Melbourne Harbour Trust Commissioners v Colonial Sugar Refining Co Ltd

[1925] HCA 15

36 CLR 230

THE MELBOURNE HARBOUR TRUST

COMMISSIONERS

DEFENDANTS,

THE COLONIAL SUGAR REFINING

COMPANY LIMITED

ON APPEAL FROM THE SUPREME COURT OF Melbourne Harbour Trust-Land vested in Commissioners-Bed, soil and shores of

River Yarra-Wharf and embankments built in bed of river by riparian owner by permission granted for temporary purposes-Interest of riparian owner in wharf and embankment-Limitation of action-Adverse possession-Termination March 13, 16-

of permission-Right of riparian owner to exercise riparian rights over wharf and 20, 23-25, 27,

embankment--Melbourne Harbour Trust Act 1915 (Vict.) (No. 2697), secs. 2, 3. 9, 11, 12, 46, 52, 54, 81-85, 87-Real Property Act 1915 (Vict.) (No. 2719), secs. 16-19, 43 -Land Act 1869 (Vict.) (No. 360), secs. 3, 4, 6, 12, 45, 50.

Held, by Isaacs, Higgins and Rich JJ., (1) that the word "lands 23 in sec. 4 of the Land Act 1869 (Vict.) included land comprising the bed and shore of a navigable river, and therefore that a permission or licence to build a pier or wharf or embankment in the bed of a navigable river, such permission or licence not complying with the provisions of Part III. of that Act, gave no estate or interest in the land upon which a pier or wharf or embankment was built pursuant to such permission or licence; (2) that sec. 46 of the Melbourne Harbour Trust Act 1915 (Vict.) has the effect of vesting in the Melbourne Harbour Trust Commissioners the bed and soil and shores of the River Yarra within the metes and bounds specified free from any estate or interest which any person might, since the passing of the Melbourne Harbour Trust Act 1876 (Vict.), have acquired by reason of the operation of secs. 18 and 43 of the Real Property Act 1915 (Vict.).

36 CLR 231

The respondent company-being the registered proprietor of land of which one boundary was a portion of the River Yarra where its bed, soil and shores were vested in the Melbourne Harbour Trust Commissioners-occupied and used, for the purpose of its business carried on upon its land, a wharf and an embankment constructed by it or its predecessors in the bed of the river pursuant to a permission obtained by them and granted for a temporary purpose. Buildings were erected by the respondent company partly on its own land and partly on the embankment.

Held, by Isaacs and Rich JJ. (Higgins J. dissenting), that, when the permission was terminated, although the wharf and embankment were vested in the Melbourne Harbour Trust Commissioners, the company was entitled to use the wharf and embankment, SO long as they remained in position, for the purpose of exercising its riparian rights, subject however to whatever duties and authorities were vested in the Commissioners by the Melbourne Harbour

Per Higgins J.: The riparian right of the respondent company was a right to get to and from the river from and to the company's land the company never acquired any other riparian right; that right remains, though it is interfered with by the wharf and embankment which the company itself constructed and the company has no new right to get to and from the river at a new frontage.

Attorney-General of Southern Nigeria v. John Holt &Co. (Liverpool) Ltd., (1915) A.C. 599, applied.

Plimmer v. Wellington Corporation, (1884) 9 App. Cas. 699, distinguished. Ramsden v. Dyson, (1865-66) L.R. 1 H.L. 129; Marshall v. Ulleswater Steam Navigation Co., (1871) L.R. 7 Q.B. 166, and Lyon v. Fishmongers' Co., (1876) 1 App. Cas. 662, considered.

Per Isaacs and Rich JJ. (quare per Higgins J.): The Statute of Limitations (Part II. of the Real Property Act 1915 (Vict.) ) is applicable to a public corporation of the character of the Melbourne Harbour Trust.

Decision of the Supreme Court of Victoria (Mann J.) reversed.

APPEAL from the Supreme Court of Victoria.

An action was brought in the Supreme Court by the Colonial Sugar Refining Co. Ltd. against the Melbourne Harbour Trust Commissioners in which the statement of claim as amended was substantially as follows :-

The plaintiff says :- 1. It is a company duly incorporated. 2. It is seised of an estate in fee simple in possession in a piece of land. Such land is Crown allotment 4 of section 8 and is bounded

36 CLR 232

on the east as appears in the original Crown survey of 7 allotments

of portion No. VIII. in the parish of Cut Paw Paw county of Bourke and/or is the land more particularly described in certificate of title entered in the register book volume 2275 folio 454930 and includes the area mentioned in the defendants' notice hereinafter mentioned.

3. Such land was alienated from the Crown by Crown grant Number 24417 made to one George Ward Cole and dated 10th December 1850.

4. The land referred to in par. 2 hereof and alienated as alleged in par. 3 hereof was and is bounded on the east by the actual River Yarra from time to time existing formerly called Hobson's River.

5. The said river at all times material was for some distance above the said land a tidal navigable stream and by virtue of the matters hereinbefore alleged the plaintiff is and its predecessors in title were entitled to all natural riparian rights in relation thereto.

6. At the time of the said Crown grant and for some time there- after the waters of the said river spread a short distance from the channel thereof in a shallow backwash which tended to erode the banks and impeded access to the channel.

7. The plaintiff and its predecessors in title have at all times material conducted upon the said land a large mercantile undertaking which required the continued exercise of riparian rights and necessitated regular access to such channel for the lading and unlading of ships and lighters.

8. By and with the licence and consent of the Crown and/or of the defendants or their predecessors the plaintiff and /or its predecessors in title made and built embankments and retaining walls and strengthened and consolidated the bank of the said river

SO that by such and by filling and reclamation and building the land above high-water mark for the time being has been extended and a wharf decking and approaches thereto erected towards the said channel which has been artificially widened and deepened.

9. The plaintiff and its predecessors in title have continuously occupied the said land SO extended and the said wharf decking and approaches and conducted thereon the said undertaking and from time to time for that purpose have at great cost constructed and

36 CLR 233

erected valuable permanent improvements buildings and fixtures partly upon that part of the land which became available by such extension partly in the said river and partly upon the remaining land and they have continued to exercise such riparian rights.

10. The Crown and the defendants or their predecessors were or ought to have been aware of the acts matters and things alleged in the last two preceding paragraphs but made no objection thereto and claimed no right title or interest in any part of the said land prior to the grievances complained of in par. 13 hereof.

11. (a) The plaintiff and its predecessors in title have been in exclusive possession of the whole of the said lands including such extended part up to the existing water's edge and of the said wharf decking and approaches for a period of 30 years and upwards and any estate or interest therein to which the defendants might otherwise have been entitled has been extinguished.

(b) The plaintiff relies on Part II. of the Real Property Act 1915 and the corresponding previous enactments.

12. There was in force on 1st January 1877 a licence in relation to the land and /or the wharf in the next paragraph mentioned within the meaning of sec. 52 of the Melbourne Harbour Trust Act 1915 and such licence continues in force.

13. The defendants assuming to act under sec. 54 of the Melbourne Harbour Trust Act 1915 on or about 19th August 1919 gave a notice to the plaintiff purporting to cancel the licence or right (if any) held by or granted to the plaintiff or its predecessors in title to occupy hold or use the extended part of such land and the wharf or jetty thereon and requiring the plaintiff to give up possession of the said land and wharf or jetty to the defendants at or before the expiration of three calendar months from the service thereof.

14. The defendants threaten to and will unless restrained issue their warrant under the said section to the sheriff of Victoria requiring him to deliver possession of the said land to the defendants or some person named by the defendants and the defendants wrongfully claim that the plaintiff has no right or title therein.

14A. Alternatively, if the extended part of such land and /or the soil whereon the buildings wharf decking and approaches shown as being in the area mentioned in the defendants' said notice now

36 CLR 234

A. stand or any part thereof is vested in the defendants (which it

does not admit) the plaintiff is by virtue of its ownership of such

MELBOURNE land as is vested in it in fee simple entitled to exercise riparian

rights over the said extended part of such land and /or the said wharf decking and approaches and /or the land wharf and buildings shown in the said area without interruption by the defendants and /or is entitled to restore or to have restored to its natural condition the said area and to exercise riparian rights thereover.

15. If the said section applies to the said land the Commissioners in giving such notice did not act in bona fide exercise of the powers thereby conferred nor for any of the purposes of the Melbourne Harbour Trust Act 1915.

And the plaintiff claims :- (1) A declaration that it is entitled to an estate in fee simple in the whole of the said land bounded on the east by the actual stream of the said river.

(2) Alternatively, that it is entitled perpetually or indefinitely to the exclusive use and occupation of SO much thereof as abuts upon such stream and lies between the same and the boundary of the plaintiff's land.

(3) A declaration that the plaintiff is entitled to exercise the rights of a riparian owner in respect of the said river over the land and wharf or jetty mentioned in such notice or to an easement for the like purposes appurtenant to the land to which the plaintiff is entitled in fee simple.

(4) An injunction restraining the defendants their agents and servants from issuing such warrant or dispossessing or taking any step to dispossess the plaintiff of any part of the said land or interfering with the possession or enjoyment by the plaintiff of the

(5) Such further or other relief as to the Court seems right and in particular an order that the defendants do comply with any conditions duties or obligations whether precedent or otherwise which the Court may hold to have been unfulfilled.

The amended defence and counterclaim were as follows :- In their amended defence the defendants to the amended statement of claim said :-

36 CLR 235

36 C.L.R.]

OF AUSTRALIA. 1. They admit par. 1 of the amended statement of claim. 2. Subject to the production of the certificate of title referred to in par. 2 of the amended statement of claim they admit that the plaintiff is seised of an estate in fee simple in SO much of the land referred to in the said certificate of title as is not land included within the First Schedule to Act No. 552, the First Schedule to Act No. 763, the Second Schedule to Act No. 1119 and Part I. of the Second Schedule to the Melbourne Harbour Trust Act 1915. The said Schedules include and the said certificate of title and the Crown grant hereinafter referred to and the plan of allotment 4 in the Crown survey referred to in the said paragraph and each of them exclude all the land on the western side of the River Yarra below the mean high-water mark as it existed in 1850. Save as aforesaid the defendants deny each and every allegation contained in par. 2 of the amended statement of claim.

2A. On the true construction of the said certificate of title the land included therein extends on the eastern boundary thereof only up to the mean high-water mark of the said River Yarra as it existed in 1850, the said river having at all times been at the said land a tidal navigable stream.

2B. Alternatively, if upon its true construction the said certificate of title includes any land to the east of the said mean high-water mark of the River Yarra as it existed in 1850, such land SO included was so included by wrong description of parcels or boundaries.

