S.C. 1901. FITZGERALD v. KELBURNE AND KARORI TRAMWAY COMPANY. rect one. 66 method of assessing compensation suggested above is the corNext, as to the English Acts: The decision in Hammersmith, &c., Railway Company v. Brand(1) rested on "The Railways Clauses Consolidation Act, 1845," not on The Lands Clauses Consolidation Act, 1845." Lord Chelmsford said expressly in that case that the Railways Clauses Consolidation Act alone was to be looked to, and it was the wording of sections 6 and 16 of that Act which was relied on, and the fact that they were placed under the heading "with respect "to the construction of the railway and the works connected therewith." It is impossible to invoke that case in construing the New Zealand Act. 66 T. F. Martin and C. H. Izard, for the respondent : The New Zealand Acts are an adaptation and simplification of the English provisions. The provision as to compensation is contained in one short clause, but the principles laid down in England were intended to be adopted. If it had been intended to lay down a new basis very different language would have been used. While the damage must be what would be actionable but for the statute, it does not follow that because it would have been actionable, therefore there is compensation. The damage may be merely personal. The English rule is that, where land is not taken, there must always at least have been an interference with something in the nature of an easement in order to give a right to compensation. The New Zealand statutes cannot be distinguished. Hall v. The Mayor, &c., of Bristol(2) is a case on a statute in which the language was wider even than that of our own Act, and yet the right to compensation was cut down in the same way as in the other English cases. [COOPER, J., referred to The Queen v. The Wallasey Local Board of Health(3) as a case on the same Act (a Public Health Act) in which no land was taken and compensation was allowed.] There a right as frontager was interfered with. There are two New Zealand cases in which the limits of compensation S.C. 1901. FITZGERALD v. KELBURNE AND KARORI COMPANY. are discussed: Jenkins v. The Corporation, &c., of Wellington(1), per Edwards, J., at page 131; White v. The Minister for Railways(2), where it was held that there could be no claim for damage by the firing of grass by sparks from a railway-engine. In The American and English Encyclopædia TRAMWAY of Law(3), under the heading "Injuriously affecting Pro"perty," it is said that the injury must be direct in its nature, and that there can be no compensation for what is suffered in common with the rest of the public. As to how far the language of the New Zealand statutes differs from that of the English statutes: There are three clauses in the Lands Clauses Consolidation Act which deal with the subject of compensation -sections 49, 63, and 68. Sections 49 and 63 deal only with cases where land has been taken. Section 68 was primarily intended to set out procedure, but it includes a reference to lands injuriously affected, and is the only section which gives compensation for injurious affection. Section 6 of the Railways Clauses Consolidation Act deals both with lands taken and with lands injuriously affected. Section 16 is a long section with a proviso as to compensation, and has given much trouble. There has been a difference of opinion in the House of Lords. Some have read the provision as applying to compensation for the exercise of all powers, some as referring to the exercise of the special powers given by the section. But it seems to be agreed in England that the basis is the same under the Railways Clauses Consolidation Act as under the Lands Clauses Consolidation Act: Cripps's Law of Compensation(4). Section 49 of the Lands Clauses Consolidation Act contains the core of section 68 of our Act of 1894; so also does section 63 of the English Act. Section 68 of the English Act is the only section under which compensation can be obtained in England for injurious affection alone, no land being taken: Cripps's Law of Compensation(5). Our section 68 applies to all cases. A reference to section 37 of our Act of 1894 shows that damage to lands only is referred to in section 34, although the words are "every person." And the (1) 15 N.Z. L.R. 118. (2) 16 N.Z. L.R. 71. (3) Vol. vi. 544, 578. (4) 3rd ed. 142, 143–44. S.C. 1901. FITZGERALD forms of claim in the Schedule to the lands taken or lands injuriously affected. Act of 1894 governs everything which is KELBURNE tion 34. AND KARORI Act are only for Section 68 of the mentioned in sec TRAMWAY [COOPER, J.-Do you say that there is no compensation COMPANY. whatever for injurious affection except where some land is taken?] Unless an easement, or something in the nature of an easement, is interfered with. [EDWARDS, J.