SILVA v. FERNANDO et al

101-NLR-NLR-V-11-SILVA-v.-FERNANDO-et-al.pdf


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Present: Mr. Justice Wendt and Mr. Justice Grenier.
SILVA v. FERNANDO et al.
D. C., Kegalla, 2,359.
Crown grant—Reservation of right to mines, minerals, &c,—Waiver ofright—Rights of grantee—Action for value of plumbago dug from aland—Valuation of suit—Stamp duty.
Where the plaintiff complains of trespass byi the defendant on hisland and a wrongful digging and removal of plumbago, and claimsthe value of the plumbago so dug and removed, the value of thesuit must be regulated by the value of the land in dispute, whetherthe plaintiff in his plaint claims a declaration of title or not.
Where the Crown conveyed land to the plaintiff reserving toitself the right and title to “ the mines, minerals, gold, silver,copper, iron, tin, lead, and other metals, and the ores thereof in or
upon the said land,”and where, after the institution of an
action by the plaintiff against the defendant for the value ofplumbago wrongfully removed from the land, the Crown by letterwaived its rights to such plumbago,—
Held, that such waiver was valid, and entitled the plaintiff toclaim the value of the plumbago.
Judgment of the Full Court in D. C., Galle, 6,461,1 followed.
1S. C. Min. June 8, 1908.
1908.
November 13
cm')by.the defendant? – trim ah order oftbe District Judgepf Kagame (E. Sueter, B#q-). THe- Mote sufficiently appearin the judgment of Wendt J.
H. J. 0. Perafra (with him Bama), for the defendants, appellant?.
C. M. Fernando (with him Van Langehberg and H. Jqyewardene),for the plaintiff, respondent.
Cur. adv. vult.
November 18, 1008. Wendt J.—
This is an appeal from the Ailing of the District Judge oh twopreliminary points argued at the tried. When the -Court reassembledafter the midday adjournment, the petition of appeal was tendered,and the further progress of the trial was therefore stayed, defendantsbeing ordered to pay plaintiff’s cost of the day. The first point hasregard to the form of the action, and the second affects plaintiff'sright to the plumbago, in respect of which be claims- damages.
The plaint avers that by virtue of a deed of 1898 plaintiff became -owner of a parcel of land described in a plan' filed with the plaint;that defendants own lands lying to the north-west, north, andnorth-east of the said parcel; that defendants in October, 1904,opened on plaintiff’s said land a pit, out ?of which they took andappropriated large quantities of- plumbago; that thereafter, bymeans of underground tunnels driven from their own land, /thedefendants removed from plaintiff !s land and appropriated otheclarge quantities of plumbago; that the aggregate quantity soremoved was 750 tons of the value of about Bs. .225,000; thatplaintiff was ignorant of the encroachments until about April, 1906,upon which, with defendant’s- consent, he had the lands and pit andtunnels surveyed, and that defendants refused to-desist from furtherexcavations or to pay for the said plumbago, but still continue totake plumbago from plaintiff’s land at the rate of about 30 tons amonth. Plaintiff prayed that defendants be ordered to render anaccount of such plumbago, and to pay its value, .or, in the alternative,to pay Bs. 225,000,. together with a sum of Bs. 9,000 a month fromthe date of action, and that defendants be restrained by injunctionfrom further mining in plaintiff’s land.
The defendants in their answer admitted that their land andplaintiff’s adjoined, but pleaded-ignorance as to the boundaries andextent of plaintiff’s land, and put him to the proof thereof. Theyfurther denied that the alleged pit or tunnels were on plaintiff'sland, or that they had taken any plumbago from plaintiff’s land,and averred that the true boundary between the respective landswas a natural bank. They set out their' own title to the land lyingnorth of the bank, and averred prescriptive possession thereof forupwards of forty years. The answer further pleaded that inJuly, 1904, tiie lands had been surveyed at defendant’s instance inthe presenoe of an agent -of plaintiff, and the bank fixed as the
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true boundary; that plaintiff’s agent accepted that boundary, and 1908.consented to defendants mining to the north of it; that defendants November 13.on the faith of that acceptance and consent incurred great expense Wendt J.in preparing for such operations; and that plaintiff was now estoppedfrom questioning defendant’s right so to mine, and from claimingany damage as consequent on such mining. The defendants furtherpleaded that plaintiff was not entitled to any of the mines or mineralon the land claimed by him, because that land was sold by theCrown to his predecessor in title with an express reservation ofall mines and minerals, and plaintiff never had- any right to theplumbago now claimed by him.
At the trial plaintiff tendered an issue as to his title to the landdescribed in the plaint, which defendants objected to on the groundthat the action was not one to recover the land, but damages only.