Particulars.--The said certificate of title was issued to the plaintiff on 4th July 1890 in pursuance of an application made by the plaintiff to the Commissioner of Titles to amend certificate of title volume 774 folio 154622. The said certificate of title SO issued upon the said application showed as the eastern boundary of the plaintiff's land the River Yarra. The true eastern boundary of the plaintiff's land was and is not the River Yarra as it existed in 1890, but was and is the said mean high-water mark of the River Yarra as it existed in 1850.

2c. Alternatively, if upon its true construction the said certificate of title includes any land to the east of a traverse appearing upon a plan of survey by one Cunningham lodged with the said application

36 CLR 236

and thereon described as " retaining wall," such land SO included

was SO included by wrong description of parcels or boundaries.

Particulars.-The said certificate of title was issued to the plaintiff on 4th July 1890 in pursuance of the said application. The said application showed as the eastern boundary of the plaintiff's land the line of the said traverse. The said certificate of title SO issued upon the said application showed as the eastern boundary of the plaintiff's land the River Yarra. The true eastern boundary of the plaintiff's land was and is not the River Yarra as it existed in 1890, but was and is the line of the said traverse.

2D. If the said Crown grant or the said certificate of title on its true construction vested or vests in the plaintiff any land which at the time of the said Crown grant was part of the bed or banks of the River Yarra or was then daily covered by the water of the said river, such vesting was and is in derogation of the public right of navigation on the said river and was and is illegal and void.

3. The defendants admit that the land mentioned in Crown grant No. 24417 was alienated from the Crown as alleged in par. 3 of the amended statement of claim, but say that such alienation was subject to reservations and exceptions in such Crown grant expressed, and save as aforesaid deny each and every allegation contained in par. 3 of the amended statement of claim.

4. The defendants admit that the land mentioned in the said Crown grant was in 1850 bounded on the east by the River Yarra in 1850 known as Hobson's River. Save as aforesaid the defendants deny each and every allegation contained in par. 4 of the amended statement of claim.

5. The defendants admit that the said river was at all material times for some distance above the said land a tidal navigable stream. Save as aforesaid they deny each and every allegation contained in par. 5 of the amended statement of claim.

6. They deny each and every allegation contained in par. 6 of the amended statement of claim.

7. The plaintiff and its predecessors in title have at all times material conducted upon the land mentioned in the said Crown grant a large mercantile undertaking in the course of which it was convenient for the plaintiff and its said predecessors to have regular

36 CLR 237

access to the channel of the said river for the lading and unlading of ships and lighters. Save as aforesaid the defendants deny each and every allegation contained in par. 7 of the amended statement of claim.

8. They admit that works were done by the plaintiff or its predecessors in title and that thereby and by filling and reclamation a strip of dry land has been raised between the land which was above high-water mark at the time of the said Crown grant and the said river as it now flows and that the said strip of raised dry land extends beyond the high-water mark at the time of such grant and that the said river has been artificially deepened by the defendants. Save as aforesaid they deny each and every allegation contained in par. 8 of the amended statement of claim.

8A. Alternatively, as to any licence or consent alleged in par. 8 of the amended statement of claim they say that (a) the same was a licence or consent to erect a jetty only and was subject to the conditions that the said jetty should be temporary only, and should not extend further into the river than 40 feet beyond the end of the then existing jetty; it is not alleged in the amended statement of claim that the said works consisted of a jetty only or that the said works extended not further into the river than 40 feet beyond the end of the then existing jetty in fact the said works consisted of more than a jetty, and did extend further into the river than 40 feet beyond the end of the then existing jetty: (b) the alleged licence or consent was not communicated to the plaintiff or to its predecessors in title (c) they had no power to grant the same and the same is therefore devoid of legal effect: (d) the term of the same has expired or was determined by notice from the defendants to the plaintiff dated 19th August 1919: (e) they served on the plaintiff on or about 19th August 1919 a notice that they required possession of the said strip of land and of the wharves or other erections thereon (f) the piers or wharves mentioned in par. 8 of the amended statement of claim were not private property at the passing of the Melbourne Harbour Trust Act 1876 and never obtained the licence of the said Commissioners and the defendants required and require possession thereof in order to remove and /or alter and/or repair the same and to perform the duties imposed

36 CLR 238

upon the defendants by the Melbourne Harbour Trust Act 1915

(g) the same was not in writing: (h) the secretary for the time being of the defendants did not at any time certify upon any licence alleged that the conditions thereof had been duly performed: (i) there was no consideration or alternatively no fair and reasonable consideration paid for the same (j) the consideration for the same was not such as in the judgment of the defendants was deemed to be the true and fair worth and value thereof to the person obtaining the same (k) no valuation was made prior to the granting of the same and no valuation was prior to such grant signed or certified by the person making such valuation to be true and accurate to the best of his judgment and belief: (1) no notices as required by sec. 86 of the Melbourne Harbour Trust Act 1915 and corresponding prior enactments were given or served prior to the grant of the same.

8B. The licence (if any) from the defendants' predecessors was not made or given in accordance with the Land Act 1869 and was ultra vires and invalid.

9. The defendants admit that the plaintiff and its predecessors in title have used the said strip of land and piers and wharves and have erected buildings and fixtures thereon. Save as aforesaid they do not admit any of the allegations contained in par. 9 of the amended statement of claim.

9A. The plaintiff and its predecessors in title have at all times or alternatively at all times until shortly prior to the issue of the writ herein used and /or occupied the same as under and subject to the jurisdiction and powers of the defendants and as part of the Port of Melbourne as defined in the Melbourne Harbour Trust Act 1915 and corresponding prior enactments and not otherwise.

10-11. They deny each and every allegation contained in pars. 10 and 11 of the amended statement of claim.

12. They deny each and every allegation contained in par. 12 of the amended statement of claim.

12A. Alternatively, if the allegations contained in par. 12 of the amended statement of claim are true the plaintiff by reason thereof ought not to be admitted to allege and is estopped from alleging that the title of the defendants to the land referred to in the said paragraph has been extinguished or that the plaintiff is entitled

36 CLR 239

to an estate in fee simple therein or that it is entitled perpetually or indefinitely to the exclusive use and occupation of any part thereof or that it is entitled to exercise any rights in the capacity of a riparian owner in respect of the said river over any of the said land.

13. The defendants admit that they gave the notice mentioned in par. 13 of the amended statement of claim on or about 19th August 1919. Save as aforesaid they do not admit any of the allegations contained in par. 13 of the amended statement of claim.

13A. The land referred to in the notice mentioned in par. 13 of the amended statement of claim was land vested in the defendants of which the defendants desired to take possession and the said notice was given under the authority and in execution of the Melbourne Harbour Trust Act 1915.

14. The defendants do not admit any of the allegations contained in par. 14 of the amended statement of claim.

15. They deny each and every allegation contained in par. 15 of the amended statement of claim.

16. They do not allege and never have alleged that the plaintiff is not entitled to an estate in fee simple in possession in SO much of the said land as is not included in any of the Schedules mentioned in par. 2 hereof.

17. The remainder of the said land, being the strip of land mentioned in par. 8 hereof, and all wharves piers or erections thereon or abutting thereon on the east are and at all material times have been continuously vested in the defendants by virtue of sec. 47 of Act No. 552, sec. 12 of Act No. 763, sec. 46 of Act No. 1119 and sec. 46 of the Melbourne Harbour Trust Act 1915, and the plaintiff and its predecessors in title had no estate or interest in the said strip of land at the time of the passing of the Melbourne Harbour Trust Act 1876.

18. Alternatively, the said strip of land as it existed from time to time was, when the plaintiff and its predecessors began to occupy the same, Crown land, and no part of the said strip of land was at any time alienated by the Crown, and the defendants rely upon sec. 17 of the Real Property Act 1915 and the corresponding prior enactment or enactments.

19. Alternatively, the land alienated by the said Crown grant

36 CLR 240

No. 24417 was SO alienated before the passing of the Water Act

1905, and the bed and banks of the said river as existing at the date of the said Crown grant are to be deemed to have been and remained the property of the Crown. The strip of land mentioned in par. 8 hereof is part of the said bed and/or banks as then existing and is the property of the Crown subject only to the rights of the defendants conferred upon the defendants by the Acts mentioned in par. 2 hereof. And the defendants rely upon secs. 4 and 5 of the Water Act 1915 and the corresponding prior enactment or enactments.

20. The said strip of land was at the time of the passing of the Melbourne Harbour Trust Act 1876 and at all times since has been and is part of the Port of Melbourne and is subject to the exclusive control and management of the defendants.

21. It is and at all material times was ultra vires the defendants to alienate or part with the said strip of land or any part thereof or to confer upon the plaintiff or its predecessors in title expressly or by implication from conduct or otherwise howsoever any rights therein or thereover save in accordance with the provisions of the Melbourne Harbour Trust Act 1915 and the corresponding prior enactment or in any way or by any means to part with or fetter the exclusive control and management of the Port of Melbourne conferred upon them by the said Acts, or to bind themselves not to use or in any way to part with or fetter or prejudice the exercise of any of the powers conferred upon them by the said Acts or any of them.

21A. It was at all times ultra vires the defendants and their predecessors to grant expressly or by implication a perpetual or indefinite right to the exclusive use and occupation of any part of the Port of Melbourne.

22. The wharf or jetty mentioned in the notice referred to in par. 13 of the amended statement of claim is in part erected over the bed and /or banks of the said river as now existing and not upon the land alienated by the said Crown grant or any part thereof or upon the said extended land or any part thereof, and the plaintiff has no right title or interest in to or over any part of the said bed or banks as now existing.

In their amended counterclaim the defendants say :- 1. They repeat pars. 17 and 20 of the amended defence, and the defendants counterclaim

36 CLR 241

(1) For possession of the said strip of land and all wharves piers and erections thereon or abutting thereon on the east;

(2) For a declaration that the said land piers wharves and erections are part of the Port of Melbourne, and are vested in and subject to the exclusive control and management of the defendants.

The reply and defence to the counterclaim as amended were as follows :-

The plaintiff as to the amended defence says :- 1. Save as to admissions therein contained it joins issue thereon. 2. It will object that pars. 2A, 2B, 2c, 8A, 9A, 18, 19, 20 and 21 afford no defence to the plaintiff's statement of claim.

