Chief Commissioner for Railways and Tramways (NSW) v Attorney-General for New South Wales

[1909] HCA 75

9 C.L.R.] OF AUSTRALIA.

547

[HIGH COURT OF AUSTRALIA.]

CHIEF COMMISSIONER FOR RAILWAYS!

A p p e l l a n t ;

AND TRAMWAYS (N.S.W.) . .

}

D e f e n d a n t ,

THE ATTORNEY-GENERAL FOR NEW

SOUTH WALES AND THE COUNCIL

R e s p o n d e n t s .

OF THE MUNICIPALITY OF CAR­

RINGTON ..............................................

I n f o r m a n t a n d

P l a i n t i f f s ,

ON APPEAL FROM THE SUPREME COURT OF

NEW SOUTH WALES.

Eenmption o f land— Public Works Act 1900 [N'.S. IF.) (A'o. 26 o f 1900), secs.

H. C. OF A.

36-40, 80*—Local Oovernment Act 1906 [N.S. W.) (A*o. 56o/’1906), secs. 75, 83 1909.

— Public Roads Act 1902 (N .S. W.) (A*o. 95 o f 1902), secs. 19, 2 t—Resumption

of public highway— Substituted road— Liability o f Constructing Authority— Sydney,

Road wholly in resumed area.

Nov, 25 ;

Dec. 8, 9, 10.

The Governor has power, under secs. 36 and 37 of the Public Works Act

1900, to resume a public highway, and upon resumption the public right of

’

O’Connor and

way over the land is extinguished.

Ifjoacs JJ

* Sec. 80 is as follows :—If, in the

entitled to the use thereof, the Con­

exercise of the powers hereby granted, structing Authority shall, before the

it is found necessary to cross, cut commencement of any such operations,

through, raise, sink or use any part of cause a sufficient road to be made

any road, whether carriage road, horse instead of the road to be interfered

road, tram road or railway, either with and shall, at the public expense,

public or private, so as to render it maintain such substituted road in a

impassable for, or dangerous, or ex­state as convenient for passengers and

traordinarily inconvenient to passen­carriages as the road so interfered with

gers or carriages or to the persons

or as nearly so as may be.

548 HIGH COURT

[1909.

H. C. OP A. Sec. 80 of the Public Works Act 1900 provides that, if in carr3’ing out the

1909.                  authorized work the Constructing Authority interfere.s with any road so as to render it impassable, he shall, before commencing operations, cause another

Chief Com-

sufficient road to be made in place of the road interfered with.

MIS.SIONEH

KOK

R aIL-

WAT.S AND

Held, that this section has no application to roads which are wholly within

Tramways

(N.S.W .)a resumed area, or to the resumption of portion of a road, where before

V.  resumption the portion of the road resumed gave access oidy to land vested

Attorney- in the Constructing Authority, and where, after the resumption, the whole of

General FOR

N ew South

the frontage to the portion of the road lesunied is Crown property.

W ales.

H dd, also, that sec. 83 of the Local Govtrununt Act 1906 refers only to the closing of roads in pursuance of the Public Roads Act 1902, and does not restrict the powers of resumption conferred by the Public Works Act 1900.

Decision of A. H. Simpson C.J. in Eq. : Attorney-General v. ChieJ'Commis­ sioner fo r Railways and Tramways, (9 S.R. (N.S. W.), 412; 26 W.N. (N.S.W.), 79), reversed on the first point, and affirmed on the second point.

A p p e a l from the decision of A. H. Simpson, Chief Judge in

Equity of the Supreme Court of New South Wales.

Tliis was a suit in which the Attorney-General for New South Wales was informant, and the Council of the Municipality of Carrington were the plaintiffs, and the defendant was the Chief Commissioner for Railways and Tramways.

The information and statement of claim alleged that certain public roads in the said municipality called Murray Terrace, William Street, and Hargrave Street, were vested in the plaintiffs under the Local Government Act 1906. By proclamation, dated 23rd February 1909, the whole of Murray Terrace and portions of William and Hargrave Streets wer’e resumed under the Public TFor/rs Act 1900, for the purpose of railway extension, and were vested in the defendant as the Constructing Authority for the purposes of the Public Works Act 1900 for an estate in fee simple in possession, freed and discharged from all trusts, obliga­ tions, estates, interests, contracts, charge.?, rates, rights of way, or other easements whatsoever, and to the intent that the legal estate therein, together with all powers incident thereto, or referred to by that Act, should be vested in the defendant as trustee. The land resumed by this proclamation is the portion coloured pink in the plan printed on the next page.

B u l l o c k IS i a n d ,C o a M n (

. r r (

550 HIGH COURT

[1909.

H. C. OF A.

Lot 4, D. Ross, coloured wliite in the plan, had previously been

1993- vested in the defendant. Prior to the resumption Murray Terrace

Ci£iEF Com- was bounded on the east, and separated from the winters of the

ForRAnT Newcastle, by land used by the defendant for railway WAYS AND purposes, and there was no access therefrom, or from Hargrave

Tramways t „ „

,

(N.S.W .) or William Streets, to the waters of the port except by tres- Attorney- passing on such railway lands. The land on the east of Little

*Nkŵ Sodtĥ Darling Street, lying to the south of the resumed land, was a

Wales. reserve for railway purposes, and the land on the northern side

of the resumed area, fronting the resumed portion of William Street, was Government property. The plaintiffs alleged that it was necessary in the public interest that other streets should be substituted by the defendant for Murray Terrace and the resumed portions of William and Hargrave Streets. They prayed that the defendant should be ordered to provide and appropriate a sufficient new and substituted road for the use of the public as convenient for passengers and carriages as Murray Terrace, William Street and Hargrave Street were respectively before the resumption. It was suggested by the plaintiffs that the defendant should make a new road by widening Little Darling Street on its eastern side between William Street and Hargrave Street.

