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Case for Opinion.

Gentlemen,—Be good enough to advise as to the bearing of the Sections 184 to 194 "Municipal Corporation Act 1876," as concerns this Corporation.

Several questions occur upon which your opinion is desired.

1st. As to Section 186:—Can we alter the level of any Street in the City which may have been already formed and metalled, or, indeed, only formed, otherwise than by "Special Order;" and if so altered, will the Council be liable or not to pay compensation for the actual damage caused by such alterations?

2nd. Section 190:—We have not yet made this map. Are we bound to make it within any specified time, or docs the Council incur any responsibility in deferring its completion?

3rd. Section 190:—Can we exclude from the map such streets (being already formed and metalled, or being formed only) as Council may consider ought to have further alterations effected in the levels thereof prior to being placed on the map?

4th. Section 191:—All buildings are to be erected having regard to the map alluded to in Section 190. No map having been prepared, can anyone build to such level as he finds to any formed street, and hold the Council liable for any departure subsequently made by the Corporation from such level?

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5th. Section 192:—London street has been in the past formed and metalled. If it is desired to alter the level can Council in this case proceed to do so under this Section and Sub-sections, without being liable to pay compensation for any actual damage sustained by such alteration? or, if an alteration in level cannot be effected under this Section, how can it be effected, without liability for compensation?

6th. Section 192:—Does this Section when taken with other Sections, preclude our altering the level of any street, already partially or wholly formed, except upon paying such compensation as is mentioned in Section 194?

7th. Section 193:—As I have already stated, we have not yet made the map herein referred to.

As respects Dunedin, until the map is made can the whole of the streets of the City be regarded as new streets, and be dealt with accordingly, in terms of this Section?

In the case of Dunedin, what streets do you regard as new ones?

8th. Section 194:—In view of this Section and seeing that the map as per Section 190 has not been made, will Council be liable to pay compensation, as per Section 194, for damage sustained through the alteration in levels of any streets in the City, whether such streets may have been previously formed or left unformed?

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Opinions of Counsel.

The following is my opinion upon the several questions submitted to me:—

1. That the Council cannot alter the level of any Street in the City which has been already formed and metalled or formed [or constructed] beyond removing any inequalities without paying compensation to owners of property who may sustain actual damage, and I feel fortified in this view by the language of Section 194.

See Cary v. Kingston upon Hull Local Board, 5 B. & S., 815; S.C., 34 L.J., M.C., 7.

No Special Order would be necessary for such levelling.

George Cook.

1. The language of Section 186 is so general as, in our opinion, to apply to any alteration of a street, whether in respect of its level or otherwise, and therefore, in our opinion, a "Special Order" is necessary in the cases supposed. With regard to liability to pay compensation, if the level of the street has been fixed, within the meaning of Section 194, we are of opinion that the Corporation will be liable to pay compensation for any damage caused by subsequent alteration of level, but not for any damage arising from alteration of the level of other streets. What the precise meaning of the words in Section 194 "after fixing the level of any street as herein provided" may be, it is difficult to determine. We will express our view of the matter when dealing with question 8.

Smith, Anderson & Co.

1. Part XI. of the "Municipal Corporations Act 1876" having been brought into operation in Dunedin, I am of opinion that Section page 6 186 must be taken to impose a limit upon the powers which the City Council previously possessed of altering any of the existing streets.

There is no doubt authority for saying that an affirmative statute which gives a new right of itself does not destroy a previously existing right; unless the intention of the Legislature be apparent that the two rights should not exist together. See the cases collected in Broom's Maxims (5th ed., 29), where it is said that in order to repeal an existing enactment a Statute must have either express words of repeal, or must be contrary to or inconsistent with the provisions of the law said to have been repealed. Giving however all due weight to the fact that the provisions in the Ordinance of 1865, and the "Municipal Corporations Act 1876," are couched in affirmative words, Section 186 of the last mentioned Act does seem to me to preclude the possibility of the Council altering an existing street without a Special Order. My answer to the first question is, therefore, in the negative.

James Macassey.

1. The Council cannot alter the level of any street in the City under Section 186. The word "alter" in that Section is used in the same sense as it is used in Section 185, that is in reference to the course of the street or the width of it, and not at all in reference to the level. The question of the levels of streets is dealt with in Sections 190, 192, 193, and 191, and all the powers of the Council to alter street levels are contained in those Sections.