3. The plaintiff and /or its predecessors in title in building the piers wharves retaining walls and in strengthening extending and consolidating the bank of the river SO that by such means and by filling and by reclamation their land was extended beyond the high-water mark at the time of the Crown grant and in constructing and erecting valuable permanent improvements buildings and fixtures partly upon that part of the land which became available by such extension as is alleged in pars. 8 and 9 of the statement of claim acted as the defendants and / their predecessors well knew upon the belief that such piers wharves retaining walls bank and the land SO extended would and did become its or their property and in reliance upon such belief as the defendants and their predecessors well knew expended large sums of money thereon but neither the defendants nor their predecessors made any objection to it SO acting or claimed any right title or interest in any part of the said land prior to the grievance complained of in par. 13 of the statement of claim wherefore the defendants are precluded and estopped from setting up or relying upon the matters alleged in pars. 8A, 17, 18 and 19 of the defence.

4. As to pars. 17, 19 and 20 of the amended defence it says that if any of the said land therein mentioned was vested in the defendants (which it does not admit) it was SO vested subject to the estate and interest of the plaintiff referred to in pars. 2 to 12 of the statement of claim.

4A. If any of the land mentioned in the defendants' said notice

36 CLR 242

is vested in the defendant which is not admitted the plaintiff is

by virtue of its ownership of such land as is vested in it in fee simple entitled to exercise riparian rights over the said area and the wharf and decking and approaches thereto shown therein without interruption by the plaintiff and /or is entitled to restore or to have restored to its natural condition the said area and to exercise riparian rights thereover.

In its defence to the amended counterclaim the plaintiff says:- 1. It denies each and every allegation in pars. 17 and 20 of the amended defence as repeated by par. 1 of the counterclaim.

2. It repeats pars. 3 and 4 of the reply. 3. It repeats pars. 2 to 12 of the amended statement of claim and will contend that the land mentioned in pars. 17 and 20 of the defence as repeated was subject to the estate and interest of the plaintiff described in the said pars. 2 to 12.

4. It will rely upon the provisions of sec. 52 of the Melbourne Harbour Trust Act mentioned in par. 12 of the statement of claim.

The material facts sufficiently appear in the judgments hereunder. The action was heard by Mann J., who made an order declaring

36 CLR 243

boundary of the land included in the said certificate of title or any part thereof and from interfering with the plaintiff's possession and enjoyment of any. part of the said land; and ordering that MELBOURNE the counterclaim be dismissed.

From that decision the defendants now appealed to the High Court. Latham K.C. (with him Fullagar), for the appellants. The certificate of title issued to the respondent in 1890 could not go beyond the Crown grant of 1850, and on its proper construction gave a title only to the mean high-water mark in 1850 with any extension that afterwards occurred by natural accretion but not by artificial encroachment. Par. 14A of the statement of claim has no support in law, for riparian rights do not include a right to build a wharf in the bed of a river or to encroach upon the river. Under sec. 46 of the Melbourne Harbour Trust Act 1915 the bed and soil and shores of the river were absolutely vested in the appellants and the only rights and interests which are preserved are those in the pieces of land mentioned in that section. Secs. 4, 5 and 6 of the Water Act 1915 are an answer to any claim of the respondent to the bed of the river. The doctrine of estoppel cannot be used to give efficacy to acts which are ultra vires (Ayr Harbour Trustees v. Oswald

36 CLR 244

General v. Tomline 1 ). If a riparian proprietor makes any

encroachment upon the bed of the river, the owner of the bed becomes owner of the obstruction and may remove it; and if the Crown or the owner of the bed of a river makes an embankment in the bed of the river between the riparian proprietor and the water, the riparian owner may cross the embankment to exercise his riparian rights or may remove the embankment. (See Marshall v. Ulleswater Steam Navigation Co. 2; Lyon v. Fishmongers' Co. 3 North Shore Railway Co. v. Pion 4 Attorney-General of Southern Nigeria v. John Holt &Co. (Liverpool) Ltd. 5.) An alternative to the view that a riparian owner who reclaims land in the bed of the river is a trespasser is that he still has his riparian rights and may exercise them by going over the embankment but he cannot prevent the Crown from removing the embankment. If the respondent was in that alternative position, it was using the land in a lawful manner and no right of action accrued to the Crown under secs. 18 and 43 of the Real Property Act 1915, and the respondent therefore can gain nothing from those sections. There was no such possession by the respondent as would bring those sections into operation for its benefit.

[ISAACS J. referred to Leigh v. Jack 6.] The wharf was not a private wharf at the time the Melbourne Harbour Trust Act 1876 was passed, and it never afterwards became one. Land can be disposed of by the Crown only in the way prescribed by statute, and no acquiescence in an illegal disposition by an officer of the Crown is of any effect (Ontario Mining Co. v. Seybold 7. That principle applies not only to the Crown but to a public corporation such as the appellants are, and no acquiescence by them can make intra vires what was originally ultra vires. Prior to 1877 the Crown could upon any view of the law have removed the embankment and wharf, for there was no legal licence in force. The Melbourne Harbour Trust Act 1876 vested both the embankment and the wharf in the Commissioners. It is clear that in 1877 the respondent's predecessors were not the owners of the disputed land on the north, nor were they the owners of the disputed land on the

1(1880) 14 Ch. D. 58, at p. 69. 2(1871) L.R. 7 Q.B 166, at p. 172. 3(1876) I App. Cas. 662, at p. 682. 4(1889) 14 App. Cas. 612, at pp. 5(1915) A.C. 599, at pp. 611-615. 6(1879) 5 Ex. D. 264. 7(1903) A.C. 73, at pp. 79, 83. 36 CLR 245

south, which was then under water. There was no licence in existence upon which sec. 52 of the Melbourne Harbour Trust Act 1915 could operate. Starting from the assumption that Mann J. was right in his finding that nothing that was done before 1877 between the appellants' predecessors and the Crown gave any legal rights to the respondent in respect of the embankment or wharf, what occurred afterwards did not give any such rights. As to the wharf, the special case upon which the decision of àBeckett J. was given in 1897 (Melbourne Harbour Trust Commissioners v. Colonial Sugar Refining Co. 1 ) shows that it was within the Port of Melbourne. The northern part of the embankment having been made before 1877, no rights in respect of it can be claimed under sec. 82 of the Melbourne Harbour Trust Act 1915 or the corresponding sections of the Acts of 1876 and 1890. The Commissioners had no power to dispose of any land comprising embankments made by riparian owners under licence unless the conditions of sec. 82 were complied with, and in fact the conditions were not complied with. All the land in dispute and the wharf were vested in the Commissioners by the Melbourne Harbour Trust Act 1876. Sec. 46 of the Melbourne Harbour Trust Act 1915 does not apply to preserve any estate or interest of the respondent, first because it had none, and, secondly, because any estate it claims is in the bed or banks of the river and not in the "pieces or parcels of land " referred to in sec. 46. The effect of that section is to continue the vesting which was made by the Act of 1876 and to preclude the application of the Statute of Limitations (Real Property Act 1915, secs. 18, 43) in respect of any land which was vested in the Commissioners by the Act of 1876. Sec. 85 is mandatory in its terms, and any licence which the Commis- sioners might purport to grant in a manner inconsistent with its terms would be ultra vires and invalid. There is nothing in this case which can be said to be a licence within that section. There is nothing in the Act which either expressly or impliedly gives the Commissioners power to grant an irrevocable licence. A licence is in its essence revocable (Wood v. Leadbitter 2 Hurst v. Picture Theatres Ltd. 3 ). The Commissioners have no power to deal with

1(1897) 3 A.L.R. 231. 2(1845) 13 M. &W. 838. 3(1915) 1 K.B. 1, at pp. 10, 13. 36 CLR 246

land which is vested in them except in the way provided by the

Act (Ayr Harbour Trustees v. Oswald 1 Mulliner v. Midland Railway Co. 2 ).

[HIGGINS J. referred to Stourcliffe Estates Co. v. Bournemouth Corporation 3.]

If there cannot be a legal origin for a grant, the Court will not presume that there was such a grant (Rochdale Canal Co. v. Radcliffe CO. LTD.

4 York Corporation v. Henry Leetham &Sons Ltd. 5 South- Eastern Railway Co. v. Cooper 6 ). The maxim omnia presumuntur rite esse acta cannot be applied to a transaction in respect of which all the facts are known (Symons v. Schiffmann 7; Schiffmann v Whitton 8 Anderson v. Morice 9 Ajum Goolam Hossen &Co. v. Union Marine Insurance Co. 10; Folkestone Corporation V. Brockman 11 ). Ramsden v. Dyson 12 and Plimmer V. Wellington Corporation 13 are distinguishable, for in both of those cases it was assumed that there was power to make the grant which was alleged to have been made. Attorney-General of Southern Nigeria v. John Holt &Co. (Liverpool) Ltd. 14 does not apply. That was a case of a subject exercising his right to protect his land from erosion by the sea, and there was a duty on the Crown to protect the foreshore from such erosion and a power in the Crown to grant a licence to the subject to protect the foreshore. That case did not purport to lay down the law as to the riparian owner who reclaimed the foreshore.

Sir Edward Mitchell K.C. and Owen Dixon K.C. (with them Stanley Lewis), for the respondent. If the acts done on behalf of the Crown before 1877 were null and void under sec. 4 of the Land Act 1869, the Crown had then a right to enter upon and resume possession of the wharf and SO much of the reclaimed land as then existed, and as the Crown did not exercise that right within 15 years the respondent is, under sec. 43 of the Real Property Act 1915,

1(1883) 8 App. Cas., at p. 634. 2(1879) 11 Ch. D. 611. 3(1910) 2 Ch. 12. 4(1852) 18 Q.B. 287, at pp. 314. 5(1924) 1 Ch. 557. 6(1924) 1 Ch. 211. 7(1915) 20 C.L.R. 277, at p. 281. 8(1916) 22 C.L.R. 142. 9(1874) L.R. 10 C.P. 58, at pp. 67. 10(1901) A.C. 362, at p. 366. 11(1914) A.C. 338, at p. 375. 12(1865-66) L.R. 1 H.L. 129. 13(1884) 9 App. Cas. 699. 14(1915) A.C. 599. 36 CLR 247

entitled to the land and the wharf. If sec. 4 did not apply, the respondent has an irrevocable licence under which it may keep the land and the wharf. The provisions of secs. 18 and 43 of the Real Property Act 1915 apply to the appellants (Magdalen College, Oxford, V. Attorney-General 1 Brighton Corporation v. Guardians of the Poor of Brighton 2; Midland Railway Co. v. Wright 3; Ayr Harbour Trustees v. Oswald 4; Iredale v. Loudon 5 and the respondent's long possession of the reclaimed land had the effect of extending its title to the present water's edge. Sec. 46 of the Melbourne Harbour Trust Act 1915 should not be interpreted SO as to vest in the Commissioners land to which the respondent had already acquired title. That Act, like the Act of 1890, was a consolidation Act and was not intended to alter the law (Melbourne Corporation v. Barry 6 ). Sec. 32 of the Acts Interpretation Act 1890 was properly applied by Mann J. to the interpretation of sec. 46. A licence under sec. 81 of the Melbourne Harbour Trust Act 1915 may be for a permanent wharf, and it is not necessary that such a licence shall be in writing (Kearns v. Cordwainers' Co. 7 ). Sec. 4 of the Land Act 1869 did not apply to land which was part of the bed or banks of a port or navigable river. That Act dealt with the sale and occupation of land. The right of the Crown to grant licences to riparian owners and others to build piers and embankments for the purpose of access to their land was not affected by that Act, but was dealt with by other statutes. So far as that right not dealt with by other statutes, it remained part of the prerogative of the Crown. If the Crown gave a licence to build a wharf or pier it could not afterwards treat the wharf or pier as an obstruction and remove it unless it was in the nature of a nuisance (Hargrave's Law Tracts, p. 85; Angell on Tide Waters, p. 196), and there is no allegation here of a nuisance.