-Is not the right to have surface-water run off an easement?] Though there is a right it is not an easement. Cripps's Law of Compensation (1) deals with the flow of water. The words of section 68 of our Act, "or by the nature of the "works," are necessary to meet the case of mere injurious affection where no land is taken. They are not superadded to the section of the Lands Clauses Consolidation Act, but are put in to adapt our section 68 to meet both the case of land taken and the case of injurious affection without land being taken. The clause of the special statute, section 7 of "The Wellington High Levels Tramway Act, 1898," does not alter the nature of the compensation which can be claimed. The proviso is intended to qualify section 68 of "The Public Works Act, 1894," only as to time. It displaces so much of section 68 as entitles a claimant to claim at once for all damage likely to be afterwards sustained. It refers to subsidences caused by the underground works amounting to interference with the legal right of support. Section 11 throws some light on section 7. Findlay in reply. Cur, adv. vult. COOPER, J., delivered the judgment of the Court (2) as follows: The view we take of the provisions of "The Public Works Act, 1894," renders it unnecessary for us to attempt to recon(1) 3rd ed. 150. (2) Stout, C.J., and Williams, Denniston, Conolly, Edwards, and Cooper, JJ. 66 66 66 S.C. 1901. FITZGERALD V. AND KARORI cile the many apparently conflicting decisions of the English Courts upon the English "Lands Clauses Consolidation Act, 1845," and "The Railways Clauses Consolidation Act, 1845," for, in our opinion, the answers to the questions put to the KELBURNE Court in this case, and the right to compensation given in TRAMWAY COMPANY. this colony to persons whose lands are taken or injuriously affected by the exercise of the powers contained in "The Public Works Act, 1894," depend upon the provisions of that statute, which are not the same as those contained in the English Acts. Section 34 of "The Public Works Act, 1894," provides that " Every person having any estate or interest "in any lands taken under this Act for any public works, "or injuriously affected thereby, or suffering any damage "from the exercise of any of the powers hereby given, shall be entitled to full compensation for the same from the "Minister or local authority, as the case may be, by whose authority such works may be executed or power exercised.” Section 68 is as follows: "In determining the amount of compensation to be awarded, the Court shall take into "account severally the value of the land or interests in "land, including riparian rights, taken, and the extent to "which any lands in which the claimant has an interest or are likely to be injuriously affected, either by severance or by the nature of the works in question, and "shall also take into account, by way of deduction from "the amount of compensation to be awarded, any increase "in the value of such lands likely to be caused by the exe"cution of such works.” In section 64 of "The Public Works Act, 1876," and in section 60 of "The Public Works Act, 1882"-the sections to which section 68 of the present Act corresponds the Court, in assessing compensation for damages to lands injuriously affected, was limited to lands adjacent to lands taken for the public work; but the word "any" is in section 68 of the present Act substituted for "adjacent," and the area within which the injury to lands caused by the construction of a public work may be the subject for compensation has thus been manifestly enlarged. 66 "are 66 S.C. 1901. FITZGERALD V. In our opinion, the effect of "The Public Works Act, 1894," is to entitle a person whose lands are injuriously affected to full compensation for all damage sustained by the KELBURNE execution of a public work, irrespective of whether any land TRAMWAY has been taken; and, in order to give effect to the declara COMPANY tion in section 34 that such full compensation shall be given, AND KARORI the Legislature has departed from the narrower measure of damage defined in 1869 as recoverable under the Lands Clauses and Railways Clauses Acts by the majority of the Lords in the well-known case of Hammersmith, &c., Railway Company v. Brand(1), and has given to a claimant for compensation the right to recover all damage which he suffers from the injurious affection of his land by the exercise of the powers contained in the statutes, caused either (a) by the actual taking of his land, (b) by severance, (c) by injury where no land is taken, (d) by construction of the work, and (e) by the user of the work. And, in order that complete justice may be done to both parties, the Legislature has introduced an element in the assessment of such damage not contained in the English Acts-namely, that any increase in the value of the claimant's land likely to be caused by the execution of the works is to be deducted from the amount of compensation to be awarded. The Privy Council have, in Harding v. The Board of Land and Works(2), determined that the words "the making of "such works or undertaking," in the 35th section of the Victorian Lands Compensation Statute of 1869, mean the "user as well as the construction of such works; and that, in considering the increase in value likely to be caused by reason of the "making of a public work or undertaking for the purpose of deducting such increase from a claim for compensation, the "works" or "undertaking" must be treated as works in operation and as a going concern, and that the enhancement in value may arise from their use as well as from their construction. In section 68 of our Act, the concluding words under which a set-off for enhancement in value is to be allowed are (1) L.R. 4 H.L. 171. "the (2) 11 App. Cas. 208; 55 L.J. P.C. 11. |