1905.

In re COLES;

of a highway should be litigated under the Real Property Act. To entitle a party to caveat against land being brought under the Act he must have a legal or equitable interest in the land CONCORD partaking of the character of an estate: he must have a pro(Caveators). prietary interest: In re Innes (12 N.S.W. L.R. 180; 7 W.N. 115); Tierney v. Loxton (12 N.S. W.L.R. 308; 8 W.N. 79).

MUNICIPAL DISTRICT OF

A municipal council is entrusted by the Municipalities Act, s. 175, with the "care, construction, and management" of the roads within its boundaries. In Municipal Council of Sydney

v. Young (19 N.S.W. L.R. 41; 14 W.N. 205), it was held that the Municipal Council of Sydney had no "estate or interest" in a public road for the purposes of compensation under the Public Works Act. In view of that decision, it is clear also that if deprived of the alleged road the caveators could not recover compensation under s. 126 of the Real Property Act, which provides that any person deprived of land or any interest or estate in land, etc., may bring an action. But the phrase "estate or interest" must be given the same meaning throughout the Act, and if this council has no estate or interest within the meaning of s. 126, then likewise it has no estate or interest within the meaning of ss. 24, 42. The question of highway or no highway is quite different from ordinary questions of title: Hickman v. Maisey [(1900] 1 Q.B. 752) Harrison v. Rutland (Duke of) [(1893] 1 Q.B. 142).

If a clean certificate issues, it will not affect the rights of the council or the public, or prevent the land being used as a road: see Tierney v. Loxton and Martin v. Cameron (12 N.Z.L.R. 769). If the parties tried an issue on the subject of the existence of a highway, and the applicant succeeded, i.e., the jury found that no highway existed, that would not be final, or prevent the Attorney-General on behalf of the public from re-opening the

matter.

Cullen, K.C., and Loxton, for the caveators. In Tierney v. Loxton and In re Innes the case was only considered as between private individuals; it is nowhere even hinted that a public body cannot caveat to protect the rights of the public. Indeed, in both cases the probable right of the Attorney-General or

Minister for Lands to interfere by means of a caveat is referred to. If the individual may caveat to protect his private easement or right-of-way, and if the Attorney-General may caveat on behalf of the public, why may not a municipal council do the same in respect of a matter in which the local body is peculiarly interested together with the general public? A municipal council has a quasi proprietary interest in its streets. It may close them for certain purposes; its permission must be asked before the surface can be disturbed; it can arrest persons for injuring them; it can repair; it can impound cattle off them, and many other instances. occur to one. The interest of the council is in the nature of an easement: Rex v. Mersey and Irwell Navigation (9 B. & C. 95). A right of road is analogous to a private easement, but the interest of the council is far greater than that of any individual member of the public. It may be that the issue of a clean certificate would not destroy our rights, but we might hereafter have to take some legal proceedings to assert our rights, and all that would be prevented by a note on the certificate: see In re Houison (18 N.S.W. L.R. 300; 14 W.N. 3). The question is if the Court has not power under the machinery of the Act to protect the rights of the public by ordering a note to be made on the certificate in accordance with the ascertained facts.

COHEN, J. In this case we are asked to remove a caveat lodged by the Municipality of Concord, which forbids the bringing of certain land under the Real Property Act so far as respects a certain portion claimed by the municipality to be a public road. The substantial question we have to decide is whether the municipal council has such an estate or interest in the land as will entitle it to lodge a caveat of this nature. [Having referred to the provisions of ss. 24 and 42, his Honour proceeded]. We have been referred to several authorities, the first of which is In re Innes (12 N.S.W. L.R. 180; 7 W.N. 115), where it was held that a member of the public has no right to lodge a caveat to prevent land which is a public road from being brought under the Act, for the reason that he has no estate or interest known to the law, and claims merely in common with the rest of the public. The Chief Justice says "It may be that the Attorney-General can

1905.

In re COLES; MUNICIPAL

CONCORD

and should interfere to protect the rights of the public." That does not appear to me necessarily to indicate that the AttorneyGeneral must file a caveat in order to protect the rights of the DISTRICT OF public. There may be other methods of procedure whereby that (Caveators). object may be attained, and I do not read that case as deciding that a highway can form the subject of a caveat to be filed by the Attorney-General with the object of protecting public interests.

Cohen J.