[HIGGINS J. referred to R. v. Lord Grosvenor 8.] The wharf in question was a private wharf, and the existence of private wharves is contemplated by the Melbourne Harbour Trust Acts. Having been built before 1877, this wharf must be taken to

1(1857) 6 H.L.C. 189. 2(1880) 5 C.P.D. 368. 3(1901) 1 Ch. 738. 4(1883) 8 App. Cas., at p. 634. 5(1908) 40 Can. S.C.R. 313. 6(1922) 31 C.L.R. 174. at p. 187. 7(1859) 6 C.B. (N.S.) 388, at p. 391. 8(1819) 2 Stark. 511. 36 CLR 248

H have been constructed under the authority of the prerogative.

[Counsel referred to Plimmer v. Wellington Corporation 1; Liggins

Inge 2 Booth v. Ratté 3.] It should be presumed as matter of fact that a licence was granted by the Crown to erect the wharf. The presumption arises from the facts that took place with the knowledge of every one concerned. Attorney-General of Southern Nigeria v. John Holt &Co. (Liverpool) Ltd. 4 establishes the principle that if a wharf is constructed by a riparian owner which the Crown might license and the Court can infer that the Crown knew what was being done and stood by, SO that the owner might assume that the Crown was permitting the construction of the wharf as a permanent structure, then a licence will be presumed (see McLean Bros. &Rigg Ltd. v. Grice 5 The power in sec. 87 of the Melbourne Harbour Trust Act 1915 to grant a licence includes power to grant an irrevocable licence, and if when the licence was granted no time was mentioned the licence is perpetual. If the only condition of the licence which was not complied with was the payment of a reasonable rent, the principle of Duke of Beaufort V. Patrick 6 would prevent the respondent from being dispossessed Sec. 46 was not intended to take away riparian rights or to affect a title acquired by adverse possession in the lands vested in the Commissioners by the Act of 1876. An intention to take away property should not be imputed to the Legislature unless it is expressed in clear terms (Commissioner of Public Works (Cape Colony) v. Logan 7 ). The grant of land bounded by a river is a shifting freehold (see Scratton v. Brown 8; Smart &Co. V. Suva Town Board 9 ), and in this case the eastern boundary of allotment 4 shifted as the mean high-water mark shifted, and, when the Melbourne Harbour Trust Act 1915 was passed, that boundary was where in fact and in law it now exists. There was, by what occurred prior to 1877, a de facto settlement of that eastern boundary, and the long-continued possession by the respondent justifies a presumption that there was such a settlement. That eastern boundary is the

1(1884) 9 App. Cas., at p. 710. 2(1831) 7 Bing. 682. 3(1890) 15 App. Cas. 188. 4(1915) A.C. 599. 5(1906) 4 C.L.R. 835. 6(1853) 17 Beav. 60. 7(1903) A.C. 355. 8(1825) 4 B. &C. 485. 9(1893) A.C. 301. 36 CLR 249

western boundary at that place of the land vested in the Commis- sioners. The Land Act 1869 did not prevent an acquiescence by the Crown in the settlement of a boundary in that way. The certificate of title issued in 1890 accurately described the state of things which then existed. At that time the boundary was fixed on the ground and the Crown acquiesced in that being done under circumstances which, as against the Crown, fixed the boundary. Sec. 46 of the Melbourne Harbour Trust Act 1915 is not the vesting section but sec. 11 is, and the latter section shows that it was not intended to make a new title in 1915. The words of sec. 46 are not apt to bring about an extinction of rights which had already been acquired. The licence to erect the wharf imported a licence to use it. The licence to erect, having been executed, was ended, and there remained the licence to use. The existence of the wharf. therefore, could never be a violation of the right of the Crown. The subsequent conduct of the Crown and the Commissioners might well have induced the belief that the wharf was to be allowed to remain in position for an indefinite time for the use of the respondent. The respondent thus obtained an equitable easement to continue to use the wharf. [Counsel also referred to Portsmouth Corporation v. Smith 1; Somerset Coal Canal Co. v. Harcourt 2; De Bussche v. Alt 3.]

Latham K.C., in reply. Secs. 18 and 43 of the Real Property Act 1915 do not apply to land vested in the Commissioners. Where Parliament has indicated that land shall be dedicated to a particular public purpose, the operation of those sections is excluded. Public rights cannot be defeated by acquiescence (South Australia V. Victoria 4 ). The wharf in this case was not a private wharf.

A private wharf must at a past date have been private property and must have been licensed in a formal manner. The question of the settlement of a doubtful boundary is not open on the pleadings. From acquiescence or quiescence no agreement to settle the boundary can be presumed.

Cur. adv. vult.

1(1885) 10 App. Cas. 364, at 2(1857) 24 Beav. 571. 3(1878) 8 Ch. D. 286. pp. 371, 375. 4(1911) 12 C.L.R. 667, at p. 725. 36 CLR 250

The following written judgments were delivered :-----

ISAACS J. This litigation began by the respondent, the Colonial Sugar Refining Co. Ltd., suing the appellants, the Melbourne Harbour Trust Commissioners, in the Supreme Court of Victoria, to obtain declarations respecting the Company's proprietary rights in relation to land. The action was primarily brought to protect the Company from the anticipated consequences under sec. 54 of the Trust's statute (Act No. 2697 of 1915),-namely, ejection by the sheriff--of non-compliance with a notice from the Trust dated 19th August 1919. The subject matter of the notice and the action is a strip of land immediately fronting the River Yarra and also two wharves or jetties standing in the river in front of the strip of land. The method of protection adopted was by seeking declarations of right. But, first, it is necessary to distinguish between various portions of the property included in the notice. The main portion of the strip in dispute lies to the north and will be referred to, where necessary, as the northern portion; the rest, where necessary, will be called the southern portion of the strip. These two portions are claimed under entirely different circumstances. A third portion of the property included in the notice consists of the southern of the two wharves. It is said by the appellants that that wharf is as a matter of language included in the declaration of absolute title in favour of the respondent, and should be excised. The respondent does not admit its verbal inclusion but does not claim it, and admits that, if required, it may be clearly excluded. Nothing more will be said about that wharf, except SO far as reference is involved in dealing with the reclaimed land in the southern portion of the strip.

The declarations sought were, in effect, (1) that the Company is entitled in fee simple to the strip of land, or, alternatively, to its exclusive use and occupation; (2) that the Company is entitled to exercise riparian rights over the strip of land and the wharf or jetty or else to an easement appurtenant to other land of the Company adjacent to the strip referred to. The Trust, besides contesting the claim by way of defence, added a counterclaim, claiming (1) possession of the strip and all wharves, piers and erections to the east of it and (2) a declaration that the strip and wharves, piers and erections are vested in and subject to the exclusive control and

36 CLR 251

36 C.L.R.]

OF AUSTRALIA. management of the Trust. It is needless to follow the technicalities of the pleadings, because the whole contest, as fought at the trial and at this bar, is as to the accuracy on the facts proved of the MELBOURNE judgment of Mann J. His Honor determined (1) that the Company owns the strip in fee; (2) that the Company is entitled to the perpetual use and occupation of the wharf, subject to the Trust's statutory powers of control and management and subject to all public rights in or relating to the river, and (3) that the plaintiff as owner of the adjoining land is entitled to an easement over the river-bed under the wharf to have and keep the wharf perpetually where it stands. There were consequential orders, which need not be mentioned. The counterclaim was dismissed.

The reasons of the learned Judge were stated with great care and clearness, and may be summarized as follows He rejected the contention of the Company that its documentary title carried its ownership to the present stream of the River Yarra. He limited the effect of the documentary title to the former line of the river, which excluded the strip of land in question. He rejected the Company's contention that the Crown prior to 1877 had created any binding obligation or interest whereby the Company could have sustained as against the Crown its claim of ownership or easement in respect of the northern portion of the strip of land. His Honor's opinion as to that rested on sec. 4 of the Land Act of 1869. The learned Judge, however, was of opinion that by longa possessio of the Company the title of the Trust to the whole strip had been extinguished, and that therefore the Company must be regarded as owner of the strip in fee simple. As to the wharf, which throughout means the northern wharf, his Honor thought the Trust had never been out of possession of the bed of the river, and therefore still remained owner, but that an irrevocable licence had been given to have and use the wharf for ever, and that such licence was lawful and enured to the Company's benefit.

One observation may be advantageously made at the outset. Neither side raised, and therefore the learned Judge did not determine, any issue as to whether the wharf is or might become a nuisance, or, on the whole, an obstruction to the navigation of the River Yarra. The respective claims of the parties and the judgment

36 CLR 252

proceed on the basis that, for the purpose of determining the creation or preservation of proprietary rights in respect of the wharf, its actual or possible effect on the navigation of the river always was and still is immaterial.

I proceed now to state in logical order the issues of fact and law which present themselves, without regard to the order in which the parties have approached them.

The Trust founds its position on the Melbourne Harbour Trust Act 1915. That is the extant charter of the Trust; and to that Act it must look for its existence, its property, its powers and its duties. The statute is part of the consolidation which the Victorian Parliament undertook in 1915, but it repealed by sec. 2 all prior legislation on the subject, and now stands as the only repository of the will of the Legislature as to the property and powers of the Trust. That is subject to one qualification only: that, if there be any legislative direction elsewhere controlling the construction of the Act-as, for instance, in the Acts Interpretation Act 1915 effect must be given to the direction. There is, however, nothing in the existing Acts Interpretation Act which would affect the relevant portions of the Harbour Trust Act, and I am unable to see any advantage in discussing the effect of the former and now repealed Acts Interpretation Act on the former and now repealed Harbour Trust Act.