It was intended by the defendant to lay down railway lines over the resumed area for the purpose of extending the railway siding accommodation at Murray Terrace. The lines of track would eventually pass over the Government land to the north of the resumed portion of William Street. Lines of railway had already been constructed over the railway reserve to the south of Murray Terrace. The defendant alleged that if he ŵ ere prevented from proceeding with the sidings on the land resumed it would be impossible for him to deal with the carriage of coal in the Newcastle and Maitland districts, the said lines being the only means of access to the Dyke and Lower Basin from which all coal for export is shipped. It Avas admitted that the purposes for which the lands were being used would render the use of every part of them for a highway impracticable.

The proclamation stated that the estimated cost of completing the work would not exceed £20,000, and the case, therefore, came within sec. 28 (2) of the Public Works Act 1900, which pro-

9 C.L.R.] OF AUSTRALIA.

551

vides that the Governor may with regard to any jJublic work, H. C. of A.

the e.stiniated cost of which does not exceed £20,000, direct

^90^

that the same shall be carried out under the Act, in which case Chief Cosi-

all the powers and provisions of the Act relating to authorized *"**̂ 7̂̂ work shall be applicable to such work, and the same shall be ways and

,

Tramways

deemed for the purposes of the Act an “ authorized work,” and (N.S.W.) that the Railway Commissioner on whom the carrying out of attorney- such work devolves shall for the like purposes be deemed a Con- General for

stnicting Authority.

W ales.

By notice of motion, which by consent was turned into motion for decree, it was ordered that the defendant should be restrained from committing the acts complained of upon the said streets until he liad appropriated for the use of the public a sufficient road as convenient for passengers and carriages as the said roads respectively were before they were resumed.

The defendant appealed against this order upon the grounds : 1. That on the facts admitted and proved his Honor was in error in holding that the appellant was bound to provide a new or substituted road in place of the roads resumed; 2. That his Honor was in error in holding that sec. 80 of the Public Works Act 1900 applies to cases where land, over which at the date of resumption there existed a road, is resumed under the said Act.

Cullen K.C., and Harriott, for the appellant.

Sec. 80 of the

Public Works Act 1900 has no application to this case. That section was intended to apply to cases where in the course of carrying out the authorized work the Constructing Authority interferes with a then existing road which some person is entitled to use. The section might apply to a case where portion of a road is resumed, and the two ends of the road are left un­ connected. That would be an interference with an existing road which the public were entitled to use.

[G r if f it h C.J.—That seems to be provided for by sec. 79, but

this information is not under that section. In that case there

might be a way of necessity.]

In this ca.se the roads in question upon resumption became vested in the defendant as absolute owner for railway purposes.

552 HIGH COURT

[1909.

H.C. OK A.He is, tlierefore, not interfering with a road witliin the meaning

1909.of sec. 80, but simply using his own land for authorized purposes. There is no one now entitled to use Murray Terrace or the re­

Chief

Com­

mission ek

Foii R a i l ­

sumed portion of William Street or Hargrave Street. All the

w a y s AND

T ramways frontages to the portion of the roads resumed belong to the de­

(N.S.W .)fendant or are Government property. The land to the east of

V.

Attornkv-

IMurray Terrace, to which there was formerly an access by way

Generai. for

N ew South

of William Street or Hargrave Street, is the property of the

W ales.defendant. These two last mentioned streets formerly led to the

defendant’s land. The only difference now is that persons using these streets get to the defendant’s land sooner than they did before the resumption. The provisions of sec. 80 refer to operations of tlie Constructing Authority upon excluded roads which are tem­ porarily obstructed. They do not refer to roads included in the resumed area, which by virtue of the resumption have ceased to be highwa3Ls: Tanner v. South Wales Railway Go. (1). If the contention of the respondents is right, the Governor w'ould have no power to resume a public highway. By sec. 33 of the Public Works Act the Governor may take any land required for author­ ized works. If this does not include power to resume a road the object of the Act cannot be attained. “ Land ” in this section means land of any kind to the exclusion of any right of posses­ sion or user by any jDerson ; see definition of land in the Inter­ pretation Act 1897, No. 4, sec. 21 (e). It gives power to vest the soil of a highway in the Con.structing Authority. It may be said that the fact that there is no provision for compensation in such cases to the local authority is an argument against such a con­ struction of the section. But this is not a case for compen­

sation.

It is simply the taking of land which is being used for

one public purpose for another public purpose. A public right of W'aj’ may be extinguished by necessary implication as well as by express words: Corporation of Yarmouth v. Simmons (2). The prohibition against the closing of a road, without the con­ sent of a Council, in sec. 83 of the Local Government Act 1906, applies to the closing of unneces.sary roads under the Public Roads Act 1902. Sec. 75 of the Local Government Act also refers onlj’ to existing roads, otherwise the Council could prevent the

(1) 5 F.l, & BL, 618.