I think (but it is by no means clear) that the Council may, when preparing the map of the Borough under the 190th Section, show other levels than those at present existing as being the permanent levels of streets which have been already formed and metalled and may generally be supposed to be constructed to their permanent level, and may subsequently vary the levels of such streets from time to time, whilst exercising their powers of constructing and repairing under Section 185, and may ultimately raise or lower, as the case may be, such streets to the levels shown in the map as the permanent levels, without thereby rendering the Corporation liable for compensation under Section 194. But I am of opinion that, until such a map is made, the Council has no power to interfere with the levels of any street already constructed further than may necessarily result from the exercise of the power of constructing and repairing conferred by Section 185. And I am further of opinion that the intention was to give the Council power to alter the levels of street's constructed to what was intended to be the permanent level at the time when the Act came or was brought into operation in the Borough, only upon payment of compensation for the actual damage caused by the alteration, and if (as I have already stated page 7 I think may be possible) there is a loop-hole left for getting out of the payment of compensation, by shewing other than the existing levels of constructed streets as the permanent levels, it is accidental, and was never intended to be so.

With regard to streets which are formed and metalled, and as to which there is no fair ground for asserting that the present levels were intended to be permanent, I think the intended permanent levels should be shown on the map, and, in such cases, no compensation will be payable when such streets are altered to the levels so shown.

B. C. Haggitt.

1. Any alteration in the level of an existing street can be made only by special order under Section 82 of "The Municipal Corporation Act 1876." Section 186 applies to any street whether formed and metalled or not. The expression "any existing street" cannot be limited to a street in any particular state. The Council would not be liable for any damage provided its servants or agents do not trespass on adjoining lands, or so perform the work as to create a direct injury thereto. It is important to keep in view the provisions of Section 185 in interpreting the other Sections. It may be suggested whether the word "alter" in Section 186 has not the restricted meaning given to it by Sub-section 3 of the preceding Section. Where an authority to execute works is given by Statute, no person is entitled to maintain an action for any injury which he may sustain through the performance of the works, unless the Statute gives him compensation. (Duncan v. Findlater, 6 CI. & Fin., 908). The works being done under Legislative authority are held to be lawful so long as they are carried out properly; that is to say, not carelessly or recklessly. (Caledonian Railway Co. v. Ogilvy, 2 Macq., Sc. App., 246). Consequential damage is not recoverable. (Per Willes in Herring v. Metropolitan Board of Works, 34 L.J., M.C., 224); (Sutton v. Clarke, 6 Taunt., 42). So long as a public body in the performance of works keeps within the powers conferred on it by Statute, it is not liable to pay damage or compensation unless the Statute gives a right thereto.

W. Downie Stewart.

2. The words "after the passing of this Act" used in this Section would, as applied to the Corporation of the City of Dunedin, probably be construed to mean "after the adoption of this Act." I think the Council are not bound to make the map within any specified time; the language of the Section is "as soon as conveniently may be." It would be for the Court to say what was a reasonable time (see authorities page 8 cited in 4 Fisher's Digest, 8329-30), upon an application by any ratepayer for a Mandamus against the Corporation for not making the Map. The words last quoted would, doubtless, receive a liberal construction, and the Court might think a year reasonable. Should the map not be made within such time as the Court might think reasonable, a Rule for a Mandamus would be made absolute; and if the Writ were disobeyed, the Members of the Council would be liable to be attached and committed to prison until they complied with the command contained in the Writ.

George Cook.

2. There is no time specified within which the map referred to in Section 190 is required to be made; but the tenor of that and the following section shows, in our opinion, that the words "as soon as conveniently may be" should be taken to mean "as soon as practicable." The language of Section 191 makes the necessity of fixing the levels by the completion of the map most obvious and urgent, for the tendency of that section is to prevent the erection of buildings in any streets except such as were "permanently constructed" at the time the City came under the operation of the Act. The Council could, in our opinion, be compelled by Mandamus to proceed with the preparation of the map; but, apart from that, they are, in our opinion, under no responsibility.

Smith, Anderson & Co.