The Melbourne Harbour Trust Act, speaking as at 6th September 1915, first enacted by sec. 2 a repeal of existing law with a saving proviso which is important. Part I. of the Act is devoted to the constitution of the Trust, declaring the then Commissioners to be deemed appointed under the Act, making them a body corporate. But it is a new corporation, just as much as if there never had been such a corporation. Sec. 9 makes a legislative appointment of the then present Commissioners as the first Commissioners under the Act. Sec. 11, which is an important provision in relation to the present case, effects a transfer to the present corporation of all property, real or personal, and all powers, authorities, immunities, rights, privileges, functions, obligations and duties and liabilities existing in the earliest corporation in 1912, immediately before the

36 CLR 253

existence of the immediate predecessors of the present corporation.

I shall return to this section presently.

Under Part III., headed Property and Powers of Commissioners,' we find sec. 46, which is in these terms The bed and soil and shores of the waters and the pieces or parcels of land within the metes and bounds described in Parts I. and III. of the Second Schedule to this Act excluding therefrom the pieces or parcels of land within the metes and bounds described in Part II. of the said Schedule are hereby declared to have been vested in the Commis- sioners upon trust for the purposes of the said Act, and the same shall continue to be vested in the Commissioners upon trust for the purposes of this Act, but subject to the estate and interest of any person in such pieces or parcels of land existing at the time of the passing of the Melbourne Harbour Trust Act 1876 and to the right of His Majesty to resume possession at any time without payment of compensation of any land required for purposes of national defence or for giving ingress egress and regress to and from the shore or for the purpose of continuing the direct channel from Hobson's Bay at Port Melbourne in and upon the land reserved for that purpose through and into the River Yarra Yarra." It is contended on behalf of the Trust that sec. 46, speaking in the present-that is, as at 6th September 1915-vests in the new corporation by clear and unambiguous words all the bed and soil and shores of the waters and the pieces or parcels of land within the metes and bounds" mentioned, and vests that property absolutely and unqualifiedly upon trust for the purposes of the Act subject only to three reservations, namely, (1) the estate and interest of any person in such pieces or parcels of land existing in 1876; (2) Crown power of resumption, and (3) rights saved by sec. 2. The contention is that, even though apart from the new legislation it could be held that by operation of the Statute of Limitations (Real Property Act, secs. 18 and 43) the Commissioners' title to land was extinguished prior to 1915, the clear and emphatic words of sec. 46 vest the land absolutely in the Trust. Before that is dealt with some attention must be given to sec. 11. That section is a reproduction of sec. 4 of the Act of 1912 (No. 2449). By that Act the then existing harbour corporation (which I shall call the first corporation) was

36 CLR 254

abolished, and a new one (the second corporation) was brought into

being. But the Act of 1912 took a short cut as to property and powers. Sec. 4, which was in practically the same terms mutatis mutandis as sec. 11 of the present Act, effected a statutory and complete transfer of all property and powers, rights and obligations, &., from the first to the second corporation. The specific enactments as to property and powers, &., were not repeated. They were found by reference to the Act of 1890 and its amendments and to what had been done under and in pursuance of those Acts, and also, I may add, to whatever events the relevant law had operated upon to affect rights and obligations. The first corporation stepped out of its shoes and the new corporation stepped in but the shoes were still the old shoes. In 1915, however, the same course was not adopted. The present Act independently constitutes a new corporation (the third), and does not content itself with the old shoes. It entirely repeals the old Act of 1890 and all other Acts, including both the Act of 1912 and all those which that Act left unrepealed. It frames for itself a code both as to property and powers. It even alters some of the sections-as. for instance, in sec. 48. It enacts in relation to the new (third) corporation a new independent vesting section as to the Port, namely, sec. 46 as part of the new Part III., headed "Property and Powers of Commissioners." It enacts its own saving section (sec. 2) so as to preserve all things done "under the said Acts," that is, the Acts now repealed. But it adds by sec. 11 the provisions of sec. 4 of the Act of 1912. Sec. 11 must be closely examined. It declares that (1) all property, real and personal, and all powers, authorities, immunities, rights, privileges, functions, obligations and duties and liabilities which (2) immediately before the appointment of Commis sioners under the Melbourne Harbour Trust Act 1912 were vested in or imposed upon the Melbourne Harbour Trust Commissioners by the Melbourne Harbour Trust Act 1890 or by any other Acts or by any means whatever, shall (3) by virtue of this Act (4) be and become transferred to and vested in and imposed upon and executed by (5) the Commissioners appointed pursuant to this Act. In other words, the property and functions, &., which by sec. 4 of the Act of 1912 were transferred from the first corporation to the second,

36 CLR 255

are now by sec. 11 transferred from the second to and vested in the third. I am not very sure what is the total effect of that section. Standing by itself, it would not do more or less than put the third corporation in 1915 in exactly the same position as that in which the second corporation was put in 1912. That is, it transfers the same property and the same functions, rights and obligations, &., unaltered in any respect whatever by anything that had happened between 1912 and 1915. But, as to functions and powers, clearly the independent and specific enactments as to functions which follow must be regarded as the really operative and prevailing enactments. One could not go back by force of sec. 11 to functions existing under the repealed Acts, and say "these are the functions of the present corporation." That could have been and must have been said under the Act of 1912, because that Act depended solely on incorporation by reference. Verbally there is an overlapping of functions when sec. 11 and other sections are read together. But operatively the specific enactments must govern. Similarly with respect to property. Sec. 11 verbally includes all property, including the Port which in 1912 under the Act of 1890 the first corporation held immediately before the Commissioners under the Act of 1912 were appointed. It does not include other property acquired or even other contracts entered into by the second corporation, and as to that other property there appears to be a gap, which may or may not be worth attention, for sec. 2 does not transfer, it preserves. But when we come again to Part III. we find an overlapping not only of powers but also of property. Sec. 46 very specifically vests in the third corporation in terms to be presently considered the Port as scheduled. It was urged that sec. 46 is not a vesting section but a mere descriptive section, and that sec. 11 is the only vesting section. I have said sufficient to show that this cannot be so. Besides, it is not at all clear that the Port as described in the Schedule to the Act of 1915 is the same as the Port as described in the Schedules to the Act of 1890 and other Acts as adopted in 1912. The Schedule to the Act of 1915 was, on the face of it. specially framed anew at some considerable time after 1890. After examining the repealed Acts I believe it appears for the first time in 1915. Obviously, when that Schedule is compared with

36 CLR 256

OF A. the Schedule of 1890, the later one represents a carefully surveyed

plan, and I do not think it an unreasonable inference to conclude

MELBOURNE that it represents an effort on the part of Parliament to consolidate

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 bounds 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 the 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 be applied in point of time in accordance with the collocation. Next, "the said Act" is prior legislation. The prior legislation, however,

36 CLR 257

that is mentioned previously is various. It includes even the Marine Act 1915 (see sec. 39). But that is transparently inappropriate to "the said Act" in sec. 46. Other prior legislation is mentioned in sec. 2, the repealing section, and there we find the expression "the said Acts." Among " the said Acts" is the Act of 1912 (see Schedule I. to the Act of 1915). And, as by force of sec. 4 of that Act, as mentioned, all the property vested by the others of "the said Acts" was vested in the second corporation for the purposes of the Act of 1912 (which incorporated all the purposes of the other Acts), I take it that the said Act" in sec. 46 refers to the Act of 1912. We may then regard sec. 46 as declaring that the lands in Part I. of the Schedule of the Act of 1915 (excluding those in Part II.) "are hereby declared to have been vested in the Commissioners of 1912 upon trust for the purposes of the Act of 1912." So far, the scheme of sec. 46 of the Act of 1890 is followed. There can, therefore, be no question, notwithstanding the newer wording of the Schedule and notwithstanding anything that had occurred, that the Port as finally described in Schedule II. must, by force of parliamentary declaration, be taken as having been in law vested in the second corporation immediately prior to the 1915 Act, and for the purposes of the Act of 1912. Then says the section: "and the same shall continue to be vested in the Commissioners upon trust for the purposes of this Act." Words, as it seems to me, could not be plainer. The Port as described shall continue to be vested in the third corporation. The word "continue" does not, of course, mean continue for ever, no matter what may happen in the future. It means that the lands described, having been up to the present vested in trust for the purposes of the then current Harbour Trust Act in the second corporation, shall, without any break in the continuity of dedication, be in 1915 vested in trust for the purposes of the new Act in the new corporation.

Nothing can be implied as inconsistent with that vesting at that time, and to hold that at that time the strip was not vested in the trust and was vested in the Company would be an inconsistent implication. Whatever exceptions to or qualifications of that declaration are permissible must be found in the Act itself. In sec. 46 the Legislature has expressed some limitations, namely, (1)

36 CLR 258

subject to the estate and interest of any person in such pieces or parcels of land existing at the time of the passing of the Melbourne Harbour Trust Act 1876 and (2) Crown resumption rights. In sec. 2 also we find legislative saving of agreements, leases and licences, &., "under the said Acts." But, except the statutory qualifications, sec. 46 is a parliamentary grant (using the word "grant " in a non-conveyancing sense) in 1915 of the land of the Port to the new corporation constituted by the Act itself. The title of the corporation as owner must be taken as existing on 6th September 1915 and, therefore, not to have been destroyed by any operation of the Statute of Limitations or otherwise. Further, the source of title is a direct parliamentary enactment, and not the gift, transfer or conveyance of any predecessor. The corporation does not claim through anyone it does not take such title as anyone else had with all weaknesses, if any: it claims simply by virtue of a statute, which took property from one person and vested that property afresh in another clear of encumbrances except those it chose to preserve. The right to make an entry accrued to the present corporation certainly not earlier than its own existence and, as it does not claim through the previous corporation, its own right is its only right.

Sec. 46 seems to me a complete answer to all the contentions of the Company except as to statutory licence and as to riparian rights. But, in view of the magnitude of interests involved, the length of time consumed by the trial, and this appeal, and the learning and ability bestowed upon the arguments, it is, in my opinion, very desirable that the parties should know my views upon the contentions raised, assuming sec. 46 to be less potent than I believe it to be.