(2) 10 Ch. D., 518.

9 C.L.R.] OF AUSTRALIA,

553

resumption of a road by the Governor under the Public Worhs H. C. o f a .

Act.

^

Chief Com-

^yise K.C., and Rich, for the respondent Council.

Tlie conten­

tion of the respondents is that the Constructino- Autliority cannot

" 'ays and

. . ® _

Tramways

close up a highway without constructing another. In this case

(N.S.W.)

V.

the Council are entitled to a road from Hargrave Street to William

attorney-

street, as convenient as Murray Terrace.This could be con- Oenfral

for

N ew South

structed along the east side of Little Darling SHeet. In consider­

W ales.

ing what is a road under sec. 80, the material time is the date of resumption. At that date the roads resumed were existing roads. The words, “ If, in the exercise of the powers hereby granted,” in sec. 80, refer to the power of resumption, as well as to the powers of carrying out the authorized works after resumption has taken place. In Attorney-General v. Barry Docks and Railivay Co. (1), it was held that sec. 53 of the Raihvays Clauses Consolidation Act 1845 applies to a permanent as well as to a temporary diversion of a road. It is true that the words in sec. 53, “ If in the exercise of the powers herebj’ conferred ” refer to the powers in the Raihvays Clauses Act or the special Act, but the powers which in England would be included in the special Act are here contained in the Public Worhs Act. This Act pro­ vides the whole of the machinery necessary for the acquisition of land, and also the powers necessary for carrying out the authorized work ; see secs. 28 (2), 144. No power to do the work authorized is conferred upon the appellant by the Government Raihvays Act 1901, No. 6.

[G r if f it h C.J.—Sec. 80 says the Con.structing Authority shall

Dec. 10.

cause a sufficient road to be made “ before the commencement of any such operations.” That fixes the time at whicli the obliga­ tion arises].

“ Powers hereby granted ” refer to the power of acquiring the land, and should not be restricted to power to go on adjacent land after resumption has taken place. The resumption did not vest the highways in the Constructing Authority. Sec. 37 is merely a conveyancing section. The word “ easement ” in that section does not include a public highway : Haivldns v. Rutter (2) ; Gale

(1) .35 Ch. U., 57.3

(2) (1892) 1 Q.B., 668.

554 HIGH COURT

[1909.

H.C. OF A.071 Easements, 7fcli ed., p. 13. It was held in Ahinicipal Council

1909. of Sydney v. B)'ow7ien (1) tliat sec. 37 does not operate to di.s-

Chief Com-

charge land re.smned from future municipal rates. If sec. 37 is

.MISSIONKR

FOR P.AII,-

more than a conveyancing .section, sec. 80 must be read as a

TramwaysWAYS ANDjiroviso to it, and is introduced to give protection to the public

(N.S.W.)for the loss of the highway.

The Act contains no provision for

V.

compen.sation in such CcLse.s.

In construing .sec. 80 the heading of

Attorney-

General FOR

N ew South

Part VI. of the Act should be given effect to ; Willia7ns v.

Wale.s.Permanent Trustee Co. of N.S.}¥. (2). This shows that it refers

to every case where land is taken under the Act.

[ I s a a c s J. referred to Toro7ito Corporation y. Toroiito Railway

Co. (3)].

The provisions of .sec.s. 75 and 83 of the Local Govemwnent Act

1906 apply to this case.

[They also referred to Barnaoxl v. G7'eat Weste '̂n Railway (4); Attorney-Genercd v. G7'eat Northe7m Railway Go. (5); and Richa7'ds v. Swaiisea Improvement and Trcmiway Go. (6).]

Culleii K.C. in reply. “ Powers hereby granted ” do not refer to the power of resumption, but to the powers to be exercised in carrying out the authorized work.

G r i f f i t h C.J.

The question for determination m this case

re.sts on the construction of see. 80 of the Public Woidcs Act 1900, which confers large powers upon the constructing authorities of public works. Sec. 80 is a.s follows;—[His Honor read the .section and continued : ]

The question arises in respect of certain roads in the muni­ cipality of Carrington at Newcastle. Certain land was re.sumed by the Governor by proclamation under the powers conferred by the Public Works Act. The position of the land resumed may be de.scribed in this way ; In the port of Newcastle is what is called the Djdce, which is a water frontage along which .ships lie for the purpose of loading coal for export, and runs nearly north and south. The land immediately to the west of the Dyke is Government land, and is in the occupation of the appellant.

(1) 2 .S.R. (N.S.W .), 244. (4) 86 L.T., 798.

C2) (1906) A.C., 249.(5) 4 DeG. & .S., 75.

(:q (1907) A.C., .315.

(6) 9 Ch. I) , 425.

9 C.L.R.] OF AUSTRALIA,

555

Between three and four chains to the west of tlie Dyke tliere ran,

H- C- of A.

in February la,st, a short street called J/Iurray Terrace, 1 cliain in

^9^

width and 13 chains in length, liaving on its eastern side tlie CmEF Com-

Governinent land. On the western side of this street were live

m issiosek

FOR tvAIL*

blocks of land, which had been alienated from the Crown.

