The Labrador Boundary

Privy Council Documents

Volume IV


p. 2043

No.  857.



Title to land in Newfoundland—“ Ships-rooms ”—Title to these obtainable by residents under certain circumstances—Other lands obtainable by permission confirmed by the 5 Geo. IV. c. 51.

The title to land in this Colony held in peaceable possession at the passing of the original Act 5 Geo. IV., c. 51, is confirmed by that Act ;  and it is for the Crown, desiring ejectment, to show that it was not so held.

Policy of the Crown in regard to Newfoundland reviewed.

This case was brought before the Court by an ex officio information, filed by the Attorney General.  There were two counts :  the first charging the defendant with having intruded and entered on fifteen acres of forest-land near Logy Bay :  and the second with having made and kindled, on the 10th May 1829, certain fires upon the ground so unlawfully occupied, whereby a large quantity of wood was burnt and consumed to the damage of our Sovereign Lord the King of £100.

To both counts the defendant pleaded  “ not guilty.”

After laying before the jury a clear and distinct statement of the circumstances which had given rise to the present proceeding, and of the rules of law which he considered applicable to it, the Attorney General proceeded to call, in support of the facts of his case, four witnesses, who were sworn and examined in the following order :

lst—GEORGE HOLBROOK.—Is Surveyor General of this Island, and knows that defendant has inclosed some pieces of land about a mile and a half from Logy Bay, on the road to St. John’s.  Witness has surveyed the ground so inclosed by the defendant ;  and now exhibits a plan thereof, shewing the inclosure of about 14 acres at a distance of a little more than three quarters of a mile from Logy Bay.  The defendant had preferred a petition for a grant of land in that quarter, to which no written answer had yet been given :  but witness verbally directed defendant not to occupy ground on both sides of the road :  he being then in the actual possession of land on both sides of it.  A written notice to that effect was also given in the course of the preceding summer.
There was a fire in the woods near Logy Bay, in the summer of 1829,

¹ Newfoundland Reports, 1829-45, pp. 47-56.  See also, the King vs. Cuddihy, p. 2031.

p. 2044

which consumed the wood upon about 100 acres of uninclosed land.  The effect of this fire had undoubtedly been to diminish the value of the land which had been a prey to it ;  as a good deal of the wood burnt by it was useful for the fishery.

Cross-examined.—The land was covered with brush-wood, principally useful for covering flakes and for dunnage ;  and some of it was fit for firewood.
It was the practice for all persons having possession of land, and wishing to perfect a title thereto, to apply for a grant.

2nd Witness—RICHARD COMERFORD.—Witness lived at Logy Bay, as servant to defendant, in May 1829 ;  and about that time lighted some fires in the ground which defendant was then clearing on the south side of the land occupied by him.  It was on Saturday that these fires were kindled by defendant’s order ;  and on the following day a storm arose which caused the flames to spread considerably whilst defendant’s family were absent from the premises :  and before their return the fire had attained to such a height that all the efforts of the defendant and his people to extinguish the flames were totally ineffectual.  The best exertions of 100 men could not then have arrested the progress of the fire.  The fire had been kindled in 12, or 14, little heaps of peat, for the purpose of manuring the ground.  On the next morning (Monday) the blaze was out ;  but there was still some fire burning.

Cross-examined.—The defendant used the common precautions to prevent the spreading of the fire in the first instance ;  and for that purpose, a son of his was employed to watch it, together with witness.  They accordingly saw it just before dinner-time on Sunday ;  and thinking all safe went to their dinner, which they had scarcely eaten when a sudden and violent increase of wind occasioned such a blaze as they could not afterwards extinguish.

3rd Witness—JOHN HATCHETT.—Witness lived at Logy Bay during the summer season, and remembers a fire which occured near to it in May 1829.  It commenced at  “ Darnley’s Ridge,” where defendant has some land enclosed.  The fire broke out early on a Sunday morning, and extended a mile or more.  There was plenty of wood for fire and for fishery purposes ;  of which a great deal was destroyed.  Is sure it was in the forenoon of Sunday, and thinks not later than 10 or 11 o’clock, that he observed the fires defendant had kindled.  Did not see any one watching them ;  and must have done so if any person had been there attending to them on the spot.  Saw the flames spreading from those fires about 11 or 12 o’clock ;  and noticed the defendant coming from St. John’s with a part of his family, and riding very fast, when the wood was half-consumed ;  but did not see anything of the last witness.