Proceeding, then, to examine the contentions of the Company, thev are (1) that by virtue of its documentary title it is the owner of the reclaimed land, the freehold title shifting with the river; (2) that prior to 1st January 1877-that is, prior to the establishment of any Harbour Trust-the Crown's licence to occupy the northern portion of the strips and make and maintain the wharf had become irrevocable (3) that, if the licence had not then become irrevocable, it became SO under the first Trust early in 1877. (4) that by longa possessio ending not later than 1895 a statutory title by limitation had accrued to the Company both to the northern

36 CLR 259

portion of the strip and to the wharf; (5) that, alternatively, an easement as declared with regard to the wharf had been created; (6) that the southern portion of the strip had been irrevocably licensed by the Trust in 1895 (7) that by longa possessio since 1895 it had passed to the Company (8) that the Company has riparian rights over both portions of the strip and over the wharves while standing. The contentions both of fact and of law will be better understood with a more precise statement as to the title, situation and dimensions of the relevant properties.

In 1850 a Crown grant in fee simple was made to George Ward Cole of a piece of land described as " all that piece or parcel of land in our said territory containing by admeasurement 12 acres and 2 roods be the same more or less situated in the county of Bourke parish of Cut Paw Paw allotment No. 4 of section No. 8 bounded on the north by allotment No. 3, containing 11 a. 1 r. 0 p. bearing west 24 chains 48 links on the west by a line bearing south 5 chains on the south by allotment No. 5 containing 13 a. 1 r. o p. bearing east 26 chains 20 links and on the east by Hobson's River being the land sold as lot 92 in pursuance of the proclamation of 26th March 1850 with all rights and appurtenances whatsoever thereto belonging." At that time the land was part of the territory of New South Wales, and, as will be seen, the grant indicated compliance with the relevant Act then in existence, 5 and 6 Vict. c. 36 (1842). The respondent Company is now through several mesne transfers the owner of the land, which had been brought under the Transfer of Land Act and the title to which is now evidenced by a registered certificate. That certificate, dated 4th July 1890, describes the land thus "All that piece of land delineated and coloured red on the map in the margin, containing 13 acres 3 roods seven perches and seven-tenths of a perch or thereabouts being Crown allotment 4 section 8 parish of Cut Paw Paw county of Bourke." The map in the margin delineates a piece of land, the western boundary of which is much more definitely fixed than in the Crown grant. In the grant it is merely line bearing south 5 chains." No doubt, the reference in the grant to lot 92 and the proclamation and plans would afford material to fix the western line more or less accurately. But reference

36 CLR 260

OF A. to the plans in evidence shows discrepancies in measurement and

position, and any effort to reconcile them fails. Nothing but guess- work, or, at best, the most doubtful conclusion could now settle the exact position of the western boundary as stated in the grant. The present certificate of title, however, takes as the datum Whitehall Street, a settled public street, and carries the land 1,777 feet 10 inches (admitted to be an error for 1,177 feet 10 inches) eastward to the Yarra River. But there is also the statement that the land is. as in the grant, " Crown allotment 4 section 8 parish of Cut Paw Paw county Bourke." As for the acreage, there is not, when the proverbial inferiority of surveying instruments in the early days is remembered, any necessary discrepancy between "12 acres and 2 roods be the same more or less " and "13 acres 3 roods /10th perches or thereabouts."

Company's Documentary Title to Reclaimed Land.-So far as that is based upon the certificate of title, it depends on what I may term the surveyor's identification of the reclaimed land with land included in the certificate. It appears from the evidence, and Mann J. has worked out very clearly this important part of the case, that not only the wharf but also the disputed strip is not included in the certificate. That is to say, the line of the River Yarra indicated on the plan in the margin of the certificate is intended to be the old line of the river. This is strongly contested on the part of the Company. It is urged that in the certificate the dominant parts of the description are Whitehall Street as the western boundary and the River Yarra as the eastern boundary. It is said that the measurements are subordinate and, as they are inconsistent, should be disregarded. The argument then takes "River Yarra on the certificate as being the River Yarra as it actually existed in July 1890 when the certificate issued. There are reasons which convince me that that contention should not prevail. Whitehall Street, a public street, is no doubt a fixed boundary. At any moment, in any year and in any circumstances its position is the same. The eastern line of that street is, no doubt, the western boundary of the allotment according to the certificate. Any surveyor wishing to identify the land by means of the certificate could be certain of the western boundary. The eastern boundary, a river, is in its nature and

36 CLR 261

inherently an unstable factor. The surveyor going to the land to-day--35 years after the certificate-could not, by mere inspection, be sure he was looking at the eastern boundary. He would have MELBOURNE 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

36 CLR 262

map is not self-sufficient. True the western boundary is fixed, but at what precise spot on that western line could one start to measure ? And similarly what precise spot on the river bank, wherever that is, could one take as the commencing point ? Obviously one would be driven to look somewhere for the relative position of Crown allotment 1 of the section and parish named. One is then driven back to the Crown grant and the earlier documents in order to locate either the north or the south boundary of allotment 4. The difficulty, then, cannot be solved by boldly taking the river frontage as it existed in 1890 as the eastern boundary, disregarding the whole under- standing upon which the title issued. That appears to me to be so opposed to the known intention of both the Titles Office and the Company that it is unthinkable. I entirely agree with what I understand to be the view taken of this by Mann J.

The Company, then, cannot rest its case on the suggested inclusion of the disputed territory in its documentary title. That, assuming the Act of 1915 is not conclusive, leaves the problem entirely open on general principles of law whether the strip, admittedly Crown property up to 1873 and, apart from riparian rights, free from servitude, has by process either of irrevocable licence or the Statute of Limitations become the private property of the Company's predecessors, and now of the Company, or subject to the servitudes declared. The Crown ceased in any case to be the owner of the strip on 1st January 1877, because whatever rights it then had passed by Act No. 552 to the first Melbourne Harbour Trust corporation.

Northern Strip and Wharf.-The Company, however, asserts that prior to that date (1st January 1877) the Crown had lost the property in the northern part of the strip and had created an easement in respect of the wharf by reason of irrevocable licence to Joshua Brothers, continued to the Victoria Sugar Co. That, at least, is the primary contention of learned counsel for the Company. Another alternative contention, put forward for another purpose, is that, whether there was a licence or not for the strip, the Company as of right, under its own title, reclaimed the strip and openly, either lawfully or as a trespasser, built upon it and exclusively occupied it. The learned primary Judge, but for sec. 4 of the

36 CLR 263

Land Act 1869, would have agreed with the first view. His opinion H. C. OF is opposed to the second view. His Honor inspected the land and saw its present condition. If his Honor did SO simply to understand better what evidence had been already given, that was legitimate enough. This Court offered, if the parties consented, to inspect for that purpose the corporation consented, the Company did not. But if the inspection by Mann J. were to strengthen the evidence by throwing light on the nature of the permission and the intention of the parties in 1873-a view which has been pressed on behalf of the Company-I would consider it inadmissible for several reasons. The present buildings and improvements could not identify the subject matter of the permission given before any erection took place. I accept for other purposes the view that any outside person looking at the land as it now appears, or as it has for some years past appeared, would probably be led, if ignorant of the actual circumstances and events that had taken place, to think the strip was privately owned. But, in construing the actual corres- pondence in 1872 and 1873, the present condition of the improvements on the land affords no assistance and, unless great caution be observed, may even be misleading.

I have carefully read and re-read the correspondence, and I am unable to arrive at the same conclusion as Mann J., that the permission given in May 1873 was one indefinite in time, in the sense that it was intended to be in perpetuity. Of course, the original statement that the first-mentioned jetty was to be "temporary " was indefinite in point of time-that is, no specific moment of termination was indicated. But, if "indefinite" in relation to the second jetty is more than that, it must mean perpetual-that is, as long as the licensee desired. The effective correspondence begins with a letter of 2nd October 1872 which superseded an earlier application. By this letter Joshua Brothers, the then owners of allotment 4, informed the Chairman of the Board of Land and Works (1) that they were the owners of the allotment: (2) that they intended on that land to erect a refinery; (3) that in order to have water communication to it, that is, to the refinery, they intended running a pier 40 feet out into Hobson's River at a point where a small pier was then situated on their land; (4) that they intended levelling their land

36 CLR 264

and throwing the debris into the river; (5) that by rights conferred

by their Crown grant they could reclaim up to the fairway of the river; (6) "but before making the proposed pier or throwing this debris into the river we take the liberty to apprise you of our intention, SO that the conservators of the river may point out to us any objection should it exist to the course we propose taking." After careful investigation in two or three Departments, the Secretary of Lands replied, by letter dated 30th October 1872, in these terms Referring to your letter of the 2nd inst. I am directed to inform you that the Board of Land and Works will be prepared to grant the application therein made for permission to erect a jetty on the River Yarra, if such jetty be temporary only, and subject to the following condition specified by the Inspector- General of Public Works: 'such jetty not to extend further into the river than say 40 or 50 feet beyond the end of the present jetty." There was thus a basic stipulation introduced by the Board of Land and Works itself that the jetty be "temporary" only, and there was also a condition suggested by the Inspector-General of Public Works. The first stipulation was clearly a matter of general caution by which the Board of Land and Works (a statutory corporation of extensive authority under the Public Works Act 1865, sec. 12) carefully made it clear that nothing in the nature of a perpetual right to occupy the fairway would be entertained. The word "temporary" is usually the opposite of "permanent," and here it certainly excludes permanency. But further, in the connection in which it was used it meant that the structure was to be regarded as for the time only. The character of the public body making the stipulation and the terms in which it was made leave no doubt that "temporary' meant simply until public interests in the opinion of the Government should require its removal. It was not even of the technical stability of a tenancy at will, which means at the mere personal will of the landlord, for the public body and the Crown, being bound to regard public rights, were not thinking of mere personal will, but meant that, when public interests required revocation of the permission, that would be intimated. It was, therefore, even less stable than a personal revocable licence, because any personal fetter upon immediate right to possession, should public

36 CLR 265

interests be considered to require it, would be unlawful. But the permission to occupy subject to vacating as soon as the Crown thought public interests required it and SO intimated, was lawful MELBOURNE enough. So much for the first and basic stipulation. The second provision was one marking the limit under then present conditions of permissible interference with the fairway.