One

of these blocks had been purcha,sed by the appellant; the others (N.S.W.)

had not. On the ea.stern side of that block of five allotments attorkey- was Murray Terrace. On the north of the block ran a street G eneral for

_ . ,

N ew South

called William Street, which ran east and west, and terminated

W ales.

on the eastern side of Murray Terrace. The south side of the

Griffith C.J.

block was bounded by Hargrave Street, which also terminated at Murray Terrace. On the west was Little Darling Street, which ran parallel to Murray Terrace on the western side of the five blocks of land, and was apparently about half a chain in width.

By a proclamation by the Governor in Council dated 23rd February 1909 it was declared “ that the Crown and private lands comprised within the descriptions set forth in the schedule hereto have been respectively appropriated and resumed for the public purpose hereinbefore expressed ”—that is to say, for the purpose of constructing a railway siding upon the land. The word “ appropriated ” is an apt word in respect to Crown lands set apart for public purposes. The word “ resumed ” is an apt word in respect of the appropriation of private land.

The block taken is a block bounded by the east side of Murray Terrace on the east, the northern side of William Street on the north, the southern side of Hargrave street on the south, and the ea.stern side of Little Darling Street on the west. The result was that the whole of that area, including Murray Terrace and the two ends of William Street and Hargrave Street, became the property of the appellant, and a further result was that Little Darling Street formed the boundary between the alienated land in that neighbourhood and the land of the Commissioner. The ends of Hargrave Street and William Street and Murray Terrace were entirely included within its boundaries, and there was no place to which they gave access except the Commissioner’s own land.

It w'as suggested that persons used to travel past Murray Terrace and the ends of William Street and Hargrave Street to

556 HIGH COUTIT

[1909.

H.C. OF A.the Dyke. I£ they did, tliat iniglit in some circumstances have

1909.been evidence that there was a right to cross the Government

Chief Com­land in those places, but by the law of New South Wales there

missioner

is no dedication of Crown lands as a highway by usei'. There

FOB

R ail­

ways AM)

TBAMM'AVS

was no evidence that there was a highway extending into the

(N.S.W.)Government land. If there was such a highway it does not cease

V.

Attorney- to be a highway, and the case is expressly provided for by sec.

General FOR

79, which provides that “ if the authorized work crosses any

N ew

South

W ales.public highway or carriage road, then such authorized work shall Griffith C.J.not be carried across, over or under such road, unless the proposed

place and mode of such crossing and the immediate approaches thereto, and all other necessary works connected therewith, and the provisions to be adopted for the protection of the public using the same have been previously notified, and have been approved by the Governor.”

These being the circumstances, the statement of claim was filed by the Attorney-General on the relation of the municipality of Carrington, praying that the appellant may be restrained from utilising Murray Terrace and the two ends of Hargrave Street and William Street until he has, in the words of sec. 80, caused “ a sufficient road to be made instead of the road to be interfered with,” and the learned Chief Judge in Equity granted the relief claimed.

The appellant contends that in the circumstances of the case sec. 80 is not applicable. It is contended, first, that the section does not apply at all to land which is altogether taken by the Crown for the purpose of a public work. That raises the ques­ tion whether the Crown can, under the general powers of the Public Wcu'lcs Act, resume or appropriate public highways. It was not seriously contended that it can not. In fact, of neces­ sity’, such a power must exist, for land might be taken for a public work that is intersected by public streets, which would become absolutely useless if the whole block is taken by the Crowm. Then it is said that, in those circumstances, the section does not apply, and on that two cases were cited : the case of Tamter v. South Wales Railway Co. (1); and Attorney-General

(1) 5 Kl. & Bl., 618.

9 C.L.R.J OF AUSTRALIA.

557

V. Barry Docks and Railway Co. (1), in which ditiereiit opinions

H. C. OF A.

1909.

were expressed.

I do not think it necessary to express any opinion on the

Chief Com-

subject. I think that, if a highway were taken by the Crown

MISSIONBK

FOR R ail­

T ramways ways AND

which was the only means of acce.ss to alienated land, it niiglit

well be said that there was a way of necessity over the land, and

(N.S.W.)

V.

that there was an obligation imposed upon the Constructing

Attorney-

Authority to construct another road in place of the road resumed.

General FOR

N ew South

But such a case is very unlikely to arise. It is almo,st inconceiv­

W ales.

able that the Government would take a highway which was the

Griffith C.J.

only means of access. But, assuming that the section might apply in certain circumstances, does it apply in the present case? On examining the land in question I think it is clear that the road, for which a substituted road is asked to be made, is one which after resumption will not be required for use by any persons who were previously entitled to use it. The facts show there is no one living who can be entitled to use the road. The piece of road within the appellant’s boundary leads to nowhere beyond. It is simply an entrance at one end of his fences, return­ ing thence to Iris boundary at another point. It is precisely tlie same as a cul de sac, except tliat in this case it cannot be called a sac, as it would be open at each end. The frontage to Little Darling Street will still have a frontage to Little Darling Street. Persons entitled to use William Street and Hargrave Street to go on to the appellant’s land will still use those streets until they reach his land.