2. Section 190 of the "Municipal Corporations Act 1876" casts a positive duty upon the Council, which is none the less a duty because it is to be performed "as soon as conveniently may be after the passing of the Act." The performance of the duty which the Legislature has enjoined the Council to discharge, may be enforced by Mandamus; and it would lie upon the Council to exonerate itself by assigning valid reasons for the non-preparation or completion of the requisite map. In addition to the general remedy by Mandamus, there may be also a separate and distinct liability on the part of the Corporation to any individual able to prove a loss resulting from the omission to prepare and complete the map. The map ought to be prepared within a reasonable time after the passing of the Act of 1876.

James Macassey.

2. There is no specified time for making this map; it must be done within a reasonable time. There is no penalty for deferring the making page 9 of the map, but I think a Mandamus would lie to compel the making of the map as a public duty.

B. C. Haggitt.

2. The expression in Section 190 "as soon as conveniently may be" confers a discretion on the Council which, however, must be exercised reasonably. The Council cannot defer indefinitely the preparation of the plan, and if any citizen was desirous of building he could call upon the Council to prepare the plan, and in the event of it (the Council) refusing after reasonable notice, and without good grounds to do so, the Supreme Court would by Mandamus compel the Council to comply with the Statute. The length and reasonableness of the notice would, I think, depend on the time the Council had had to prepare the plan, and the extent and nature of the Borough. For example: The Council of a Corporation which had just been created under the Act would be entitled to longer notice than a Council which had been working under the Act for, say, a year.

The meaning of the Section is, that the Council having regard to all the surrounding circumstances in which it is placed, must not unreasonably delay the preparation of the plan. Until the plan has been prepared I do not think the Council incurs any responsibility beyond what I have stated in my answer to the preceding question.

W. Downie Stewart.

3. No.

George Cook.

3. In our opinion the Council cannot lawfully exclude any streets from the map—which is expressly required to show "all the streets and private streets with the levels thereof as the same area or are intended to be or will require to be constructed."

Smith. Anderson & Co.

3. I think the map should show (as Section 190 requires in express terms) "all the streets and private streets" in the Borough; and if the Council contemplates any alterations in any of the street levels, the map should make this plain.

James Macasset.

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B. C. Haggitt.

3. The map must show all the streets in the Borough. The map should shew the levels of the streets as the same area or are intended to be, and the Council has no power to exclude any streets.

W. Downie Stewart.

4. I think so; because the Council are not at liberty to alter the level of streets already formed, without paying for damages; and this seems clear from the language of Section 192, which says "until such map is made the Council may at any time fix the level of any street * * "not theretofore constructed," subject, &c.

George Cook.

4. In our opinion, the fact of the map not having been prepared does not affect legal rights or obligations so far as those streets are concerned which are "permanently constructed," which we take to mean not only formed, but metalled and finished for traffic, in the ordinary way. The Legislature having in effect commanded a map to be made forthwith shewing the levels of such streets, a Court of Law would, in our opinion, consider what was so commanded to be done, as done for the purpose of ascertaining legal rights and responsibilities in connection therewith. Assuming that a street merely formed but not metalled does not come under the denomination of streets "permanently constructed" (a point not entirely free from doubt) we are of opinion that the Council would not be liable for any alteration of the level of any merely formed street before its level has been fixed by being shown in the required map.

Smith, Anderson & Co.

4. This question is not free from difficulty, but I am inclined to think that, until the Council fixes the street level, there is no liability page 11 in respect of an alteration in the street of which the owner of a house or building could complain. It will be observed, however, that by-Section 198 the fixing of a level by the Council is apparently assumed to be a condition necessarily precedent to the liability to the owner of a house or building under that section.

James Macassey.

4. I think not. It will be the duty of any person desiring to build before the map is made, to apply to the Council. If the street is not constructed to fix the levels under the powers of Section 192, or if the street is apparently constructed to furnish him with the permanent levels, or if he desires to be quite safe, he must compel the Council by Mandamus to cause the map to be made.

B. C. Haggitt.

4. Any person building before a map had been prepared would do so at his own risk. I have stated in answer 2 the remedy of such a person; indeed, Section 191 pre-supposes the existence of a map. The words "all buildings erected" mean all buildings to be erected, and such buildings must be constructed with reference to the levels shewn on the map.

W. Downie Stewart.

5. I think not, for the reason given in my answer to the preceding question. I do not see how any alteration can be made, beyond such as is indicated in my answer to the first question, without paying compensation.

