Ships-room,” in particular, was composed of two parts : one occupied by residents in the town, and the other unoccupied.
Upon this testimony the Attorney General rested his case ; and to answer it Mr. Lilly, after having addressed the jury at considerable length, and with much feeling on the harshness of a proceeding under which the Crown now
attempted to seize into its hands a spot of ground which he was prepared to prove had been in possession of the defendant, and those underwhom he claimed, for sixty years, recalled as a witness :
GEORGE HOLEBROOK.—The manuscript-book now produced by witness is brought from the Government office, and is numbered Vol. 3 of the early acts and proceedings of the Government. Witness turns to a page of the said book in which there is an entry of authority, under date of 26th October, 1759, from Admiral Edwards (then Governor of the Island) to one Joseph Nowell to occupy and possess a spot of ground in St. John’s agreeably to the metes and boundaries therein described. He also produces a lease from Governor Sir John Duckworth, dated 23rd October, 1811, to Stabb, Preston & Co., of all “ Lady’s Ships-room,” extending 250 feet on Queen Street and 64 feet on Water Street, and bounded on the north by premises in the occupation of Martin Fitzgerald, and on the east by premises leased to Stephen Knight. The piece of ground which forms the subject of the present suit is not a part of the ground comprised within the lease to Stabb, Preston & Co., according to the boundaries set forth in that lease, although it does, in general terms, profess to be a conveyance of all “ Lady’s Ships-room.”
Cross-examined.—Cannot say positively that the lease to Stabb, Preston & Co. has been surrendered by them, though he believes that it has. On the side of Queen Street, opposite to that which forms the boundary of Stabb, Preston and Co.’s lease, there is ground which also belongs to “ Lady’s Ships-room,” according to the parliamentary chart or plan of it.
(The counsel for the defendant here contended, that under the lease to Stabb, Preston & Co., all the Crown’s interest in “ Lady’s Ships-room,” east of Queen Street passed to the lessees ; and consequently, that if there was more of “ Lady’s Ships-room” to the east than was comprised within the boundaries expressed in the lease, the lessees were still entitled to that excess, and the Crown accordingly estopped from claiming it, unless it could prove—what it had here failed to do—the surrender of that lease.
The Court considered there was but little force in this objection ; as, under a general rule of law, the grant must be construed most favourably for the King, so as to prevent anything from passing under the term “ all ” beyond what was contained within the boundaries particularly set forth in the lease. To give to the defendant, however, every advantage to which he might possibly be entitled, the point was reserved for future consideration, in the event of a verdict being obtained by the Crown.
The defendant’s counsel next called 2nd Witness—CORNELIUS WINTON. Is a subscribing witness to the deed now produced : and saw Thomas Nowell duly sign and execute the same. [The deed, which was from Thomas Nowell, the descendant of that Joseph Nowell to whom a license of occupation of the ground in question was granted by Governor Edwards, in 1759, was then read by the Clerk of the Court. It was dated 8th December, 1820 ; and under it
Thomas Nowell conveyed to the defendant, in fee-simple, for a valuable consideration, the ground now in dispute, together with some other land at present in defendant’s possession.]
3rd Witness—JAMES HONAN.—Arrived in St. John’s more than 60 years ago (i.e. in the spring of 1770) and has resided here ever since, with the exception of three years spent at Trepassey, and five or six years at Bay Bulls. On his first arrival witness served Mr. Boden, who had a fishing establishment close to the ground in dispute, which was then in the occupation of Joseph Nowell, whose house was within eight or ten feet of the fence enclosing the property now occupied by the defendant. It was even at that time an ancient house ; and must have actually stood on a part of the ground now claimed by Government. Witness himself lived at one period on the premises, as tenant to one Undry, who was the lessee of Nowell ; and never knew any part of the ground now in defendant’s occupation to be used, or claimed, by the public as a ship’s room. On the contrary, there was a path-way between defendant’s property and the neighbouring fishing-room : and the fence is now very nearly in the same situation in which it stood when witness first knew it.
