MERRICK ข. CUMMINS. M. T. 1858. permanent right of user of the quay or pier than they would have Queen's Bench in the case of a road, which, under section 60, might at any time be stopped up by presentment. There is, I think, a distinction between the words "pier or quay," and the words "banks of the river or land on which some quay may be erected or constructed," as used in the Act (see section 67); and if, in construing the 68th section, regard be had to that distinction, and the words "pier or quay " be confined to the structure or erection on the land, and not extended to include the freehold and soil of the land itself, I think that a consistent and natural construction would be given to the section, which would avoid all unnecessary interference with then existing rights-would leave unchanged the ownership and freehold of the land in the case of a pier or quay, as well as in the case of a road, but would make the pier or quay public property in the same sense that a road was public property, namely, by giving to the public a right of easement or user of the pier or quay, though a more permanent right than in the case of a road. There appears no greater inconsistency in holding that the estate and freehold of the land on which a pier or quay is built should continue in the former owners, subject to this permanent right of easement and user in the public, than in holding, as has been done, that the estate and freehold in the land over which a public road is made remains in the former owner, subject to a right of user or easement over it in the public; of that the estate and property in the soil of the banks of navigable rivers belongs to the owners of the adjoining lands, subject to certain rights of user and easements over them in the public. I have further to observe that if the Legislature had intended, by the 68th section, to transfer from the former owner the estate and property in the soil of the land on which the pier or quay was built, it is not to be supposed they would have overlooked the obvious contingency of such land being part of premises previously demised by these subsisting leases; or would have neglected to provide for all such cases, by introducing into the Act provisions for apportioning the rent, and preserving to the landlord his remedies for such apportioned rent, similar to those provisions contained for that purpose in the several Railway Acts passed at that period, and afterwards embodied in the Lands Clauses Consolidation Act of 1845. It has been also suggested that the provisions of the 67th section, which require the written consent of the owner in fee, or person entitled for lives renewable for ever, or for long terms of years, for the erection of any pier or quay on their land, would obviate the inconvenience and difficulties which would arise from holding that the estate and property of the land was transferred by the 68th section. Those provisions would not, however, apply to the cases of presentments made before the Act; and, even with respect to future presentments, it will be seen that in those cases (frequent in occurrence) where the lessees of such owner or person giving his consent may have made under-leases to other parties, including the land required for the pier or quay, the consent required by the 67th section would not affect the results, which the construction contended for would have upon the rights of such lessees against their undertenants. The consent of such lessees to the presentment would not be required; and it cannot be said that the injury sustained by them, by losing the right of proceeding by ejectment for the rent reserved in such under-leases, out of the entire premises thereby demised, could be made the subject of compensation on a traverse for damages. I am, therefore, of opinion, that the 68th section does not bear the construction contended for by the defendants; and, accordingly, that this ejectment is maintainable, and that the plaintiff is entitled to judgment. PERRIN, J. I concur with my Brother O'BRIEN in his judgment. I have fully considered the case, and I cannot add anything to what he has said. It is plain that the 68th section does not mean the ground upon which the pier or quay is built; but, on the contrary, that it means distinctly that the pier or quay shall be used for public purposes, just as a road is used; and I cannot conceive why we are to extend the meaning-in fact to give a new meaning to the M. T. 1858. Queen's Bench MERRICK v. CUMMINS. M. T. 1858. provisions of the Act, in order to deprive the plaintiff of her rights. My Brethren, it seems, are of opinion that an ejectment for nonpayment of rent is maintainable under the circumstances of this case. I am not able to concur in that opinion, and my reasons are these the main question in the case is, what did the Legislature mean by the terms of the 68th section of the Grand Jury Act, "shall be deemed and become public property?" We must give some meaning to those words, and not suppose that they are merely snperfluous. The plaintiff's Counsel contended that this 68th section merely meant that, after presentment, an easement for public passengers should be kept up over the quay. But this would be to make the clause utterly useless, since, under the previous sections of the statute, this effect was provided for, in the case of a quay exactly as in the case of every other public way. No doubt, in the case of presented roads, an easement only is given to the public; the road is still private