Skip to Content

Colonial Cases

Colonial Government of the Cape of Good Hope v. Logan, 1903

[land appropriation, railways]

Colonial Government of the Cape of Good Hope v. Logan

Judicial Committee of the Privy Council
13 June 1903
Source: The Times, 15 June, 1903

(Present - Lord Macnaghten, Lord Davey, Lord Robertson, Lord Lindley, Sir Andrew Scoble and Sir Arthur Wilson.)
  This was an appeal from a judgment of the Supreme Court of the Cape of Good Hope of May 6, 1901.
  Mr. Lawson Walton, K.C., and Mr. Frederick Mackarness were counsel for the appellants; Mr. Boxall, K.C., and Mr. Dighton Pollock for the respondent.
  The arguments were recently heard before a Board composed of Lords Macnaghten, Davey, Robertson, and Lindley, and Sir Arthur Wilson, when judgment was reserved.
  Lord Davey, in delivering their Lordships' judgment yesterday, said the short question was whether the respondent was entitled to compensation for land expropriated by the Government of Cape Colony for purposes connected with a railroad constructed by the Government through the respondent's land.  The land in question was part of a farm called De Drai Farm or Kruispad, which was originally granted by the Government to one Schalk Willem Piemar on perpetual quit-rent; and by the deed of grant, which was dated November, 1838, the grant was expressed to be made subject to certain conditions therein mentioned, and as "being further subject to all such duties and regulations as either are already or shall in future be established respecting lands granted under similar terms."
  It had already been decided by the Board in "The Divisional Council of the Cape Division v. De Villiers" (2 App. Cas., 567), and it was not disputed, that lands of that tenure were subject to the provisions of the proclamation of Sir John Francis Cradock of August 6, 1813, for the conversion of loan places to perpetual quit rent. By that proclamation it was provided that every holder of a loan place, on his making application by memorial to the Government for the purpose, should have a grant of his land on perpetual quit rent to the same extent as he had theretofore legally possessed the same on loan.
  Sections 4 and 11 were as follows:-  Section 4 - "The Government reserves no other rights but those on mines of precious stones, gold, or silver, as also the rights of making and repairing public roads  and raising materials for that purpose on the premises; other mines of iron, lead, copper, tin, coal, slate, or limestone are to belong to the proprietor." Section 11 - "This perpetual quit rent" (meaning apparently the land held on that tenure) "shall further not be liable to any other burthens but those to which all freehold lands are already subject or which may hereafter be further prescribed."
  Under later legislation the powers of the Government in respect of the making of roads were vested partly in Road Commissioners and partly in Divisional Councils. The provisions of the earlier Ordinances and Acts for the purpose were consolidated in Act IX, of 1858, intituled "An Act to provide for the Management of the Public Roads of the Colony," the material sections of which for the present purposes, were as follows: "Section 10 - The Chief Commissioner or any assistant Commissioner, or any officer duly appointed by the Governor, and acting under the authority of the Governor, may enter upon and take possession of any main road and for the erection of toll-houses, toll-bars, residences for workmen, as for any other purpose relating to the execution of this Act; and they may enter upon all such land lying convenient to the main road, and there dig, get, and carry away any stone, clay, or other materials which may be required or serviceable for making or repairing any main road. Section 11 - For the purpose of making any such main road and for the providing any such toll-houses and residences as aforesaid, and generally for any of the objects of this Act, the aforesaid Commissioners of Roads, or other officer  by them duly authorized,  are hereby invested for the purpose of so doing with all and singular the legal rights, if any, belonging to the Government of this Colony,  in respect to the taking of any land and the raising and carrying away materials for making and repairing public roads, whether such rights have been preserved to the said Government by the proclamation of his Excellency Sir John Francis Cradock bearing date the 6th  day of August, 1813, permitting the conversion  of land on loan into places on perpetual quit rent,  not have been created by express stipulation or condition  in any grant of freehold property, or exist in any other way or manner whatsoever; Provided that no land be taken or materials be raised or carried away as aforesaid without previous notice to the proprietor thereof. Section 12 - If any of the aforesaid Commissioners of Roads acting under the authority of the Governor should require to take or use any land, or to dig, get, or carry away any materials situated as aforesaid, belonging to any person who may not be bound by law to allow the said Commissioners so to do without requiring any recompense or payment, and who may think proper to require compensation from the said Commissioner, or if he should require to use any land or take any material from any land that the Government may have a legal right to use, but which has been improved by cultivation, irrigation, or otherwise, he may treat and agree with every such person  for the materials, and may enter into any contract, relative to the obtaining of such land or materials and for compensation for the use of such unimproved land  upon such terms and conditions as he shall judge expedient"; and the same section  further provided, In case of disagreement between the owner of the land and the Commissioner as to the amount of the purchase-money, or hire, or other recompense to be respectively given and accepted,  for the same to be settled by arbitration as thereto appeared.