(This witness, who is a man of 80 years of age, then proceeded to enumerate all the occupiers of the ground in dispute, in continuous succession, from Joseph Nowell, whom he found in possession in 1770, down to the present defendant.)
4th Witness—NICHOLAS BROWN.&$8212;The fire of 1824 burnt down some houses belonging to defendant. Witness knew them well, having a short time before repaired them. They came within 10 feet of the fence as it now stands, and this fence, which was erected after the destruction of the former one by the fire, follows the line of the old one very nearly ; the only difference arising from the defendant’s having given up to the public a small space which was contained within the former enclosure, in order to preserve a perpendicular or right line with the street. The houses destroyed by the fire of 1824 were ancient buildings. One of them, in particular, looked like an old house when witness first saw it about 18 years ago.
The defence here closed ; and the Attorney General having urged, in his reply, every argument by which his claim to a verdict could be supported, Chief Justice TUCKER delivered the case to the jury in a charge, the substance of which is as follows :
The verdict ought to be governed by the opinion which the jury might form upon one, or both, of two great questions into which the case resolved itself ; viz :
1st.—Was the piece of ground which the Crown now sought
to recover from the defendant a part of any ground
which, since the year 1685, had been used by fishing
ships ; and included, as such, in the 51st Geo. III., c.
45, s. 1, under the description of “ Lady’s Ships-
room ? ”
2nd.—Admitting the ground in dispute to have been part of
“ Lady’s Ships-room ” can the claim which the Crown
now prefers to it be defeated by the proof which the
defendant has adduced of the possession of it by
himself, and those under whom he claims, for sixty
The first is altogether a question of fact ; and must accordingly be decided entirely by the evidence.
By the 51st Geo. III., c. 45, s. 1, a plan of the town of St. John’s is referred to as descriptive of the several “ Ships-rooms ” mentioned in that section ; and it seems, therefore, that such plan must be considered conclusive evidence of their respective limits : so that if the jury fairly believe that the ground in dispute is laid down in that plan as part of “ Lady’s Ships-room ” they must find that it did actually belong to that ships-room, since no evidence could be admissible to controvert that point.
But there certainly is nothing in the Act of Parliament to prevent the jury from deciding whether or not this ground is really a part of that ground which is so laid down in the parliamentary plan as “ Lady’s Ships-room ; ” and in the investigation of this subject they ought to weigh the evidence on both sides with fairness and strict impartiality.
On the part of the Crown they have the testimony of the present Surveyor General, who tells them that from a survey, and careful comparison of that survey with the plan of 1804, he is convinced that the disputed ground is part of the lot laid down in that plan as “ Lady’s Ships-room.”
To rebut this strong presumptive evidence against him, the defendant has produced, (in addition to the parol testimony of the venerable witness Honan who proves that the ground which forms the subject-matter of the present suit has not been used as part of “ Lady’s Ships-room. ” within the last sixty years), 1st—A license from Governor Duckworth, dated in 1759, to Joseph Nowell, to occupy this identical spot of ground ; and 2ndly, a lease from Governor Duckworth, made under the powers conferred on him by the 51st Geo. III., c. 45, which professes to convey all “ Lady’s Ships-room ” to the lessees, and yet, as has been clearly shown in evidence, does not comprise the ground in dispute. And his counsel contends that these documents lead irresistibly to the inference, that the disputed ground was at no time a part, and, consequently, could not have been laid down as such in the plan of 1804, of “ Lady’s Ships-room : ” because if it ever were a part of a ships-room, Governor Edwards’ license to Nowell to occupy it was a violent infraction of the law, which the jury are bound to suppose he would not wantonly have been guilty of ; and 2ndly, because Governor Duckworth, with all the means of ascertaining, by the report of a Surveyor General, the true boundaries of “ Lady’s Ships-room ” under the description of it given in the plan of 1804, with the temptation of selling at the highest price which has ever been given for land in this country every inch that he could legally part with, and with a disposi-