On 25th November 1872 Joshua Brothers addressed to the Harbour- Master a letter of considerable importance. Analyzing this com- munication, the writers (1) referred 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"; (2) inquired "whether the Government will allow us to push the jetty as far into the river as where the proposed stone wall to confine the fairway will eventually run"; (3) stated their intention to build a T jetty SO as to discharge their own vessels inside the two angles without obstacle to free navigation; (4) stated that this necessitated greater length of jetty (5) stated that the "pier or jetty," intended to be 330 feet long, will render

immediately" the very service which the contemplated retaining wall is intended to give." There is not a single word in that letter asking for perpetuity. In view of the distinct stipulation of "temporary only " in the permission" of 30th October, one would expect, if that were objected to, that something would have been said. But, though that "permission" is expressly mentioned. all that is asked is an alteration as to distance-not time. The argument in favour of the extended distance is that there will be an immediate providing of "the very service" which the supposed wall will eventually give. Observe it is not an additional service; nor is it a service which will continue after the wall is built. On the contrary, the argument assumes that until the wall is built the jetty will perform the service and then, being on the very line to be later occupied by the wall, the jetty must necessarily disappear. This letter is, in my opinion, wholly inconsistent with the argument of perpetuity.

I should stop here for a moment to notice a suggestion pressed very earnestlv in order to get rid of the obvious considerations just mentioned, and particularly the effect of the word temporary" in

36 CLR 266

the letter of 30th October: it is that the letter of 25th November 1872, in using the phrase for which we have received the permission of the Harbour Department," meant not the permission contained in the proved letter of 30th October, but permission contained in some imaginary letter which SO far has escaped identification. The suggestion is based on a purely inter-departmental memorandum addressed by the Chief Harbour-Master on 14th October to some one, apparently his official head. In that, Captain Payne says that the late Commissioner of Customs had approved an application from Mr. Matthew Parker on the same subject for the same piece of land, provided that no harm was done to ordinary traffic on the river and that it did not interfere with the intended line of retaining wall or other works for the improvement of the Yarra. That is to say, Captain Payne reminds the then Commis- sioner of Customs that the late Commissioner had-so far as his Department was concerned-given his approval to Parker's application. But there is nothing in Captain Payne's letter to say that other branches of the Government had also approved: as, for instance, the Department of Lands or the Department of Public Works or the Board of Land and Works, the latter being specially charged with such matters. Nor is there the least shred of evidence that there had been any communication of approval to Joshua Brothers, on whose behalf, apparently, Parker had written. That the Commissioner's approval was an incomplete step is manifest from several circumstances. First, if it had been formal and communicated, there would have been no need for another application, and, next, there would have been some evidence of it. Further, Captain Payne goes on to say that he "therefore" suggests that the Inspector-General of Public Works should be consulted, obviously to see what other Departments had to say to the matter. The result was the letter of 30th October already mentioned.

a tenant being in possession of land, and knowing the nature and extent of his interest, lays out money upon it in the hope or expectation of an extended term,

then, if such hope or expectation has not been created or encouraged by the landlord, the tenant has no claim which any Court of law or equity can enforce."

In the judgment before us, there are set out two letters of 1890. The Company wrote on 20th March to the Harbour Trust secretary

Sir,-It is our intention to erect a store (No. 6) at Yarraville which will require to be built on a concrete foundation. The locality of the proposed retaining wall. and the relation it bears to the jetty and river are marked on plan and sent herewith, and I shall be glad to know if there is any objection on the part of the Commissioners to its construction in accordance therewith." The reply was: "Sir, -Your letter of 20th ultimo was submitted to the Commissioners, and I am instructed to inform you in reply that they have no objection to the proposed wall, your Company, of course, accepting any responsibility in connection therewith.' This amounts, at the most,

1(1884) 9 App. Cas. 699. 2(1884) 9 App. Cas., at p. 712. 3(1865-66) L.R. 1 H.L. 129. 4(1865-66) L.R. 1 H.L., at p. 171. 36 CLR 294

to a consent given by the Harbour Trust to the Company, at the

request of the Company, that the Company erect the retaining wall --not to a request of the Harbour Trust that it should be erected.

The case of Marshall v. Ulleswater Steam Navigation Co. 1, which is also cited, is a mere illustration of the principle that one who obstructs a highway by placing or maintaining a gate across it, cannot complain if another who has a right to use the highway climb over the gate. A was the owner of the soil of a lake, and owned and maintained a pier which obstructed B-a steamship owner who held adjoining land on lease-in embarking and disembarking his passengers from or to his land held on lease. No one denied that if A had actually constructed the pier himself the person obstructed by it would have a right to step on it in order to get to the boats. This principle does not apply to a case where B creates the obstruction himself.

Lyon v. Fishmongers' Co. 2 was a case under the Thames Conservancy Act, from which many of the sections of the Melbourne Harbour Trust Act are taken. There, the conservators had, under sec. 53, granted, for payment, a licence to the Fishmongers' Co. to make a jetty into the river: and it was held that the licence did not confer on the company any right to affect injuriously by its construction the rights of another riparian owner to embark, disembark, &.

Probably this action would never have been fought SO tenaciously but for the decision of the Judicial Committee in Attorney-General of Southern Nigeria v. John Holt &Co. (Liverpool) Ltd. 3. Indeed, the statement of claim not only speaks of "natural riparian rights" as in that decision (par. 5), but it alleges also, as is alleged in Holt's Case, the tendency of the waters to "erode the banks" of the river. There is not the slightest ground for alleging erosion in the present case, although Holt's Case turns on erosion. Holt's Case is best understood if one considers what alternatives (if any) the Judicial Committee had. Briefly, the Crown had in 1861 granted five plots of land on the coast of Lagos Island. The sea there was very destructive, tearing away the foreshore; the grantees

1(1871) L.R. 7 Q.B. 166. 2(1876) 1 App. Cas. 662. 3(1915) A.C. 599. 36 CLR 295

reclaimed the foreshore by building a retaining wall. &., and H. C. erected there stores, &., for their business. In SO reclaiming they conferred a great benefit on the public. This was done with the MELBOURNE knowledge, and not against the wish of the Government-probably with the positive permission of the Governor. The grantees were entitled as riparian owners to access from their land to the sea: the Crown had a duty to protect the land from the incursions of the sea. After a grantee had thus used the foreshore from 30 to 50 years (not long enough for the British Statute of Limitations as to Crown land), the Government began to construct a road across the reclaimed land, a road which would cut off the grantees from the sea and from their stores and the question was on what principle compensation should be assessed. It was held that the soil of the foreshore still belonged to the Crown, but that its title was subject to the grantees' rights as riparian owners to access to the sea, and as to the reclaimed land subject to the perpetual right of the grantees to place and store such things and to erect such buildings as hitherto. In short, the Crown was not allowed to get possession of the foreshore without compensating those who by their expenditure had done what it was the Crown's duty to do. In the present case there is not the slightest ground for saying that the Crown, or the Trust neglected any duty, or that the Joshuas and the Sugar Com- pany were working for the public benefit and the Trust has not the powers of dealing with the land which the Crown had in Holt's Case

36 CLR 296

his landlord leave to put up a high wall with broken glass to keep

them out; suppose that this wall prevent the surface water from

MELBOURNE running off the orchard land the tenant does not thereby get a

right to put a new water channel into the adjoining land; he gets no new right of drainage from the landlord. Suppose A owns a block of land, and has the usual right to cultivate it he builds on it, SO that cultivation becomes impossible: he has not thereby "abandoned" his right to cultivate: but it does not follow that he can use B's adjoining land for cultivation. The position, to my mind, seems obvious.

But a much more difficult question arises as to the Statute of Limitations (Part II. of the Real Property Act 1915). Assuming that the Sugar Company has had possession of the foreshore land, with buildings and jetty, since 1877, the right to bring an action for possession would, it is urged, cease in 1892-after 15 years (secs. 18, 19). I shall assume, in favour of the Company, that there has been no written acknowledgment of title in the meantime; no payment of rent; no disability. It is not contended that the Company is an express trustee of the land for the Trust, or in the position of a bailiff for the Trust. There is no need for the Company to show what used to be called "adverse possession" before the Act 3 &4 Will. IV. C. 27; the question is merely how many years have elapsed since the right of the Trust accrued. As explained in Halsbury's Laws of England, vol. XIX., p. 105, par. 193, the Act of 1833-1834 'put an end to the doctrine of adverse possession" (Nepean v. Doe d. Knight 1 ). The writ in this action was not issued till 14th November 1919; and the counterclaim of the Trust for possession is in this action. If we assume, in favour of the Company, that the Trust's right of entry, or right to bring an action for possession, accrued about 1874 (although the Trust gave no notice to quit), is not the title of the Trust extinguished (Real Property Act 1915, secs. 19, 43) ? If so, and if A has a country house which he does not want to use at present, and out of kindness lets B have the use of it till it be wanted, A's title is, after 15 years, for ever extinguished. Accepting this position as the law, does the statute apply SO as to bar the claim of the Trust-a body constituted by

1(1837) 2 M. &W. 894, at p. 911. 36 CLR 297

statute as trustee for the public benefit-under the circumstances ? H

I confess that on this subject I should have liked to hear more argument. Under the Victorian Act (sec. 17), the statute does not MELBOURNE affect the title of the Crown, even after 60 years. The Harbour Trust Act purports to vest this Crown land in the Trust; but for what estate or interest ? The Statute of Limitations seems to extinguish estates or interests, things resting in tenure (sec. 16,

Land; sec. 43 secs. 18, 19, &.); but here there is no tenure apparently. Perhaps what was meant was to put the Trust in the same position as the Crown as to the land vested and the Crown has not a tenure from itself. Does the Statute of Limitations, a general Act, applying as between subjects, apply also to a public body holding lands on trust by the direct force of a subsequent special Act, not by a conveyance ? The land was vested in the Trust" upon trust for the purposes of the Act the several Harbour Trust Acts. Does the Statute of Limitations operate SO as to enable the Trust to convey to a person land which it has no power to convey directly-to convey it by the simple process of bringing no action for possession for a period of 15 years ? Then there are doubts as to the Sugar Companies having had possession, or exclusive possession, for the purpose of the Statute of Limitations of the land under the jetty, or even the land reclaimed. But as there has not been any argument on such lines I propose to assume that all these questions suggested should be answered in favour of the Company. This brings me to sec. 47 of the Harbour Trust Act 1876, sec. 46 of the consolidated Harbour Trust Act 1890, and sec. 46 of the Harbour Trust Act 1915.

