1905. every creek, harbour, and inlet"; this must mean high water ATTORNEY- mark on the sea coast and high water mark on every creek, harbour, and inlet.

GENERAL

v.

MEREWETHER.

The evidence given on either side appears at first sight to be C.J. in Eq. conflicting, but any apparent discrepancy is, I think, almost entirely removed by noticing the date to which the witness's evidence refers. Without going minutely into the evidence, I find as follows:-(1) That the state of the lagoon was continually varying, according to the conditions of wind and weather; (2) that the lagoon was more or less permanently separated from the sea by a sand-bar which rose some feet above the ordinary level of the lagoon, and above high water, whether at spring or neap tide; (3) that after a heavy rainfall the creek or stream running into the lagoon from the west filled up the lagoon until the water was nearly on a level with the top of the sand-bar; (4) that when this was the case a channel was often made artificially across the bar, and the water allowed to run into the sea; (5) that occasionally the water of the lagoon made a channel by its own pressure across the bar; (6) that the water running through the channel widened and deepened it; (7) that, when the water in the lagoon had run out, the channel was soon closed by the action of the sea and wind banking up the sandbar; (8) that in recent years, when a channel in the bar was open, the sea water flowed into the lagoon on some occasions at high water-the depth of the sea water so flowing in, in the channel, varying from one foot to two or three inches; (9) that previously to 1880 there was rarely or never any inflow fron the sea, except by waves sometimes lapping over the bar; (10) that at high spring tides, with a south-easterly gale blowing, the waves of the sea ran up the outer slope of the sand-bar and the end of the waves ran over into the lagoon; (11) that the water in the lagoon was salt, at any rate at the eastern end, from the access of sea water; (12) that in 1840 the lagoon was less exposed to the entrance of the sea than in recent years; and (13) that the lagoon was not subject to the ordinary ebb and flow of the tide.

Alexander Patrick, one of the defendant's witnesses, whose evidence I see no reason to doubt, says that in the nineties the

1905. ATTORNEYGENERAL

V.

MEREWETHER.

bar was closed for a period of one year and nine months at a time, and that it would often remain closed for six months or three months; and that from 1870 to the present time he should say the lagoon was not open more than thirty days in the year. With reference to (9) only one of the witnesses for the Crown knew the lagoon before 1900. Hicks knew the lagoon from 1887 C.J. in Eq. to 1891, and he says he has seen the tide running in occasionally. On the other hand, many of the defendant's witnesses have known the lagoon in earlier years. H. Smith, from 1869 to 1871; Donaldson, from 1847 to 1849; Croaker (who was born in 1840), from his earliest years to 1861; W. T. A. Smith, from 1858 to 1870; E. C. Smith, from 1869 to 1874; E. A. M. Merewether (who was born in 1862), from his earliest years to the present time. All these witnesses say they never saw the sea flowing in ; only the waves breaking on the bar, and part of them going

over.

As regards the law, the earliest authority referred to was the Year Book (22 Edw. III. 93): "Nota que chacun eau que flowe et reflowe est appell' bras de mer, si tant avant come el' flowe." This is cited as an authority by Sir Matthew Hale in his De Jure Maris et Brachiorum Ejusdem (Cap. IV. II. 2.): "That is called an arm of the sea where the sea flows and reflows, and so far only as the sea so flows and reflows."

Hall, in his Treatise on the Seashore, edited by Moore (3rd ed.) at p. 669, says: "This dominion [of the King] not only extends over the open seas, but also over all creeks, arms of the sea, havens, ports, and tide rivers, as far as the reach of the tide, around the coasts of the kingdom. All waters, in short, which communicate with the sea, and are within the flux and reflux of its tides, are part and parcel of the sea itself, and subject, in all respects, to the like ownership."

In applying the principles of law to the facts of any case, the Court, in my opinion, must have regard to the general character of the lake or lagoon in question at the date of the grant. For instance, if a lagoon were subject to the ebb and flow of the tide for three hundred and sixty-four days in the year, I apprehend that it would be held to be an inlet of the sea, although it was closed to the sea by a sand-bar on one day of the year. Taking S.R., Vol. V.

K

1905. the opposite extreme, if the lagoon were closed to the sea three ATTORNEY- hundred and sixty-four days in the year and open one day GENERAL only, I apprehend it would not be an inlet of the sea. The MEREWETHER. Court, in my opinion, must look at all the facts in each case, and, C.J. in Eq. therefore, every case must stand on its own circumstances. It is

v.

really a question of fact, just as in cases of alluvion; it is for the jury to say whether the accretion has been so slow and gradual as to be imperceptible.