George Cook.

5. In our opinion the Council cannot alter the level of Loudon street under Section 192, because that section applies only to streets "not theretofore constructed." We do not see any way of effecting an alteration of level in such .streets as London street, without liability to composition Section 191 expressly entitles owners of lands or buildings fronting streets the level of which the Council shall alter after the same has been fixed as by the Act provided—and, as before stated, we consider that the level of all streets "permanently constructed" at the time the Act came into operation has virtually been fixed by the requirements of the 190th Section.

Smith, Anderson & Co.

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5. Section 192 seems to me scarcely applicable to such a case as that put. The clause applies only where the Council is about to fix the level of a street "not theretofore constructed." Of course it is not easy to say what the meaning of this phrase is, or what the power of the Council would be in the case of a partially constructed street. I am rather inclined to think that the safer method of proceeding would be to define a level on the map, as that which it is intended to adopt for permanent construction, and then proceed by Special Order. The Act does not, so far as I can see, absolutely bind the Council to existing street levels. The compilation of the map enables the Council to adopt a future as well as an existing level, and it is only when the choice of a level has been once made that there can be a liability to the house-owner for an injury to his property by an interference with the street level.

James Macassey.

5. I think not. My reasons are fully stated in answer No. 1. I do not consider London street as a street "not constructed," and Section 192 is not, in my opinion, applicable.

B. C. Haggitt.

5. Section 192 applies to streets not constructed. It appears to me that one portion of a street may be held to be constructed and the rest may be in a natural or unformed state. Whether a street, or only a portion thereof, has been constructed within the meaning of the Act, is a question of fact. I think, however, that London street would not come within the provisions of Section 192. The Council may alter the level of a street without giving compensation at any time before the level is permanently fixed and shown on the plan. Section 194 assumes the right of the Council to do so, and it is only in case the level is altered after having been fixed and shewn on the map "as herein provided" (Section 190) that compensation for the actual damage is claimable. The Supreme Court would, I think, on the application of any person affected by an alteration in the level before the map had been prepared, compel the Council to have the plan prepared with all reasonable despatch, and would probably grant an injunction restraining the Council from proceeding further with the works making an alteration in the level until the map had been prepared. Reading Sections 190, 191, and 194 together, I think that until a map has been prepared the levels cannot be held as fixed so as to entitle third persons to compensation for damage arising from alteration in the present levels.

W. Downie Stewart.

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6. I have already said that the Council cannot, without paying compensation, alter the level of any street wholly formed, except as mentioned in answer No. 1.

As to any street only partially formed, that is, in the language of Section 192, "not theretofore constructed," they can fix the level but not alter it when once fixed, without paying compensation.

George Cook.

6. Section 192 does not, in our opinion, touch the question of alteration of levels. It only deals with fixing (for the first time as we understand it) the levels of unconstructed or unformed streets.

Smith, Anderson & Co.

6. For the reasons given in the last answer, I think not.

James Macassey.

6. Already answered in answer to No. 1.

B. C. Haggitt.

6. It could not have been intended by Section 193 to give the Council an arbitrary power to omit streets from the map, otherwise the provisions of Section 190, which are explicit, might be neutralised. The terms of Section 193, relating to a street not shown on the map, refer to a street which could not be shown thereon. For example: to a street made after the preparation of the plan. I am not aware of any English case bearing directly on the question submitted for my opinion, but there are several American cases applicable. In the case of Simmons v. The City of Camden, VII. Am., 620, it was held that an action would not lie against the Corporation for damage to the plaintiffs premises resulting from the exercise of a right to grade the streets, there being no want of skill or care alleged. This, however, was a case of consequential damage. In the City of Dixon v. Baker, 16 Am., 591, it was decided that a Corporation was liable for damages caused by the elevation of the grade of a street, by which surface water flowed into the basement of the plaintiffs buildings and cracked the walls: and further, that a Corporation is bound to use reasonable care in the construction of its sewers. This was a case of actual damage, but it also decides that the plaintiff could not recover for inconvenience caused page 14 to his tenants. There are several other American authorities which will be found in a Note to a case cited in 7 Amer., p. 260. In Victoria it was decided in Lavezzola v. Daylesford, 1 H H. & A'B., Equity, 113, that a City Council is not bound to fix the level of a street not already levelled and paved. In this case an interlocutory injunction had been granted but was dissolved. This case was decided under the Victorian Statute.