property; but, subject to the easement, the road is, and remains emphatically, private property; and so it would be with the quay or wharf in question, but for the enactment of this 68th section of the 6 & 7 W. 4, c. 116. That section pointedly directs that, after the presentment thereby contemplated, the pier or quay "shall be deemed and become public property;" that is, having been, before the presentment, private property, from the presentment it is to become public property-to become the property of the Crown for public purposes. The former section, the 67th section, had given power to grand juries to present for the erection. and enlargement of piers and quays on the banks of navigable rivers and lakes on the sea-coast, subject to certain specified provisoes. We shall, I think, arrive better at the mind of the Legislature by attending to the distinction between quays and wharfs the property of an individual, and quays and wharfs the property of the Crown. At Common Law, quays and wharfs were part of the prerogative and property of the Crown. It was part of the King's prerogative to appoint ports and havens: 4 Inst., p. 148. It was also part of his Queen's Bench MERRICK V. CUMMINS. prerogative to appoint proper wharfs and quays for the exclusive M. T. 1858. landing and loading of merchandise: 1 Black. Com., p. 264. These wharfs and quays were the property of the Crown, and necessary for the collection of customs and duties. In like manner, forts and castles erected for the defence of the realm were also the property of the Crown; and, once appointed and occupied by the Crown, no power save that of the Crown could remove or abate them. This doctrine applied only to the case of public or coronal quays or wharfs. An individual or individuals might erect wharfs or quays for their private purposes of trade or emolument; with such the Crown had nothing to do; and, before the last Grand Jury Act, these private quays remained still the property of the owners of the soil. This was felt to be an anomaly, and to lead to inconvenience; and, to remedy this, the 68th section of the Grand Jury Act was passed, by which, after the presentment of a Grand Jury to make or repair a quay, the property of an individual, but lying on the sea-coast, or on the bank of a navigable river, such quay thenceforth ceases to be private, and at once becomes public property, that is, the property of the Crown. The quay, part of the premises in this ejectment, was made by presentment in the year 1826, and was and continued to be private property, but subject to the easement of passage for all travellers and passengers; and private property it would still be (in my judgment) but for this clause, which divested the property from the private owners and vested it in the Crown, still subject however to the same easement. Quays and wharfs, the property of the Crown, are permanent in their use and nature; and, though the Grand Jury may stop up an old road, they cannot present for the stoppage of a public quay or wharf. But it was argued that, under the clause in question, the King could take only the wharf, leaving the soil and freehold still vested in the private The answer is given by the Common Law: the King cannot be partner with another in an entire thing-the prerogative swallows all: see 1 Black. Com., p. 409, referring to Plowden and other authorities; and so, if the King took land for a fort or castle, or appointed place, on the sea-side, or the bank of a navigable river, for quays or wharfs, the subject's right is divested, and the King owner. M. T. 1858. takes the whole; and if the law be against the plaintiff, as I think Queen's Bench it is, certainly he can claim no sympathy from the equity of his proceeding. MERRICK v. CUMMINS. It appears upon the special case that in this instance ample compensation was given for the property taken to erect this quay. The tenant's lease is for 990 years, at £46 yearly rent; and by a parol equitable arrangement between the landlord and tenant, the rent was reduced to £30 yearly, and for several years the abated rent was paid and received; the present landlord insists now upon the full rent. I asked the learned Counsel for the plaintiff this question— suppose that, instead of a small portion, the whole of the demised premises had been taken for the quay, what rent, if any, would the landlord require? The learned Counsel, consistently with his case, replied, the whole rent, the £46 yearly. In that view the landlord would have lost nothing; the tenant would have lost all, and besides be burdened with £46 a-year, so long as his lease should last. We can now see pretty clearly why it is that the plaintiff in this case has chosen to proceed by ejectment in preference to proceeding by debt or covenant, as he might have done. In debt and covenant a rent may be apportioned; in ejectment there can be no apportion ment. Now in my opinion this is a proper case for apportionment; part of the demised premises are taken by act of law from both landlord and tenant, and that for ever. Such is exactly the case for an apportionment. I need only refer to the case of Doe v. Meyler (a), as a decisive authority on this subject; and this being a case for apportionment, it is plain that ejectment cannot be maintained: Stevenson v Lambard (b). This being my opinion, I should say that the defendant was entitled to judgment; but, my two Brothers PERRIN and O'BRIEN being of the opposite opinion, the decision of the Court is that the plaintiff is entitled to judgment. |