On the facts of this particular case, I come to the conclusion that in 1840 the Glenrock Lagoon was not an inlet of the sea within the meaning of the grant, and, consequently, there was no reservation of one hundred feet along the southern shore of the lagoon. This was the only point in dispute: subject, therefore, to a declaration that the Crown is entitled to a reservation of one hundred feet along the sea coast as shown in the plan annexed to the information, the information is dismissed with costs.

Solicitors: Crown Solicitor; W. M. Barker; Westgarth, Nathan & Co.

HALES v. MILLER.

1904.

23.

December 1.

Civil Service Act, 1884 (48 Vic. No. 24), 8s. 2, 43, 48, 55—Ciril servant—“ Officer" Nov. 21, 22, -Permanent employment - Superannuation allowance · Pension Broken service-Service prior to 1st January, 1885 -Dismissal-Re-employment--Condonation-Computation of allowance.

Sect. 55 of the Civil Service Act, 1884, has no application to persons who, on the 1st January, 1885, were only in temporary employ in the service of the Crown.

Sect. 48 of the Civil Service Act, 1884, is entirely prospective; the only provision for reckoning and making service prior to the 1st January, 1885, available for the purpose of calculating a superannuation allowance is that contained in 8. 55.

The only officers of the Civil Service entitled under s. 55 of the Civil Service Act, 1884, to a superannuation allowance in respect of service prior to the 1st January, 1885, are the officers entitled to retire and liable to be retired from the Civil Service under ss. 43, 44, 45 and 46.

The plaintiff was a Civil Servant in permanent employment from the 1st April, 1861, to the 2nd September, 1879, when he was dismissed for neglect of official duty. On the 4th March, 1884, he was temporarily re-employed, until the 1st May, 1885, when he became a permanent officer, and continued so to be until 1901, when he was compulsorily retired under the Public Service Act, 1895. He claimed that in the computation of his superannuation allowance his services prior to 1879 should be included.

Held, on appeal, reversing the decision of A. H. Simpson, C.J. in Eq., that the plaintiff was not entitled to any superannuation allowance in respect to his services prior to 1879.

The plaintiff was a Civil Servant in permanent employment from the 1st April, 1861, to the 2nd September, 1879, when he was dismissed for neglect of official duty. He was reemployed on the 4th March, 1884, and continued in the service until 1901, when he was compulsorily retired under the Public Service Act, 1895. He claimed that in the computation of his superannuation allowance his service prior to 1879 should be included. The Crown contended that the right did not apply in regard to service which was terminated by dismissal for misconduct, and that such right existed only in favour of Civil Servants who were permanent officers on the 1st January,

C.J. in Eq.

1905.

Feb. 21, 22, 23. March 21.

The C.J.
Owen J.

and Walker J.

1905. HALES

V.

MILLER.

December 1.

1885, the date when the Civil Service Act, 1884, came into operation, and that at that date the plaintiff was only temporarily employed by the Crown, and that he did not become an officer in permanent employ, within the meaning of the Act, until the 1st May, 1885.

Canaway, for the plaintiff.

Street, for the nominal defendant.

Cur, adv. vult.

On the 1st December, 1904, the following written judgment was delivered by

A. H. SIMPSON, C.J. in Eq. It is not disputed that from the 1st April, 1861, to the 2nd September, 1879, the plaintiff was employed in the Civil Service. On the 2nd September, 1879, he was dismissed for misconduct. It is only fair to the plaintiff to say that he was not charged with anything in itself dishonourable, but with neglect of his official duties. On the 4th March, 1884, he was again employed by the Government, but the parties are at issue whether he was engaged as a temporary employee or not. The defendant admits that the plaintiff became a permanent officer not later than the 1st December, 1886. A deduction of four per cent. was made from the salary of the plaintiff from the 1st May, 1885, as his contribution to the Superannuation Fund under s. 53 of the Civil Service Act of 1884.

In 1901 the plaintiff was retired under the provisions of the Public Service Act of 1895, as being over sixty-five years of age. The Government contend that the plaintiff is only entitled to reckon in his claim for a pension his years of service from the 1st December, 1886, to the date of his retirement; but as he had been contributing four per cent. from his salary since the 1st May, 1885, they are willing to reckon his service as commencing on that date. This would give him sixteen years' service. For the fifteen years he would be entitled to a quarter of his salary, which was 425l. This would give him 1067. 5s., and for the extra year above the fifteen years to one-sixtieth of his salary, viz., 7. 18. 8d. This would make his pension 113l. 6s. 8d., which is what the Government have been paying him. He claims to