It appears to me that to require another road to be made under these circumstances would be absurd, and I do not think that the section, construed literally, requires anything of the sort. The conditions are that the user of the road is of such a nature as to render it “ irnpas.sable for, or dangerous, or extraordinarily incon­ venient to passengers.”

I think that this assumes there are some persons entitled to use the road, but there are now no persons entitled to use it. It becomes part of the curtilage of the appellant, and no one else is entitled to u.se it except persons who are permitted by him to do so. I think therefore, that the plaintiffs have failed to establish

(1) 35 Ch. D., 57.3.

558 HIGH COURT

[1909.

H, C. OF A.

any right to relief under sec. 80, unless it can be shown that a

1909.       liighway cannot be closed under any circumstances.

Chief Com­

It was also suggested tliat, even if the Public Wm'lcs Act gives

missioner

FOR Rail­

power to the Governor to resume highways and appropriate tliem

ways AND

Tramways as Crown lands, that power is negatived by sec. 83 of the Local

(N.S.W.) Governvient Act 1906, whicli provides that “ no road or part of

V.

Attorney-

a road shall be closed, nor shall the position of a reserved road

General FOR

N ew South within an incomplete purchase from the Crown or conditional

Wales.lease be altered within an area in pursuance of the Public Roads

Act 1902 unless the consent in writing of the Council of the area

Griffith C.J.

has been first obtained.”

In my opinion that section refers entirely to the clo.siiig of roads in pursuance of the Public Roads Act. That is the gram­ matical construction of the section if a comma is inserted after the word “ altered.” But the section does not interfere with the exerci.se of the powers conferred by the Public Works Act. Therefore the action taken by the Governor in resuming the land was lawful, and the conditions prescribed by sec. 80 did not arise. I think, therefore, that this suit is misconceived, and should have been dismissed.

B a r t o n J. An injunction was sought against obstructions to Murray Terrace, William Street and Hargrave Street, which are public roads within the plaintiff municipalitj? ,̂ until the substitu­ tion of a sufficient and equally convenient alternative road, the obstructions having blocked these roads to traffic, and rendered them founderous and dangerous. The motion having been turned by consent into a motion for a decree, an injunction was granted by the Chief Judge in Equity on certain terms. The whole con­ tention for the appeal is based on sec. 80 of the Public Works Act

1900. The plaintiff respondents urge that this section applies to

the crossing, cutting through, raising, sinking or using of the whole or any part of any public road included within an area resumed for an authorized work. The whole case rests on this attempted construction. I am of opinion that the section does not apply to resumed land which at the time of resumption has been a road, at any rate if the resumption includes the whole of such road as in the case of Murray Terrace. It may perhaps

9 C.L.R.] OF AUSTRALIA.

.559

apply to the resumption of part, wliere the remainder of tlie road

H. C. OF A.

1909.

is left,

I do not say that it does, but if it does then only in such

a case can it be urged that there is an interrupted traffic to be

Chief Com- MIS.SIONER

provided for. I do not think the section touches such a case as

FOR

R ail­

Tramways ways AND

this, where the resumption of the whole of one road, namely,

Murray Terrace, includes as a phj’sical necessity the butt end of

(N.S.W .)

r.

another road running at right angles to the resumed road, whicli

Attorney-

included end leads solely to and abuts on land previously vested

Generai., for

N ew South

in the Constructing Authority, the limits of which are extended

W ales.

bj’’ the resumption of the wholly resumed road. Neither Har­

Barton J.

grave Street nor William Street has, in my judgment, been shown by the Council of Carrington to have run through the railway land to the water-side at the Dyke as a public highway. There is no dedication of the lands of the Crown by user in this State, and the land over which this access to the M âter-side is claimed has never ceased to be State property. As the onl}̂ traffic of William Street and Hargreave Street beyond the inter­

section of Little Darling Street (which is left intact) had as its terminus, apart from mere sufferance, the boundary of the rail­ way lands, it cannot be said that the extension of those lands in the manner shown has interfered with any traffic that existed of right.

I have no doubt that the powers of resumption under the Public Works Act extend to public roads and highways though the Commissioner has power given him by sec. 74 at any time, if the necessities of the public appear to dictate it, to dedicate part of any land vested in him as a highway, or an addition to or extension of an existing highway.

As to the point raised by Mr. Wise under the Local Govern­ ment Act (.sec. 83) and the Public Roads Act (secs. 19 and 20), I agree entirely with what has been .said by the learned Chief Justice. I am of opinion that this claim fails, and that the appeal should be allowed.

O’Connor J. As to the objection taken to the action of the Government in resuming the land including the road, on the ground that the provisions of the Local Government Act were not complied with, I do not think it necessary to say more than that

560 HIGH COURT

[1909.

H.C. OF A. I ao’ree in that respect with the tlecision of tlie learned Judge of

1909.hast instance, and with the observations of my learned brother

Chief Com-the Chief Justice. The substantial point in the case turns upon

MIS.S/OXEK

FOR R a IL-

the construction of sec. 80, and its application to the circumstances

n ’AYS ANO wdiich have arisen in this case. Before reverting to the section

'I’k a m w a y s

(N..S.W.)it may tend to clearness if I refer to the scheme of the Act, and

V.

Attorney-

I shall do so with special reference to two questions which have

G e n e r a l f u r l̂ ên raised in the cour.se of the argument. Fir.st, is there power

N ew

South

W'a i . e s .

to resume land on which there is a public road ?

