ON APPEAL FROM THE SUPREME COURT OF THE ISLAND OF NEWFOUNDLAND.¹
JAMES SIMMS, ESQ., ATTORNEY GENERAL OF THE ISLAND OF NEWFOUNDLAND, Appellant,
JOHN CUDDIHY, Respondent.
PRIVY COUNCIL. 1836.²
Under the statutes for regulating the fishery of Newfoundland, and taking away the public use of certain ships’ rooms in the town of St. John’s in that island, the Crown is not entitled to claim a piece of ground formerly used as a ships’ room, against such a possession as would have been a bar to the claim of the Crown if the land had not been clothed with that character.
Semble. No objection can be taken on the appeal that the title of the defendant was not pleaded specially to an information for intrusion, in the Court below.
THIS was an appeal from a judgment of the above Court upon a verdict, in an information filed by his Majesty’s Attorney General of the island, against the respondent, for intrusion upon a certain quantity of land at St. John’s in Newfoundland, belonging to his Majesty, called a ship’s room, which the respondent had enclosed. The respondent pleaded “ Not guilty ; ” and upon the trial of the cause in the Supreme Court of the island, before the Chief Justice and the other judges on the 18th of February, 1831, the respondent was acquitted by the jury.
By the 15 Geo. III., c. 31, sec. 2, it is enacted, “ That for the better accommodation of the persons belonging to vessels employed in the Newfoundland fishery, it shall and may be lawful for the masters and crews belonging to any vessels fitted out and employed in that fishery, in pursuance of this or any other Act, to occupy and use, for the purpose of curing, salting, drying and husbanding their fish, any vacant or void space whatever, on any part of Newfoundland which was not then occupied and used for the said fishery, without any let, disturbance or hindrance from any person or persons whatsoever, although such unoccupied place may not before have been reported ship’s rooms ; and all such unoccupied places shall from thenceforth be deemed and taken to be ships’ rooms, any custom or usage to the contrary notwithstanding.”
¹ Appendix to Newfoundland Reports, 1829–45, pp. iii.–vii.
² Reported in : 1 Moore, P. C. 82, 12 Eng. Repts., 742.
By the 51 Geo. III., c. 45, s. 1, after reciting that certain spaces of ground in the town of St. John’s, in the island of Newfoundland, called ships’ rooms, were liable, according to the ancient custom there used, and comformably with the provisions of an Act passed in the 10th and 11th years of his Majesty King William III., intituled “ An Act to encourage the trade of Newfoundland,” to be claimed by the masters of fishing ships for the use of their ships and boats, during the current fishing season, which said spaces of ground had not of late been employed for the purposes of the fishery ; and that it would be more beneficial to the general interests of the trade and fishery, if the said spaces of ground were wholly exempted from such claim, and were let out for building dwelling-houses and store-houses, and for other uses necessary to the trade and fishery ; and that it had been proved, upon the survey of persons resident in the town of St. John’s, and well skilled in the affairs of the fishery, that there was land at the western extremity of the harbour, better suited for drying, curing, and husbanding of fish, than any of the ships’ rooms above mentioned ; it was enacted that from and after the passing of that Act, certain ships’ rooms therein specified, including the ships’ rooms No. 2, called the Lady’s ship room (which was the land in question), as the same were 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, should no longer be deemed and taken to be ships’ rooms, and occupied during the fishing season as such ; but it should be lawful for the same to be granted, let and possessed as private property, in like manner as any other portions of land in Newfoundland might be, anything in the said Act, or the said ancient custom to the contrary notwithstanding.
By the 5 Geo. IV., cap. 51, sec. 14, after reciting the last-mentioned Act, and that it was expedient that all other fishing ships’ rooms in Newfoundland should be disposed of in like manner, it is enacted, “ that the Governor of Newfoundland for the time being should have power, and he is thereby authorized to sell, lease or dispose of all such places within the said island of Newfoundland, commonly called ships’ rooms, as might not be then already disposed of under and by virtue of the said last-mentioned Act ; to be held in the same manner as other property in Newfoundland, provided however that nothing therein contained should extend or be construed to extend to the prejudice of any private right of any person whatsoever.”
The land in question claimed by the town, as part of that mentioned in the 51 Geo. III., cap. 45, sec. 1, by the name of “ Lady’s ship room.”
On the trial it was stated in evidence, by the Surveyor-general on the part of the Crown, that the land which the defendant had enclosed was part of the land laid down in the plan (made in 1804, and referred to in the last-mentioned Act of Parliament) as “ Lady’s ships’ room.”
On the part of the defendant, evidence was given to show that in 1759 one Joseph Nowell was in possession of the land in question, by virtue of a license from the then Governor of the island, and that it remained in his
possession, and that of those claiming under him, till 1820, when it was conveyed to the respondent for valuable consideration by Thomas Nowell, who claimed through Joseph Nowell, and that it was in respondent's possession down to the time of trial. Evidence was also given on the part of the defendant to show that in a lease of the “ Lady’s ships’ room,” granted on the 23rd of October in the year 1811, by Sir John Duckworth, then Governor of the island, the land in question was not included in the boundaries set out in the lease.
Upon this evidence the learned Chief Justice left it to the jury to say whether the locus in quo was part of the ships’ room laid down in the said plan as “ Lady’s ship room,” and that if they found it was not, then that they should find a verdict of “ Not guilty ; ” but that even if they were of opinion that it did form a part of the Lady’s ships’ room, the learned judge expressed his opinion that the defendant should be acquitted, because he said the Crown was not entitled, under the before-mentioned statutes, to claim a piece of ground which had formerly been a ship’s room against such a possession as would have been a bar to the claim of the Crown, had they not been clothed with the character of ships’ rooms. Whereupon the jury returned a verdict of Not guilty, and the Court gave judgment for the defendant.
From this judgment the Crown appealed, and the respondent not appearing, the case was heard ex parte.
The Solicitor-General (Sir R. M. Rolfe), and Mr. Wightman, for the Appellant.
The evidence given on behalf of the Crown that the land in question was by survey found to be included within the Lady’s ships’ rooms, as they appear upon the plan referred to in the 51 Geo. III., cap. 45, was not rebutted or disproved by any sufficient evidence on the part of the defendant. It is admitted that the land originally belonged to the Crown, and was held by license ; this, if not a grant, was revocable, and could not give a title ; it proves also that the claim was through the Crown, and in that case the license ought to have been specially pleaded. 21 Jac. I., cap. 14.* Where a party claims wholly adversely to the Crown, and remains in possession, on an action for intrusion, he need not plead his title ; but if he claims through the Crown, but adversely to it, he ought under that statute to plead his title. An adverse possession cannot avail against the terms of the Acts of Parliament referred to, and the opinion of the Chief Justice was erroneous on that point : he ought not to have charged the jury to acquit the defendant. The position relied on by the Chief Justice as an answer to the claim of the Crown, does not sufficiently appear to have been adverse.
MR. BARON PARKE :
In this case there has been a possession of the land in question under license from the Crown from the year 1759 to 1820, when it was conveyed
* See 4 Inst. 116 Dyer, 238.
to the respondent for valuable consideration. The objection that the defendant ought at the trial to have pleaded this specially, if entitled to any weight, comes too late ; it was not made in the Court below, and it would be too hard to allow it to be taken now. With respect to the construction of the various statutes affecting this question, we think the Chief Justice of the Court below has stated it correctly, and that the judgment must be affirmed.