Reliance has been placed by the caveators upon a passage in the judgment in Tierney v. Loxton, where it is said "it may be that on a representation of the facts to the Minister for Lands he may think it right to take the necessary steps to enter a caveat." But no positive opinion is expressed as to the power of the Minister to take such a course it is a mere suggestion, and does not cut down the real decision in the case.

In Tierney v. Loxton (12 N.S.W. L.R. 308; 8 W.N. 79) it was decided that a person owning land under a Crown grant had no caveating interest in a road bounding his land, since under the circumstances the presumption that he was the owner of the soil of the road usque ad medium filum via was rebutted. During the argument the Chief Justice enquired whether the issue of a certificate would deprive the caveator of the right to use the road. Counsel replied, "I think not, but that will not prevent the lodging of a caveat. A caveat may be lodged by the owner of an easement, and yet if he does not, and a certificate issues, it will not deprive him of his right." Now, in the present case, Dr. Cullen admits that the issue of a clean certificate will not extinguish the statutory rights of the council in respect to the road, but he says that it will prejudice those rights, inasmuch as it may involve the council in litigation in order to maintain and establish the same at some future time. As to what those rights are, it is only necessary for my present purpose to say that the Municipalities Act gives to the council the "care, construction and management of the public roads within its boundaries."

So far as the exercise of these statutory powers is concerned,

there is no necessity for this public road to be noted in the certificate, because the absence of such notification will not in any way affect the rights of the municipality.

In Tierney v. Loxton Mr. Justice Windeyer, in delivering the judgment of the Court, says :-" After a very anxious consideration of the words of the section (s. 24) and of the whole Act, we have come to the conclusion that the intention of the Legislature in using the word interest was that only a person having or claiming to have some legal or equitable interest in the land, partaking of the character of an estate, or of an equitable claim upon the land, could be a caveator." Taking that passage as the foundation of the judgment of the Court in that case, it appears to me that this municipal council in the present case has not brought itself within the terms of the decision in Tierney v. Loxton. I do not think the council has any legal or equitable interest within the meaning of the Act. It has no legal interest, nor has it any equitable interest, reading that expression to mean, as I think it must be read, any beneficial interest, that is, either in itself, or for or on behalf of other persons. I do not see how a council can be held to have any beneficial interest in the public roads within its boundaries; their interest is not only not beneficial, but it is an actually burdensome one. I do not think that any lawyer would describe the council's interest in their roads as a beneficial one. The nature of that interest has been fully described in the case of Municipal Council of Sydney v. Young, where it was held that all that vests in the municipal authority is the surface of the street, qua street, and such portion as is necessarily incidental to its repair and management, and that it does not vest as general property, so that the resumption of this interest would give no ground for compensation under the Public Works Act.

The insurance fund has been referred to, and it has been argued by the applicant that the words "estate or interest" in s. 126 and in s. 24 must be read in precisely the same way. I think that must be so, and that the words must be taken to have the same meaning in both sections. If the law is that the issue of a clean certificate would not affect the council's rights with respect to the alleged road, it is clear that they could have no claim upon the fund, since they would not have been deprived of any rights which they possessed under the Municipalities Act. I think that if s. 24 had been intended to apply to interests of this nature, such intention would have been clearly expressed.

1905.

I am therefore of opinion that this caveat must be removed, the injunction dissolved, and the respondents declared to be MUNICIPAL finally unsuccessful.

In re COLES;

DISTRICT OF
CONCORD

(Caveators).

PRING, J. I am of the same opinion. The Real Property Act was intended to apply exclusively to private interests, and the words" estate or interest" in s. 24 mean an estate or interest for the loss of which the owner may recover compensation under the provisions of s. 126. In the present case it is clear beyond all doubt that if the interest in respect of which the municipality desires to caveat were resumed by the Government, no claim could be made for compensation under the Public Works Act. That is decided in the Municipal Council of Sydney v. Young, where their Lordships say that "the street being diverted into a tramway is in no way a taking of property within the meaning of the compensation to be assessed under the Public Works Act. In point of fact it is rather the opposite, because the municipal authority, by getting rid of the street, pro tanto have less expense, and it is in that respect a relief to the ratepayers." So that if this road were annihilated the council would not suffer any loss, but would have a burden removed. I am further of opinion, on the authority of Tierney v. Loxton, that the issue of a clean certificate will not in any way affect the rights of the public.

Caveat to be removed.

Attorney for the applicants: H. C. E. Rich.

Attorneys for the caveators: Lawrence & Macdonald..