C.A. In my opinion, the appellant had a right of access to the Christchurch Racecourse on the same terms as the other memPATTERSON bers of the public. He is admitted to have complied with 1901. v. CANTERBURY these terms. JOCKEY There is no English case directly in point, but there are cases which, in my opinion, support the view that the Christchurch Racecourse is subject to a public right. In The Attorney-General v. The Corporation of Southampton (1) it was held that land appropriated as a recreation-ground could not be diverted to any other purpose. The right to use the ground for the purpose of recreation is referred to as a public right. In The Attorney-General v. Corporation of Sunderland (2) the Corporation was restrained from using any part of lands set aside for "public walks and pleasure-grounds" for any purpose inconsistent with these. In Attorney-General . Mayor of Leeds(3), Jessel, M.R., held that a park purchased by a local authority under an Act authorising them to purchase lands for the purpose of providing additional places for public amusement or recreation was appropriated for public use and recreation, and that this meant for free and gratuitous use. He held also that if the local authority imposed a payment as the condition of entering the park, the public were excluded from its use. In Attorney-General v. Loughborough Local Board, reported only in the Times newspaper but referred to in Glen's Public Health Act(4), Hall, V.C., restrained a local Board from letting a recreation-ground belonging to them to an athletic club for one day, holding that it was not competent to them to exclude the public therefrom even for a single day. These cases show that the ownership of the fee in lands held for public purposes which involve a user by the public does not enable the person or body corporate in whom the fee is vested in any way to interfere with the public right of user. The same principle is illustrated by the public right of highway. The fact that the English reported cases are all cases in which the Attorney-General has intervened to protect the public right does not appear to me (1) 1 Giff. 363; 29 L.J. Ch. 282. (3) 24 Sol. Journ. 539. C.A. 1901. v. JOCKEY CLUB. to lead to the inference that any member of the public cannot assert his right against those who are wrongfully in physical possession of the land, provided he can do so without a breach PATTERSON of the peace. He certainly can do so in the case of an CANTERBURY interference with the right of highway, although the fee may be vested in the person who interferes with the right. Upon principle it appears to me that he can do so in the case of an interference with any other public right. Probably this would hardly be disputed in the case of a public recreation-ground. It may not be unworthy of notice that the Legislature, in "The Ashburton Racecourse Reserve Act, 1882," has dealt with a reserve as being both a racecourse and recreationground, and has given to the Trustees of such reserve exactly the same powers in the same words as are given to the Trustees of the Christchurch Racecourse by the Act of 1878. The English cases show that the public cannot for even a single day be excluded from a public recreation-ground. If the argument for the respondents be correct, the public may be entirely so excluded from the Ashburton Recreation-ground, although the Legislature has declared it to be a public recreation-ground. The case of Thomas v. Marsh(1) has been referred to in support of the proposition that the public right can only be asserted in proceedings instituted by the Attorney-General. I do not think that the case supports that proposition. The County Hall was vested by statute in the Justices of the Peace, upon trust to allow Courts of justice to sit there, and to permit and suffer it to be used for such other public purposes as the major part of the Justices in sessions should direct. The hall had always been used for the county musical festivals, but there was no evidence that the Justices had directed it to be so used. The plaintiff insisted upon entering when a musical festival and ball were going on. It was held by Parke, J., that the defendants, who excluded him, could do so by virtue of their possession. This case is only another illustration of the principle of which Graham v. Peat (2) and Oughton v. Seppings(3), also referred to, are examples-that (1) 5 C. & P. 596. (3) 1 B. & Ad. 241; 8 L.J. (0.8.) K.B. 394. C.A. 1901. PATTERSON v. bare possession is good as against any person who cannot establish a better right. This principle is familiar both with respect to land and to chattels, and is ordinarily expressed CANTERBURY in the phrase "Bare possession is sufficient as against a JOCKEY 66 CLUB. wrongdoer." In Thomas v. Marsh(1) the plaintiff was clearly a wrongdoer. The occasion was not one upon which the public had any right to enter the hall. Whether the defendants were in possession or not, the plaintiff's entry at that time would clearly have been a trespass. This being the case, it was held that the defendants could rely upon their possession. There is nothing in the case to lead to the inference that the Justices could lawfully have excluded the plaintiff upon any occasion when the public had a right to enter the hall, or that he could not on such an occasion have insisted upon entering the hall, provided he could do so without a breach of the peace. The appellant in the present case has established that the occasion was one upon which