Cross-examined.—Was about a quarter of a mile from defendant’s house when he first noticed the fires.  “ Darnley’s Ridge ”  is occupied, and partly inclosed by defendant.  There was at the same time another fire on the other side, by which witness’s own premises were considerably endangered.

p. 2045

4th Witness.—JAMES HANDLIN.—Remembers a fire in the woods near Logy Bay in the summer of 1829 ;  and just before it broke out with violence, witness observed some small fires kindled on defendant’s ground.  It was between one and two o’clock p.m. on Sunday that witness, at a distance of about a quarter of a mile from the spot, first perceived the fire, which had then consumed a considerable part of the wood.

Cross-examined.—Saw the peat fires burning on Saturday evening.

The Attorney General here closed his case :  and Mr. Row, who addressed the jury on behalf of the defendant, having declined calling any witness, the right to reply was waived by Mr. Simms.

TUCKER, C. J., charging the jury, said in substance :—That no man, let his title to property be ever so clear and absolute, has a right to do any act in relation to it which has a direct and necessary tendency to endanger the security, or, by lessening the sum of its wealth, to injure the interests of the public ; for that society itself, with all its attendant privileges and blessings, depends altogether upon the strict and inviolable observance of the principle, Sic utere tuo ut alienum non laedas ;—Use what belongs to you in such a way as not to annoy another person ;— and, therefore, that if the defendant, by kindling small fires of peat on the ground occupied by him, had done that which, notwithstanding every precaution that could have been adopted by him to prevent the spread of the flames, must, under ordinary circumstances, have been fraught with danger to the life, or property, of any one ;  or even if he had, by the omission of due care, rendered an act not otherwise wrong, injurious to the interests of the community, he was unquestionably liable to be punished severely for such conduct on conviction, upon an information or indictment for a nuisance.  But that the present proceeding against him, though instituted by the Crown, was not of a criminal, but of a civil character :   having for its object the recovery of a certain parcel of land which the defendant is charged with having taken a tortious possession of, together with a compensation in pecuniary damages for an act of trespass alleged to have been committed by him on that land whilst he was in the lawful occupation of it ;  and, consequently, that the question to which the jury must first exclusively direct their attention was, whether the Crown was entitled, under the evidence that had been laid before them, to evict the defendant ;  as it certainly could not obtain damages for any thing done by him on that land, unless it had satisfactorily established its claim to dispossess him of it.  That the question here raised was one of great difficulty, and still greater importance ;  and, therefore, that it would be proper in attempting to unfold to the jury what the Court deems to be a correct view of the law of the case, to describe the real nature and extent of the interest which an inhabitant could enjoy in land in this island before the passing of the 5th George IV., c. 51 ;  and afterwards to show, by a careful examination of some clauses in that chapter, in what degree they are capable of confirming a title, based upon

p. 2046

a previous naked possession, and also to point out the qualifications and restrictions under which a power is conferred by them on His Majesty to grant land in this Colony.
By the joint operation of the 10th and 11th Wm. III., ch. 25, and 15th Geo. III., ch. 31, the principal part—indeed very nearly the whole—of the land on the sea coast of this island is converted into “ ships-rooms ” ;  and under that designation set apart for the use of the fishing-ships, in such a manner that a resident might at any time be removed from the possession of one, provided it was really wanted by a fishing-ship.  Of course no permanent right of possession to a “ ships-room ” could possibly exist under these Statutes :  but, as that temporary occupation, in subservience to the preferable claims of the fishing-ships which the law permitted had been allowed, in many instances, by the non-exercise of the right of interference on the part of any fishing-ship, to be enjoyed by a man and his posterity for a long series of years, the Legislature, in taking away the public use of  “ ships-rooms.”—(first partially, in the town of St. John’s by 51st Geo. III., ch. 45 s. 1, and afterwards generally throughout the island by 5th Geo. IV., ch. 51, s. 14),—seem to have thought that a possession, which was only prohibited so far as it might interfere with the pursuits of the fishing-ships, and which had been continued for a great length of time, because, in point of fact, it did not contravene the policy of the law, ought not to be disturbed after the only motive for doing so—viz., the protection of the privileges of the fishing-ships—had ceased to operate :  and accordingly they appear, under the influence of a pure spirit of liberal justice, as much as from a desire to prevent the evils which must always result from leaving open a wide field of litigation between the government and the people, to have made, by the last-mentioned Acts, a previous occupancy and possession of a  “ ships-room,” of such a duration and character as would sustain a title to any other land, an equally strong and valid title to it.  Such, at least, is the view which the Court takes of the law respecting  “ ships-rooms ” :  but as a good deal of land in the interior, which does not fall within that description has (of late years particularly) been seized on by the in-habitants for the purpose of cultivation, it is highly important to ascertain in what light the Legislature have regarded this class of occupiers, and to define the privileges which have been conferred upon them.  Now without entering into the discussion of the much agitated question as to the extent of cultivation of which, from the nature of the soil and climate, this island is susceptible, it may safely be asserted that, up to the present hour, Newfoundland is considered by the Imperial Parliament as deriving her chief value from being the seat of the first fishing-establishment in the universe ;  and consequently, that, whatever disposition the Legislature may have shewn to promote and encourage agriculture, they never can have intended to advance its growth at the expense of the interests of the fishery.  In short, if there be one object connected with this island, to which all other considerations must yield and give place, the fishery must undoubtedly be that precise object :  and hence it may be positively inferred that a right which the Legislature have supported, even where it may, by possibility, be prejudicial to