W. Downie Stewart.

7. Clearly not. "A new street," in the language of Section 193, means any street not set forth in the map; but the map, when made, is to contain all the existing streets within the Borough, so that any street, which ought to be set forth in the map cannot be regarded as a new street.

George Cook.

7. In our opinion, Section 193 assumes the map required by Section 190 to have come into existence, and must be construed accordingly. Therefore, no streets, which ought to be set forth in that map, and which have buildings fronting them can, in our opinion, be deemed "new" within the meaning of Section 193; and those only are to be regarded as "new" which either are not now in existence, or which, having been in existence at the time the Act came into operation, have as yet, no buildings fronting thereon.

Smith, Anderson & Co.

7. Section 193 seems quite inapplicable. The map when compiled is to show all the then existing streets. A new street will bo one not appearing on the map. Places like the reclaimed land suggest a scope for the operation of Section 193.

James Macassey.

7. No. It would be an absurdity to hold that a street which has been formed and metalled and kerbed and channelled, and fronting upon which extensive and valuable buildings have been erected—as Princes street, for instance—is a new street, simply because the Council have failed to get a map prepared, or to show the street upon such a map if prepared.

I regard as new streets at present, only such public streets as have not buildings fronting upon them.

B. C. Haggitt.

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8. Wherever the level has been fixed, whether before or after the making of the map, and such level is afterwards altered, the Council will be liable to pay compensation, whether the street be formed or unformed, because people building are guided by the level that has been fixed, whether the street is formed or not.

Generally.—The Act appears only to give compensation for damage caused by the alteration of levels after they have been fixed, and not for any damage arising from the exercise of the powers conferred by Section 185 of the Act. It appears to me that if any damage is caused by the exercise of these powers, the Corporation would be liable to an action. If the powers can be exercised without destroying or greatly injuring people's property, of course no difficulty will arise; but, according to my view of the law, they confer no authority to destroy or injure property. Baker v. St. Marylebone Vestry, 35 L.T., N.S., 129; Exch. Div., S.C., 24 W.R., 843.

Any compensation provided for by the Act, that is, for anything lawfully done under it, must be actionable damage, such as could be obtained in an action at law, if it were not for the compulsory powers given by the Act. New River Co. v. Johnson, 29 L.J. Mag., cap. 93; and Hall v. The Mayor &c. of Bristol, 36 L.J., C.P.., 110; and such compensation can only be recovered in the manner pointed out by the Act. Anything in excess of the powers of the Act must be enforced by an action.

George Cook.

8. As before stated, the non-preparation of the map required by Section 190, does not, in our opinion, affect legal rights as to the levels of streets "permanently constructed" at the time of the Act coming into operation as to Dunedin, the level of such streets being, in our opinion, virtually fixed by Section 190. There is, in our opinion, some doubt, however, as to whether streets which had been formed, but not metalled and completed at the time of the Act coming into operation, ought not to be included in the category of streets, the levels of which are also virtually fixed by Section 190. It depends on the meaning assigned to the expression "permanently constructed," If mere formation amounts to that, then, in our opinion, the levels of streets merely formed, at the time of the Act coming into operation must be deemed to have been fixed, and the Council would be liable to make compensation for any damage done by alteration of level. But if the expression means (as we are inclined to think it does) not only formed, but metalled and completed for traffic, the Council would not be liable.

Smith, Anderson & Co.

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8. This has been practically answered in reply to query No. 6. I am inclined to think that there will be no liability in respect of an alteration in a street until the level has been once "fixed," and it is contemplated that the map still indicates the ultimate level. I do not however, see anything to prevent the City Council altering a street level by a special order before the completion of the map; and for such an act the Corporation would not, I think, be liable in damages, unless the act was oppressive, and a plain abuse of the Council's authority.

James Macassey.

8. I have already answered this question under answer No. 1. The Council will not be liable to pay compensation under Section 194, because, until the levels have been once fixed under the Act, that Section does not apply; but having, as I conceive, no power to alter the existing levels, the Corporation will be liable to an action at the suit of any owner of property fronting on a street, for the damage sustained by him by reason of any alteration illegally made in the levels.

B. C. Haggitt.