Section 30

enables the Covernment to resume all land which may be required for public purposes. “ Land ” is the widest expression that could have been used. In its ordinary meaning it would include land with a road on it. It is clear, also, from the nece.ssity of the case that it must be taken to do so where the road stands in the way of the carrying out of the public work in respect of which the resumption is made. Immediately on resumption all estates and intere.sts in the laud, by virtue of .sec. 37, ve.st in the Construct­ ing Authority, and all other estates and interests come to an end. Tliat section expressly .sweeps away all other estates, interests and easements, including private rights of way. It does not ex- 23ressly refer to public rights of way. But express words are not necessary for the statutory extinction of a public right of way. That is illustrated by Mr. Justice AVy’s judgment in Cor2)oration of Yarmoutli v. Simmons (1), where a public right of way was held to be extinguished by necessary implication from the provisions of a Statute. The continued use of the land as a public road would render the exercise of the powers expressly conferred on the Constructing Authority impossible. It follows, therefore, that by necessary implication the rights of public waj ̂must be taken to have been extinguished by the resump­ tion. It is pointed out by the respondents that, though there are directions for asse.ssing and paying compensation to all other persons interested in tlie land re.sumed, no mention is made of compen.sation to the public for the loss of the public right of wajL But surely that is not nece.ssary. The public as a whole lose nothing. The Government is authorized merely to substitute

O'Connor J.

one public use of the land for another. It is for that purpose that

(1) 10 Ch. D., 518.

9 C.L.H.] OF AUSTRALIA.

561

the resumption of the land is authorized. But in the carrying

H. C. OF A.

out of the work it may become necessary for the public autliority

1909.

to enter upon, use, and generally “ interfere with,” to quote one

Chief Com­

missioner

of tlie words used in the Act, other lands than those resumed, and

FOR Rail­

T ramways ways AND

also roads other than those included in the land resumed. Ample

powers for that purpose are given by various sections in Division

(N.S.W.)

V.

V., which begins at sec. 73, and it is to be observed that sec. 80 is

Attorney-

one of the group of sections in that Division which deals with

General FOR

N ew South

these powers. Amongst other things, sec. 73, sub-clause (d),

Wales.

enables the Constructing Authority when carrying out the work

O’Connor J.

to divert, alter, raise, or lower any public road which it may become necessary to deal with in carrying out the authorized work. That is the only one of these powers which is, I think, relevant to the interpretation of sec. 80. In the latter section we find that the very condition of things which sub-sec. {d) of sec. 73 has in contemplation is dealt with. Any right which the respon­ dent municipality may have, if it has any, must be founded upon sec. 80, and it cannot succeed in this case unless it shows that the circumstances have arisen to which sec. 80 applies. Now the section marks out very clearly the conditions which must arise before it becomes the duty of the Government to make the substituted road which is claimed by the municipality. It enacts that if in the exercise of the powers granted it is found necessary to cross, cut through, raise, sink, or use any part of any road so as to render it impassable, or dangerous, or extraordinarily incon­ venient to passengers or persons entitled to use it, the Construct­ ing Authority must cause a sufficient road to be made instead of the road to be interfered with.

One thing very obvious is that these provisions are not applic­ able to a road which is part of the resumed land, and which has been absorbed and put an end to by the resumption. The whole of the section shows that the road referred to is a road which continues and is being lawfully used by the public notwithstand­ ing the resumption. But, as I have pointed out already, it is impossible consistently with the resumption that the road included in the resumed land should continue open to public use. It is therefore difficult to escape the conclusion that the road, inter­ ference with which by the Con.structing Authoidty gives persons

562 HIGH COURT

[1909.

H.C. OF A.specially inconvenienced a right to call upon the Government to

1909.make a substituted road, must be a road outside the land resumed.

Chief Com­In Tanner v. South Wales Railw ay Co. (1), sec. 53 of the

missioner

Railway Clauses Consolidation Act 1845 was under consideration.

FOB

R ail­

ways AND

It is substantially identical with sec. 80 of the Public Works

T ramways

(N.S.W.)

Act, which I am now examining. The facts were somewhat

V.

Attorney- different, but the principle of construction adopted in that case is

General FOR

equally applicable in this. It was there held that the road,

N ew

Sooth

W ales.interference with whicli by the railway company made it in­ O’Connor J.cumbent on them to provide another road, mu.st be a road not

within but outside the land taken, and the observations of the learned Judges support the construction of sec. 80 which I have indicated should be adopted.

Under these circumstances, it is to my mind clear that the conditions have not arisen which would entitle the re.spondent municipality to the remedy against the Railway Commissioner which it claims. In expressing that view I assume of course that tlie facts were such as appeared in the judgment of the learned Judge of first instance : that it was established that the public had no access to the Dyke by way of any of the streets resumed. If there had been such access the case would have presented a different aspect, but one which it is unnecessary to consider here. On the Yvliole case, therefore, I have come to the conclusion that no liability under sec. 80 or otherwise has been established against the Commi.ssioner, that the judgment of the Chief Judge in Equity cannot be supported, and that thi,s appeal must be alloived.