Sec. 47 of the Act of 1876 says: 'There shall be vested in the Commissioners upon trust for the purposes of this Act the bed and soil and shores of the waters and the pieces or parcels of land within the metes and bounds described in the First Schedule to this Act, but subject to the estate and interest of any person in such pieces or parcels of land existing at the time of the passing of this Act and to the right of Her Majesty to resume possession at any time without payment of compensation of any land required for purposes of national defence or for giving ingress egress and regress to and from the shore." By sec. 46 of the Act of 1890, a consolidating Act :

36 CLR 298

"The bed and soil and shores of the waters and the pieces or parcels of land within the metes and bounds described in Part I. of the Third Schedule to this Act are hereby declared to have been vested in the Commissioners at the time of the passing of the Melbourne Harbour Trust Act 1876 upon trust for the purposes of the said Act, and the same shall continue to be vested in the Commissioners upon trust for the purposes of this Act, but subject to the estate and interest of any person in such pieces or parcels of land existing at the time of the passing of the Melbourne Harbour Trust Act 1876, and to the right of Her Majesty to resume possession at any time without payment of compensation of any land required for purposes of national defence or for giving ingress egress and regress to and from the shore." By sec. 46 of the present Act of 1915: "The bed and soil and shores of the waters and the pieces or parcels of land within the metes and bounds described in Parts I. and III. of the Second Schedule to this Act

are hereby declared to have been vested in the Commissioners upon trust for the purposes of the said Act, and the same shall continue to be vested in the Commissioners upon trust for the purposes of this Act, but subject to the estate and interest of any person in such pieces or parcels of land existing at the time of the passing of the Melbourne Harbour Trust Act 1876 and to the right of His Majesty to resume possession" &. (as before, and for another purpose, which is immaterial).

The Schedule to each Act admittedly comprises the foreshore in question, as vested in the Trust. Looking now at the words of sec. 46 of the Act of 1890, we find that the bed and soil and shores, &., are to be deemed to have been vested" at the time of the passing of the Melbourne Harbour Trust Act 1876' "; whereas, in the corres- ponding sec. 46 of the Act of 1915, the words " at the time of the passing of the Melbourne Harbour Trust Act 1876 ' " have been omitted, and the words for the purpose of the said Act" become unintelligible. If we could act on conjecture, it might fairly be urged that the omission was a clerical error; and the Courts have frequently acted on the basis of omission, treating the section as if the words were there (Maxwell on Statutes, 3rd ed., p. 351 Re Wainewright 1 ). But, unless the Court cannot do justice without

1(1843) 1 Ph. 258. 36 CLR 299

deciding such a delicate question as to the omission of words in an Act, I propose to assume that the words in the Act of 1915 are to be construed without the aid of the words in the Act of 1890, and to MELBOURNE act on the theory that there is no such obviousness of error as to justify us in declaring an error. Without the aid of these words. sec. 46 of the Act of 1915 as it stands shows that the land in question had been vested in the Trust and was to continue to be SO vested hereafter. That is to say, the land in question remained, and is to remain, vested in the Trust from the time that it was SO vested: there is no break in the continuity of the Trust's title, the land still remains-notwithstanding the Statute of Limitations--land of the Trust; and if there be no lease or licence, no legitimate title that has passed from the Trust to the Company, there ought to be judgment that the defendant Trust do recover possession.

I might add, as strengthening the view that the land in question remains the property of the Trust, that I see no answer to Mr. Latham's contention (as to the words "subject to the estate and interest of any person in such pieces or parcels of land existing" &.) that the only estate and interest protected from the Trust by this sec. 46 are any estate and interest in the Trust lands other than in the " bed and soil and shores" of the waters. The distinction between the two classes of land-the margin and the bed-has been preserved right through, from 1876 to 1915. It would appear that the Legislature believed that neither the Crown nor the Trust alienated or would alienate any of the bed or soil or foreshore of the river. These were, and were to be, sacrosanct (and see secs. 81, 87, &.) and these contained the land in question.

In face of the Act of 1915, it is, to my mind, impossible to affirm that the title of the Harbour Trust to the land in question has been extinguished or even in any way affected by the Statute of Limitations. To say that any title has passed to the Company before or after the Harbour Trust Act 1915 would be to contradict that Act, when it declares that the land had been vested and should continue to be vested in the Commissioners.

Nor has any title been given to the Company since the Act of 1915.

None of the powers of leasing, licensing, &., conferred by that Act (as well as by the previous Acts) has been exercised. There is no power conferred to sell any of the land

36 CLR 300

vested in the Commissioners by the Acts. There is power to grant

leases of the land (sec. 51) but the power cannot be exercised without the approval of the Governor in Council, and the lease must be upon such rent and other conditions as the Commissioners think fit, and must not exceed 21 years (sec. 51). The Commis- sioners may construct wharves, &.; and may authorize the construction thereof on such waterside frontages or on such land as the Commissioners may let or (query, "on") lease or licence (sec. 60), There has been no such lease or licence granted. The word "licence" in the Act involves clearly a document in writing-if not a deed (cf. secs. 81, 82). There is power upon such terms, and upon the payment of a fair and reasonable consideration to license the erection of piers or landing-places, &. (sec. 84); and the consideration must be fixed after a valuation (sec. 85). There is a similar power under sec. 87 but the licence must be upon payment of such consideration, and subject to such conditions as the Commissioners think fit. The provision vesting in the owner of the adjoining land any embankment made under licence is obviously inapplicable; for there has been no licence, and the provisions cannot be applied until the secretary of the Commissioners has certified upon the licence that the conditions have been performed (sec. 82). The power of the Commissioners to resume by notice the possession of the land the subject of a lease or licence (sec. 54) is inapplicable; for there has been no lease or licence. The Trust has, it is true, given a notice under this section; but this course was taken, no doubt, for greater caution, in the event of the Court treating the correspondence of 1872-1873, &., as amounting to a licence.

Perhaps I should say that I have not failed to consider the point first dealt with by Mann J. in his judgment-the point urged that the grant of allotment 4 in 1850, and the certificate of title issued afterwards, actually include part of the foreshore, and that therefore the Trust had no title to the whole foreshore at the Company's allotment. The learned Judge has held that any measurements contained in the Crown grant must yield to the clear intention that the land granted should end at the river's margin. No sufficient reason has been shown for differing from this decision.

36 CLR 301

For these reasons I am of opinion that the judgment should be set H. OF aside, the action of the plaintiff dismissed, and the counterclaim granted for possession of the land in question.

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 (Ulleswater 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 removed, I assume that the original riparian rights could be exercised. Accepting what Lord Shaw said, in Attorney-General of Southern

1(1871) L.R. 7 Q.B. 166. 2(1915) A.C. 599. 3(1888) 13 App. Cas. 192. 4(1905) 2 Ch. 164. 36 CLR 302

Nigeria v. John Holt &Co. (Liverpool) Ltd. 1, that the reclamation

of foreshore by the Crown or a third party would have no effect on the riparian rights of the frontagers, it does not follow that reclamation by the Companyitself confers on the Company riparian rights elsewhere. The declaration proposed would restore not the status quo ante, but a new status, and without grant or estoppel to support it. If the declaration is to have no substantial effect, because of the italicized words added, it will cause misunderstanding and probably lead to more litigation and useless expense.

RICH J. I have very carefully considered all the phases of this intricate case. After examining the relevant statutes, the lengthy evidence written and oral, I am of opinion that the appeal should be allowed, preserving, however, the respondent's rights as riparian owner. As my interpretation of the law and the facts does not differ from the reasons set out in the judgment of my brother Isaacs, which I have had the opportunity of reading, an extended statement by me would be practically reiteration. I content myself, therefore, with one exception, with stating my agreement with that judgment. That exception arises out of the difference of opinion between my two learned brothers on the subject of riparian rights. With regard to them, as I agree with the declaration proposed by my brother Isaacs, I shall state my reasons in my own words.

It was argued by Mr. Latham for the Harbour Trust that the simple fact of the Company or its predecessors having altered the configuration of the shore and built the wharf put an end to its riparian rights. On the other hand, learned counsel for the Company claimed to retain those rights on grounds which were certainly larger than those on which I am prepared to support them, but, all the same, claimed their retention. The ground I think applicable is that the dominant fact is the temporary nature of the permission which from first to last was given in respect of the reclamation and the wharf. That is fully set out in the judgment of my brother Isaacs, and, as I agree with what is there said, I refer to the nature of the permission only for the purpose of its corollary as to riparian rights. It is, in my opinion, a corollary from that conclusion that,

1(1915) A.C. 599. 36 CLR 303

when the temporary permission is put an end to, all parties revert H. to their prior situation SO far as possible. The Company never for a moment abandoned its riparian rights. In Holt's Case 1 Lord Shaw says that " the abandonment of rights annexed to land is a question of intention, and it is absurd to suppose that the frontagers in the present case intended to convert their holdings into what has been described as hinterland.' Further, it appears from the case of Marshall v. Ulleswater Steam Navigation Co. 2 that the reclama- tion of foreshore by the Crown or a third party would have no effect on the riparian rights of the frontagers, SO that the frontagers' rights may exist even after the land has ceased to be subject to the flow and reflow of the tide." When the temporary permission is terminated here, its purpose has passed. Then, if the Harbour Trust continues to maintain the wharf as its own, it cannot, consistently with the law as stated in Holt's Case and Marshall V. Ulleswater &. Co., deny that it is obstructing pro tanto the Company's access to the river. That access never having been abandoned, the only way to maintain the prior existing rights is to permit access to the river unimpaired, even though the obstruction stands in the way. By erecting the wharf the Company cannot, even at common law, deny its lawful existence now, but that is no reason for denying -SO far as consistent with the presence of the wharf-the Company's right of access to the water, subject always to the power, if any, which the Harbour Trust may be found to have under its statute to affect that right. As to what the power is I express no opinion.

I agree with the order proposed by my brother Isaacs.

As to the claim :-Discharge the judgment of Mann J.

and in lieu thereof: (1) Declare that the plaintiff (respondent) as registered proprietor of the land included in its certificate of title volume 2275 folio 454930 is entitled, but subject to whatever powers, duties and authorities are vested in the defendants (appellants) by the Melbourne Harbour Trust Act 1915, to exercise the rights of a riparian owner in respect of the River Yarra

1(1915) A.C., at p. 621. 2(1871) L.R. 7 Q.B. 166. 36 CLR 304

over the land mentioned in the notice of 19th August 1919, and also over the wharf or jetty therein mentioned

SO long as the same remains; (2) otherwise the plaintiff's action be dismissed. As to the counterclarm -(1) Declare that the land mentioned in the notice of 19th August 1919 and all wharves, piers and erections thereon or abutting thereon on the east of the said land are vested in the defendants (appellants) as part of the Port of Melbourne, and are subject to whatever powers, duties and authorities are vested in the defendants by the said Act in respect of the said Port; (2) Judgment for possession accordingly. No costs of action (including claim and counterclaim) or of appeal to either party. Solicitors for the appellants, Malleson, Stewart, Stawell &Nankivell.

Solicitors for the respondent, Blake &Riggall.