  By Section 3 of Act XIX of 1874, which provided for the construction  (amongst other railways) of a railway from Worcester to Beaufort West, all and singular the powers  which were by the Act IX of 1858 bestowed upon the Commissioners of Roads in regard to the making or repairing of any such main road as in  the said Act mentioned, or of any works in connexion therewith, were bestowed upon the Governor or any persons charged  by him with the making or maintaining the railways precisely as if the said powers and authorities were mutatis mutandis, therein again set forth, and as if the said railways  were public roads.
  The railway from Worcester to Beaufort West was constructed partly on lands forming part of that farm now belonging to the respondent, and a station called the Towers River Station was made there. Previously to and in the year 1885 the Government acquired portions of the farm for the purposes connected with the railway, including the building of an hotel, and paid Du Plessis, the then owner of the farm, £850 in respect of such expropriation. According to the evidence of Mr. Elliott, the General Manager of the Government Railways, that sum was paid because of the hotel, which he thought was not quite a railway purpose. On December 16, 1896, the Government gave notice to the executors of Du Plessis (then deceased) of their intention to appropriate a further portion of the farm, in extent 160 acres. The land appeared to be required for certain purposes connected with the existing railway other than construction or maintenance thereof.  By deed of transfer, dated February 24, 1897, the farm was conveyed to the respondent, who thereupon became and was now the registered owner of it. The respondent bought with notice of the notice of December 16, 1896.
  Lengthy negotiations thereupon ensued between the Government and the respondent respecting his right to compensation for the land expropriated under the notice of 1896 and respecting certain rights of water. In the result, the respondent, on July 25, 1900, commenced the present action for a declaration that the land claimed to be expropriated since 1885 was not required for railway purposes and for restoration of the same to him, with damages. The parties agreed that the issue to be determined was whether the respondent was entitled to compensation in respect of the expropriation.
  The Supreme Court gave judgment for the respondent, declaring him to be entitled to compensation for the land expropriated. It was admitted that the land had not been improved by cultivation, irrigation, or otherwise within the meaning of the 12th Section of Act IX of 1858, and that the appellant's right to expropriate the land without payment of compensation was derived from the proclamation of 1813, which (as he contended) was extended by the 11th Section of that Act to the other purposes mentioned in that section. The question, therefore, turned exclusively on the proper construction of the 11th section.  Did that section mean that the right of taking land and materials for the making and maintenance of roads reserved to the Government as regarded quit-rent lands by the proclamation of 1813 were extended and made applicable to the other purposes mentioned in the section? If the former was the true construction, the decision should be in favour of the appellant, for their Lordships thought that the power, if extended to taking land for new purposes, must be a power to expropriate without the payment of compensation as reserved by the proclamation. It must be admitted that the language of the section was capable of either construction.
  In favour of the appellant's construction it might be argued that the whole section was governed by the opening words "for the purpose of making any such main road and of providing any such toll-houses and residences as aforesaid and generally for any of the objects of this Act." And that the words "for the purpose of so doing" were repeated after the word "invested." On the other hand, if the object was to extend the existing power to new purposes, which was equivalent to the creation of a new power of expropriation, they would expect a much  more direct expression of the intention, and it might be pointed out that the section extended to freehold lands as well as quit-rent, and the existing powers which had been  created by express stipulation or condition or in some other way or manner as regarded freeholds might well be powers which would be sufficient for some or all of the purposes mentioned so as to satisfy the words of the section.
  Their Lordships were disposed to adopt the narrower construction of the section which would make it a transfer only of the existing powers from the Government to the Commissioners as more conformable with the language used. But their Lordships were also influenced by the consideration that the effect of the appellant's construction would be to take away the respondent's property without any compensation. Such an intention should not be imputed to the Legislature unless it be expressed in unequivocal terms. That principle had frequently been recognized by the Courts of this country as a canon of construction, and was approved and acted upon by Lord Watson in delivering the judgment of this Board in "The Western Counties Railway Company v. Windsor and Annapolis Railway Company."  (7 App. Cas., 178 at p. 188.) Their Lordships therefore agreed with the conclusion of the learned Judges in the Supreme Court, though not perhaps for quite the same reasons. They were of opinion that the respondent was not bound by law to allow the appellant to take the lands for the purposes for which they were required without recompense, and he was therefore entitled to compensation under the 12th section of the Act. They would therefore humbly advise his Majesty that the appeal be dismissed. The appellants would pay the costs of suit.

Published by Centre for Comparative Law, History and Governance at Macquarie Law School