Collins v. Hall & Fairweather.

as wharfage, or top wharfage so called, for all articles landed on or shipped from their respective wharves, at and after the rates and charges set forth in Schedule A to this Act." And the schedule referred to gives the rate of one halfpenny for each barrel of flour.

The first Act for the collection of top wharfage was passed in 1842, 5 Vict. c. 39, in the 6th section of which Act is the following recital : "Whereas the tops or surfaces of wharves in the said City and Parish are not kept by the owners in a proper state of repair, suitable for the landing and loading of goods, by reason of their being no regulated compensation for the privilege of using the same, Be it therefore enacted, &c., (as in existing law) the alterations made by 18 Vict. c. 41, being only in scale of fees.

It is therefore evident that the Legislature intended to give and did give to the owners and lessees of wharves properly planked or timbered on the surface, a compensation in the nature of wharfage for all goods landed at their wharves.

In this case it is admitted that the plaintiff is the owner of this wharf on which the defendants' goods were landed, and that the wharf is properly planked and timbered on the surface. Why then is he not entitled to the compensation provided by the Act of Assembly?

The defendants contended that Johnston having built his wharf on conditions that the right of way under the agreement first made should extend over it, the plaintiff, who stands in Johnston's place, cannot claim top wharfage against those who have the right of way in common; but then it must be borne in mind that Pagan kept an open slip or landing place on his property to the north of the wharf built by him under the first agreement, while the other owners built up their lots facing on the common way; and the fact that Pagan had the sole right to the wharfage revenue at his landing place on the north side of the common way, was recognized in the first agreement, side wharfage being the only wharfage compensation then known to the law.

The Johnston pier-head was afterwards built, and the statute gave the compensation of top wharfage to the owner. Each person owns the wharf built on his own property, and it is the right of way only that is in common. No right to land goods is mentioned or reserved, but the right of way is from all parts of the lots over the passage to and from the street, and on the entire extent of wharf.

On consideration therefore of the whole case, we do not think that the right to pass over the top of the wharf gives all the owners of property facing on the wharf the right to land goods on the piece of wharf built by Johnston and owned by plaintiff, without paying the wharfage compensation given by the statute.

Collins v. Hall & Fairweather.

We are of opinion that the plaintiff is entitled to recover in this action. Judgment for plaintiff.

A rule nisi for a certiorari having been obtained,

S. R. Thomson, Q. C., and J. A. Wright, shewed cause in Michaelmas Term: The amount in this case is small, but the revenues of the year which may be affected by the decision are large. These parties are acting in an entire misconception of their rights. What right have they to set up jus tertii, as they are here doing? The corporation may have a right to pass over the wharf free, but that does not give others a right. Supposing the extension to stand on the same footing as other parts of the wharf-which we deny-the defendants are still liable; because the agreement of 1814 gave only a right of way, or a right to pass over the wharf. [RITCHIE, C. J. : Does not that right relate to the kind of business there?] At the time this agreement was made, no such thing as top wharfage was known, and a right of way gives no right to land goods, (Angell on Highways, § 305-319). It has been held to be trespass for a ferryman to land goods at the end of a highway, without the consent of the owner of the soil, (Angell on Highways, sec. 304). In this case the liability is attached to the defendant by a statute passed in 1842, long after the agreement was made. The first top wharfage Act was 5 Vict. cap. 39; that Act we contend overrides all agreements. The 18th Vict. cap. 41 repeals the 6th sec. of the former Act, and reenacts it with a new scale of fees. But this extension was never subject to the agreement of 1814, and these parties are merely setting up the right of a third party, which they are not entitled to do.

C. W. Weldon, contra. If this contention is correct, the original piece of wharf is as much a wharf as the addition, and each party has a right to charge the others top wharfage. I contend that by the agreement of 1814 they merely agreed to build up a street, and not to interfere with the right of way of each other. Johnston got no interest in the soil, but merely a right from the Corporation to make a public street on the extension. It is a fallacy to say that this a wharf, within the meaning of the Act respecting top wharfage. They can collect side wharfage, for that is preserved by the agreement. If it appears by the papers-as I contend it does-that this is not a wharf but a public street, then no top wharfage can be collected; for this is held merely by a license from the Corporation, and not by lease.

Cur, adv. vult.

RITCHIE, C. J., now delivered the judgment of the Court.

Collins v. Hall & Fairweather.