I s a a c s J. read the following judgment:—By proclamation the

Governor of Neŵ South Wales notified, in accordance with sec. 36 of the Public Works Act 1900, that certain land, upon which then existed public highways, should be appropriated and resumed for the public purpose of extending railway siding accommoda­

tion.

The legal effect of that notification is enacted in sec. 37.

The land was thereupon vested in the Chief Comniis.siouer, as Constructing Authority on behalf of the King, for the purposes of the Public Works Act in fee, “freed and discharged from all trusts,

(1) 5 El. & Bl., 618.

9 C.L.R.] OF AUSTRALIA.

563

obligations, estates, interests, contracts, charges, i-ates, rights of

H. C. OF A.

way, or other easements wliatsoever, and to tlie intent that the

1909.

legal estate therein, together with all powers incident thereto, or

Chief Com­

conferred by this Act, shall be vested in such authority as a

missioner

FOR R ail­

T ramways ways AND

trustee.”

The legislature has therefore thought fit by that section to

(N.S. \V.)

V.

state in express terms what rights shall be vested in the Con­

Attorney-

Ge .'IERAL for

structing Authorit}', and consequently it is not necessary, and as

N ew Sooth

I think not open to me, to apply any rule of implication arising

Wales.

from the dedication of the land to the public purpose. The

Isaacs J.

result of doing so would, however, probably be the same, and I do not differ from the view that, if resort must be had to implication, the highway would be necessarily incompatible with the railway purpose. In my opinion, however, sec. 37 embraces every pos­ sible right, public or private, which existed in respect of the land prior to the notification. The reference to rates is enough to show beyond doubt that municipal claims were not to .stand in the way; and a.s to the expression “right of w ay” there are various reasons for attributing to it the largest meaning it can boar. The object of the enactment is to free the land from every possible clog which could interfere with its complete dedication to the public purpose for which it is appropriated or resumed.

Crown lands are expressly mentioned, and a xdght of way over Crown land could have little meaning except as a public right of way. Looking at sec. 38, it will be seen that, in respect of Crown land, all other public purposes, dedications, and reservations, cease in favour of the purposes notified, and as the .section says, “ for the estate limited in the last preceding section ”—a potent phrase to indicate that the legi.slature had not left the measure of the Chief Commi.ssioner’s rights in respect of the land to implication. Again the expression “right of way” is found in sec. 81, and as to that the case of Llewellyn v. Vale of Glamorgan Railway Co. (1) is instructive. Speaking of the corre,spending English enactment of sec. .55 of the Railway Clauses Consolidation Act 1845, for all material purposes in the same terms, Chitty L.J. sjxeaking for the Court of Appeal said :—“ The 55th section applies to a public road and a private road without distinction, and all persons,

.

(1) (1898) 1 Q.B., 473, at p. 477.

564 HIGH COURT

[1909.

H.C. OF A. -vvliether landowners or not, who are entitled to a right of way,

1909. passing over the road (whichever be the right expression),

Chief Com- can recover the amount of the special damage su.stained, whetlier

FOK̂ RAir public or private, and quite irrespectively of the WAYS AND penalty.” And indeed the phrase “ public right of way ” is a

(N.S.W .) well known mode of expressing the right of the public to pass

Attc)rnf.y-

oiic public place to another: see per Lord Cramvorth L.C.

^Ew'̂ SouTjf

Campbell v. Lang (1); and Bourke v. Davis (2).

W ales. These considerations lead me without hesitation to tliink that Isaacs J. on the notification the public right of way was instantly by force

of sec. 3C extinguished, and the land placed in the hands of the Chief Commissioner unaffected by any rights whatsoever, public or private, except those declared by the proclamation.

And sec. 37 carries it still further. When it says “ to the intent that the legal estate therein, together with all powers incident thereto, or conferred by this Act, shall be vested in such Authority as trustee,” it means that the Commissioner is to have the fullest ownership known to the common law, unhampered by any servitude or adverse right of any kind, and also such further rights as are conferred by the Act, and as trustee.

Now that was the position when the proclamation issued. The resumption Avas complete—the higiiways absolutely gone, the Chief Commissioner the absolute owner in trust, free from encumbrances of any kind, the ownership a tabula rasa, and he could proceed with the extension in accordance with any pmvers he might possess.

He accordinglji' proceeded to place railway lines along a portion of the land which had before the proclamation been a public highway, and to occupy the whole width of it for some distance. I accept the view that for ordinary pedestrian or vehicular traffic it would henceforth be extraordinarily inconvenient and even dangerous, and for some traffic impassable, and on this basis I consider whether the respondent Attorney-General is entitled to maintain his injunction. He contends—really the municipality contends—that the acts complained of were done in the exercise of the powers granted by the Act, because one of tlie powers, namely, appropriation and resumption contained in sec. 36, was exercised,

(1) 1 Macq. H. L. Cas., 451, at p. 453.

(2) 44 Ch. D., 110.

9 C.L.R.] OF AUSTRALIA.

565

and that was only the first step in the proceeding culminating in

H. C. OF A.

1909.

the obstruction of the highway.

But the powers referred to in sec.

80 are the “ powers ” contained in Division V .: see Toronto Cor­

Chief Com­

missioner

poration V. Toronto Raihvay Go. (1). This

fasciculus is headed

FOR Rail­

“ Powers and Duties of the Constructing Authority.” They do

ways ANU

Tramways

not arise until after the Governor, who is not the Constructing

(N.S.W.)