the public had a right to enter the racecourse, subject to any regulations lawfully made by the Trustees. He succeeded in doing so without creating a breach of the peace. I am at a loss, therefore, to understand how he can be held to have been a trespasser. For these reasons I think that the appeal should be allowed, and judgment entered in the action for the appellant, with costs on the middle scale and certificate for second counsel (as allowed to the respondent in the Court below), and with costs in this Court on the middle scale, as on a case from a distance. COOPER, J.: This is an appeal from a judgment of his Honour Mr. Justice Denniston in favour of the respondents, in an action brought by the respondents against the appellant claiming damages for an alleged trespass upon the Christchurch Race course. The facts are not disputed, and are shortly these: By grant from the Crown dated the 31st of March, 1857, the land in (1) 5 C. & P. 596. course. 66 C.A. 1901. PATTERSON V.. JOCKEY CLUB. question was granted to James Edward FitzGerald, then Superintendent of the Province of Canterbury, and his successors, Superintendents as aforesaid, upon trust for a public raceThe grant was made under The Public Reserves Act, CANTERBURY 1854," which gave power to the Governor, with the advice of his Executive Council, to grant to the Superintendent of each province in New Zealand such demesne lands of the Crown as should have been theretofore or thereafter reserved for purposes of public utility. By section 5 of that Act the Superintendent in whom such lands shall have become vested, "shall hold the same upon trust for the public service of such province for the purposes specified in such grant, with as full power to dispose of and manage the same for such purposes as if the same were vested absolutely in such Superintendent, subject, "nevertheless, to the provisions hereinafter contained." Under section 7 of that Act the Superintendent had power to lease such lands for a period not exceeding three years. 66 By The Christchurch Racecourse Reserve Act, 1878," the land was vested in a Board of Trustees therein named, who were created a body corporate, with power to hold the lands either as a site for a racecourse or for any other purpose in connection therewith. They had power also to set apart a portion of the land for the purposes of a racecourse, and from time to time to vary and alter the portion so set apart and to set apart another portion in lieu thereof. They had also power to lease either the whole or any part of the land, at such rent and on such conditions as they might think reasonable, for a period not exceeding seven years, and on conditions not inconsistent with the purposes of the racecourse. Under section 11 of that Act they were " authorised and empowered from "time to time to make and alter rules for regulating their "own proceedings, for prescribing the conditions on which the public shall be permitted to have access to the said racecourse upon any day when the same shall be used for racing purposes, and for regulating the price for admission on such occasions, for excluding the public from such parts of the said parcel of land as it may be found necessary and desir"able to improve or lay down in artificial grasses, for regulat 66 66 66 66 C.A. 1901. PATTERSON บ. 66 "ing the charges that may be made for the occupation of the "said racecourse for the erection of booths or stalls for the "sale of refreshments, merchandise, goods, or chattels, and for CANTERBURY the admission of horses and vehicles to the said racecourse." Under section 9 of that Act they had power not only to improve the land, but to provide out of the rents, issues, and profits of the land prizes for races to be run on the racecourse, and generally in and towards the encouragement of the breeding of horses. JOCKEY 66 46 66 Section 7 of The Public Reserves Act 1881 Amendment Act, 1885," conferred additional powers upon the Trustees. Subsections 1, 2, 3, and 5 of that section are substantially the same as section 11 of the Act of 1878. But subsection 4 gave power to the Trustees to appoint "the terms, conditions, and 'dates on which the racecourse may be from time to time "used by any racing or jockey club as hereinafter pro'vided." And subsection 6 gave them power to make regulations for the preservation of order on the racecourse during race-meetings. Section 8 of that Act is as follows: "The racecourse, subject to the Trustees, shall be available to any racing or jockey club for the purpose of holding race"meetings, upon such terms and conditions as shall from time "to time be publicly advertised by the Trustees, and at such dates as they may in every such case appoint: Provided always that such racing or jockey club shall consist of not "less than fifty members who shall each have paid an annual subscription of not less than twenty shillings per annum towards the funds of such club." They had, under section 9 of that Act, the same power to lease as was given to them under section 8 of the Act of 1878; and under section 10 of the Act of 1885 they had power to expend moneys received by them out of the rents, issues, and profits of the land in, inter alia, the erection of an ornamental stand or pavilion thereon. 66 66 On the 18th of September, 1900, the Trustees rescinded the rules and regulations previously made by them for the management of the reserve, and purported to make new rules and regulations, the material one in question in the present appeal |