We think the agreement originally entered into only contemplated the establishmeut of a passage way in common to the parties, the right to wharfage being expressly reserved to Pagan. When Johnston got the permission from the Corporation to extend this passage way, it was on the terms of the original agreement by which the right to wharfage was reserved. When the legislature authorized the collection of top wharfage on the terms of the Act being complied with, this conferred a right on Johnston the owner of the wharf, but gave the proprietors of the Jones and Horsfield lots, who were not even parties to the agreement between Johnston and the Corporation, no right to use the wharf built by Johnston, other than at most as a common passage way. If they used it as a wharf and not as a common passage, we think they must pay the lawful wharfage which belongs to the owner of the wharf, and to him alone. A vessel has no right to come to this wharf and land her cargo, without the owner of the vessel and consignees of the cargo paying the legal wharfage alike for the vessel and cargo; and the mere fact of an occupier of the Jones or Horsfield lot being an owner of that cargo, can give him no right to claim exemption from wharfage, any more than if the cargo was owned by third parties, they would have a right to claim a proportion of the top wharfage, by reason of their ownership of the property to the southward and eastward.

Rule discharged with costs.

CASES

ARGUED AND DETERMINED

IN THE

SUPREME COURT OF NEW BRUNSWICK,

IN TRINITY TERM,

IN THE THIRTY-THIRD YEAR OF THE REIGN OF QUEEN VICTORIA.

DOE ex dem. ST. GEORGE'S CHURCH v. COUGLE & MAYES.

JUNE 18, 1870.

The Church Wardens of a Parish Church have no right to shut it up to prevent public worship to be held there, as against the Rector, or if there bc no Rector, as against the Church Corporation.

The Lieutenant Governor of this Province, prior to 32 Vict. cap. 6, had by virtue of the Queen's prerogative and the laws relating to the Church of England in this Prov ince, the right to collate and present to a vacant Rectory.

This was a special case; the facts are as follows:-An action of ejectment was brought to recover certain lands and premises, together with the Parish Church and School-house standing thereon, situate in the Parish of Carleton, in the City of St. John, and particularly described in the Consent Rule.

The Declaration, which is of Easter Term, 32nd Victoria, contains two demises; one in the name of the Church Corporation, laid on the first day of April, A. D, 1869; and the other in the name of the Reverend William Walker (who claims to be Rector of the said Church) as Rector of the said Church, laid on the same day.

The defendants claim to be Churchwardens of the said Church, under the eircumstances hereinafter stated. They have appeared, entered into the usual Consent Rule, and pleaded not guilty to the said Declaration. Issue having been joined by the consent of S. R. Thomson, attorney for the lessors of the plaintiff, and of William Wedderburn, attorney for the defendants, and by order of Mr. JUSTICE WELDON, the following case has been stated for the opinion of

Doe ex dem. St. George's Church v. Cougle & Mayes.

the Court. The Declaration, Plea, and Consent Rule are part of the case, and can be referred to if necessary.

The Rector, Churchwardens and Vestry of St. George's Church, in the Parish of Carleton, were incorporated, and the Parish erected by 5 Geo. IV, cap. 19, and the title to the lands named in the Consent Rule has, ever since the passing of the said Act, been vested in the said Rector, Churchwardens, and Vestry of St. George's Church, in the Parish of Carleton, in the City of St. John, or in the Rector of the said Church as such Rector.

The Rev. Frederick Coster became the first Rector of the said Church many years ago, and continued to be such Rector until the 9th day of December, A. D. 1866, when he died; the Rectory thus became vacant. On the 27th day of December, A. D. 1866, his Excellency Major General Doyle then being the Administrator of the Government of this Province, in the absence of the then Lieutenant Governor, issued to the said William Walker a paper-writing, as and for letters of presentation, addressed to the Lord Bishop of Fredericton, in whose diocese the said Church and Parish are situated, which alleged letters of presentation are under the hands of the said General Doyle as such Administrator of the Government, and of the acting Provincial Secretary, and the Great Seal of this Province, and are as follow:

[L. S.] To the Right Reverend Father in God, John, by Divine permission, Lord Bishop of Fredericton: To his Vicar General in spirituals, or to any other person or persons having or to have sufficient authority on his behalf :

HASTINGS DOYLE:
I, Major General Charles Hastings Doyle, Administrator of the Government, and
Commander in Chief in and over the Province of New Brunswick and its
Dependencies, the undoubted and true Patron of the Church undermentioned,
within the jurisdiction of your Lordship, send Greeting:

I Present to your Lordship, and to the Rectory of St. George's Church, Carleton, in the County of St. John, William Walker, Clerk; the said Rectory and Church being now void, and to my presentation in full right belonging, praying your Lordship to admit and canonically to institute him, the said William Walker, to the said Rectory and Church aforesaid, and to invest him with all and singular the rights, members, and appurtenances thereunto belonging, and to cause him to be inducted into the real, actual, and corporeal possession thereof, and to do all things which to your Pastoral Office may in this case appertain or belong.

Given under my hand and seal at Fredericton, the twenty-seventh day of December, one thousand eight hundred and sixty-six.

By His Excellency's Command,

R. FULTON.

On the said 27th day of December, A. D. 1866, the said Rev. William Walker was only in Deacon's orders. On Sunday, the 27th day of January, A. D. 1867, he was duly ordained and admitted to Priest's Orders by the said Lord Bishop of Fredericton..