V.

Authority, has exercised his power—not so called in the Act but

Attorney-

G eneral FOR

a power nevertheless—of providing the Constructing Authority

New South

with land to operate on and a work to do, and then, and only then

W ales.

—resumption being completed with all its effects, including the

Isaacs J.

obliteration of the highway—do the “powers” of the Constructing Authority begin. He could not obstruct a road, because at the instant the land became his the road was effaced. His power then to construct a line upon that land did not depend on any power granted to him by the Public Works Act, but by sec. 38 of the Oovernment Railways Act 1901, and his common law right as owner of the land, and that in itself places the case outside the operation of sec. 80 of the Public Works Act. And the same facts make the section for another reason inapplicable, because, at the time the acts complained of were done, it could not be said they were done on any road.

It was strenuously contended by Mr. Wise that “ road ” meant whatever was a road immediately before resumption, but that seems to me an impossible construction. If it were correct, a private road, the complete ownership of which had been taken and paid for years before, would be equally the ground­ work of an injunction unless another private road as convenient were provided. No distinction is made by the section between public and private roads, both of which are specifically included, and the Court cannot create any. The whole scheme of road provisions, from sec. 79 to sec. 83 inclusive, as well as the language in which the group is enacted as “ interfered with ” will be found opposed to the respondents’ argument. Sec. 79 pro­ vides for the case whei’e the railway simply crosses a public road, and there is no extraordinary inconvenience, but some protection is necessary. Sec. 80 is where in crossing or altering or using

(1) (1907) A.C., 31.5, at p. .324.

566 HIGH COURT

[1909.

H . C. OF A.

any I'oad—public or private—it is rendered impassable, dangerous

1909.       or exti'aordinarily inconvenient.

Chief Com-Sec. 81 allows special damage for failure to comply with sec.

M ISSIO N EK

80. Sec. 82 deals with tbe alternative case of a road being

FO R

R a i l ­

w a y s AND

capable of restoration compatibly witli the function of the rail­

TRAM W AY.S

(N.S.W.)

way, and the case of a road that cannot be restored, in other

V.

words, a road physically destroyed but still legally existent.

And,

Attorney-

General FOR

finally, sec. 83 applies whei'e the work crosses a highway (except

N ew

South

W ales.a public carriage way) on tbe level. All the roads referred to Isaacs J.are roads legally existing at the time the obstructing operations-

are conducted; and, therefore, the case of land that had up to resumption been a road, and had then ceased in law to be a road, is outside the purview of sec. 80.

One case, the Attorney-General v. Barry Bocks and Railway Go. (1), was relied on by counsel for the respondents as assisting his argument tliat sec. 80 applied to an obstruction of a formerly existing road extinguished by resumption.

I have carefully examined that case, and can find in it no sup­ port whatever for the contention. The action was brought, as the report states, to restrain the company from using a part of their railway on the site of a part of the Llantwist Road where it had been diverted for the purpose of the defendant’s railway until, &c. There is not a wmrd in the case to indicate that the company had become the owner of the soil, or that the public right of way had been extinguisbed. Two or three reference.s will, I think, place the matter beyond controversy. The article on railways in the Encyclopoidia of the Laws of England, vol. 11, p. 202, clearl} ̂ shows how distinct are the two powers. The plans to be laid before Parliament describe the lands proposed by any projected railway company to be taken compulsority, and as a separate thing must also shoiv the course and extent of any proposed diversions of roads, navigable rivers, canals, or rail­ ways.

It is impossible to suppose that mere diversion of a navigable river, canal, or other railway means compulsory acquisition with consequent extinguishment of public rights, and for this purpose rivers, canals and railways are in no different position from roads.

(1) 35 Ch. D., 573.

9 C.L.R.] OF AUSTRALIA.

567

Besides, a perusal of the following case.s, among others, will show

H. C. OF A.

very plainly that diversion is a separate power, and quite apart

1909.

from mere acquisition of title to the soil, and does not connote

Chief Com­

missioner

extinguishment of public right of way ; Pugh v. Golden Valley

EOR Kail-

Tramways wavs AND

Railway Co. (1), and Hertfordshire County Council v. Great

Eastern Railway Co. (2). The clause, as given in the last

(N.S.W.)

V.

mentioned case, empowers the company for the purpose of

Attorney-

making a railway to enter on lands, and, among other things,

General FOR

N ew South

“ to divert or alter the course of any roads or ways or to raise or

Wales.

sink any roads or waj ŝ in order the more conveniently to carry

Isaacs J.

the same over, under, or by the side of said railway.”

This must

refer to lands not the property of the railway company. There is substantially the same provision in sec. 73 {d) of the Public Works Act in relation to roads and rivers.

I agree with what has been said by the learned Chief Justice

as to the effect of sec. 83 of the Local Government Act 1906.

For the reasons I have given I concur in allowing this appeal.

Appeal allowed.

Solicitor, for appellant, J. S. Cargill.

Solicitors, for respondents, Sparke & Millard, Newcastle, by

A. P. Sparke.

C. E. W.

(1) 15 Ch. D., 330.

(2) (1909) 2 K.B., 403, at p. 409.