p. 2047

the fishery, must have been looked upon as far too sacred to be violated upon any account whatever.  But the 5th Geo. IV., ch. 51, sec. 3, which confers on His Majesty’s subjects who do not reside here the privilege of a free-fishery, with a power of occupying land and cutting wood for the prosecution of it does yet pay such regard to a possession already acquired, that it strictly confines those adventurers who may thenceforward repair to this island to fish to the use of  “ vacant ” and “ unoccupied ” places.  Having, then, thus upheld the right of possession, even in a case where it might possibly conflict with the interests of the fishery :  and having afterwards, in the 15th section of the same chapter, in the most strict accordance with the same principle of regard to the right of possession, restricted the future grants of the Crown to  “ waste and unoccupied lands,”* there seems to be not much room to doubt, but that the 5th Geo. IV., c. 51, ought to be considered as a Parliamentary title-deed, under which every one who was in the quiet and peaceable possession of land before, and at, the passing of that Act, is entitled to hold and retain the same for ever.  Upon the best consideration, indeed, which we have been able to give to the enactments of the 5th Geo. IV., c. 51, we conceive, that it was the intention of the Legislature, that the unoccupied parts of the sea-coast, with an adequate portion of land for the ordinary purposes of the fishery, should be entirely dedicated to that object :  and, consequently, that His Majesty is bound under the 3rd and 15th clauses of the 5th Geo. IV., c. 51, to limit his grants to those  “ waste and unoccupied lands ” which were not at the time of passing the Act, nor are likely hereafter to become, necessary to the fishery.†  But if this be a correct view, and true exposition of the

See the grounds of this opinion stated more in detail in the foregoing Case of the King vs. John Cuddihy :—
*  One object and perhaps the principal one, of the 15th section of the 5th Geo. IV., ch. 51, certainly was, to silence, and for ever put an end to such claims to large tracts of land in this Island as had lately been brought forward, under the color of an old patent, by a person styling himself the representative of Lord Baltimore :  but admitting this to have been the main design of that clause, it seems also to have been intended to support the actual possession of land in every instance, upon whatever sort of title such possession (provided it were peaceable) might previously have rested :  for otherwise it most probably would have empowered His Majesty to grant all lands not already holden under a title acquired by grant from him or his predecessors, or by an uninterrupted occupation and possession of more than sixty years.  Instead of which it limits his power of granting to lands not already granted, and to  “ waste and unoccupied ” lands.
†  This opinion embraces two distinct and independent propositions :   1st.  That the actual possession, and peaceable enjoyment, of land, before the passing of the 5, Geo. IV., ch. 51, conferred a good title to it :  2nd.  That even of the  “ waste and uncultivated lands ” the Crown is restricted from granting such portions as are absolutely necessary for the fishery.  The former of these portions rests, principally, upon the 15th section of the 5, Geo. IV., ch. 51, and seems scarcely to admit any reason to doubt its accuracy : but the later appears not to stand upon quite an equally firm foundation.
It certainly would be strange if the Legislature has granted to a class of persons a privilege to use  “ unoccupied ” lands for the purposes of the fishery without making some provision that there shall be  “ unoccupied ” lands for their use.  On the other hand the power which is given to the Governor, by the 14th clause of the 5, Geo. IV., ch. 51, to dispose of the  “ Ships-rooms,” does, by implication, furnish a pretty strong argument against the notion of any part of the Island’s being exclusively dedicated to the fishery.  Upon the whole, the true interpretation of the Act may possibly be, that its 3rd section does not positively restrain the Crown from granting any waste and unoccupied ground on account of its being essential to the fishery, though it does impose on the Government



Partnered Projects Government and Politics - Table of Contents Site Map Search Heritage Web Site Home