The Court thereupon framed the issue in this form: ‘‘Whether theboundary as set out in plan 1,327 is the boundary of the landBogahahena, which defendants admit to be the property of theplaintiff?”—the Court’s reason being that this issue arose out of thepleadings, and was necessary to the determination of the case. Ofthe other issues framed, it is only necessary to mention No. 6,
“Whether the portion north of the wire fence shown by the dottedline in plan 1,^88 is the property of the defendants?; No. 9:
“Is plaintiff entitled to allege and prove title to the land to the northof the dotted line F G H in plan 1,288 in this action?;” and No. 10:
“Is plaintiff entitled to maintain this action for plumbago allegedto be removed from this land, in view of the fact that the Crowngrant, which is the foundation of his title, expressly reserves allrights to the minerals in the ground?” The Court decided issueNo. 9 in the affirmative, “because, though no prayer for declarationof title was made in the plaint, it was necessary to go into thequestion of the limits of the lands in order to decide the question ofdamages.” Issue No. 10 was determined in the affirmative, on theauthority of-a case, D. C., Galle, No. 5,4S1, decided by the SupremeCourt in appeal on February 24, 1905.
The first question for our determination, which I have alreadymentioned, resolves itself into a question whether the action hasbeen rightly valued. Defendants say that plantiff has stamped hisplaint as for the value of Rs. 225,000 (the value of the plumbagoalleged to have been taken and removed by defendants), whereashis claim really involves in addition the value of the land, which(say they) is 2£ or 3 millions of rupees, representing an additionalstamp duty for the plaint of some Rs. 756. The rules relative tothe valuing of actions are not very detailed nor very clear. Section40 of the Civil Procedure Code prescribes that the plaint shallcontain, a demand of the relief which the plaintiff claims, and ifplaintiff Seeks the recovery of money, must state the precise amount.
In an action for a specific chattel, or to establish, recover, or enforce
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1808.any right, status, orprivilege, orfor mesne profits, or for the amount
November is. t0 fee found due onaccounting,the plaint need only state approxi-
Wbnbt J. xnately the value of the chattel, right, status, or privilege, or theamount sued for.Section 46enacts that, where the “ relief'”
sought is undervalued, and the plaintiff, on being required by theCourt to correct the valuation within a time to be fixed by thbCourt, fails to do so, the plaint shall be rejected. This is to be donebefore the plaint is allowed to be filed. The Stamp Ordinance,No. 3 of 1890, Schedule B, Part II., prescribes stamp duty on actionsaccording to their value, but what it is that is to be appraised inorder to fix this value it does not specify. In the absence of suchstatement, I thinkwe oughtto appraise the “subject-matter,”
meaning thereby the thing (whether land, chattel, money, or interestin one of these, or right or status) which the Court in deciding theaction has to determine the ownership of, not merely ‘.‘relief” inthe sense of that which the plaint expressly asks for and tbe decreeexpressly grants. If, therefore, plaintiff says defendant trespassedon his land, and removed part of that land, to wit, plumbago worthRs. 10, and prays for judgment for the Rs. 10, and defendant saysthe land is his own, but the Court finds plaintiff is the owner, andgives him judgment for Rs. 10, in that case the subject-matterdealt with by the Court is not the Rs. 10 only, but the land inaddition; and if plaintiff had reason to suppose that defendant’s actwas done in assertion of a claim to the land, he ought to have stampedhis plaint according to the aggregate of the values of the land andof the plumbago. In the present case I have set out the substanceof the pleadings with some degree of fulness, because I think it isclear that defendants’ taking of the plumbago mentioned in theplaint was an act done in assertion of their own title, and denial ofplaintiff’s title, to the land from which they took it. Whetherplaintiff asked for a declaration of his title to that land or not heknew the decision of his action involved the determination of hisownership of that title, and he sought to have stamped his plaintaccordingly.
The second point, which is one raised by the 10th issue, arisesupon the construction of the Crown grant dated January 20, 1882,a copy of which was handed in by Mr. Van Langenberg at the argu-ment, and which was to the following effect: It witnessed that inconsideration of the payment of Rs. 1,100 the Sovereign granted andassigned unto one S. T. Muttiah, his heirs, &c., a certain allotmentof land, “to have and to hold the said premises with their and everyof their appurtenances unto the said S. T. Muttiah, his heirs andassigns, in free and common socage for ever, he and they yieldingand paying yearly and every year to our Governor of our Island ofCeylon, on behalf of us, our heirs and successors, a quit rent ofpeppercorn on the 1st day of January in each year, or so soon there-after as the same shall be demanded, and subject to the several
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provisos and reservations hereinafter declared and contained Con- 1908.
ceming the same; that is to say, provided always that the said land Nov«mb»i3.
shall be liable to such regulations as now exist, and as may hereafter Wekdt J.
be enaoted relative to landed property in general, and that it shall
at all times be lawful for us, our heirs and successors, or for any
person or persons acting in that behalf by our or their authority, to
resume or enter upon possession of any part of the said lands which
it may at any time by us, our heirs and successors, be deemed
necessary to resume for making and constructing such roads and
bridges as may be necessary for public purposes, or for the benefit
of the proprietors of other lands already purchased, or to he hereafter
purchased from us, our heirs and successors, in and upon the said
lands hereby granted and assigned, and provided also that it shall
at all times be lawful for us, our heirs and successors, or any person
or persons acting in that behalf by our or their authority, to cut,
search, dig for, and take away all such indigenous timber, stones,
cabook, and other materials the produce of the said lands, as may
be necessary or requisite for making and keeping the said roads and
bridges in repair, or for any other public work whatsoever. And
we do hereby also save and reserve to us, our heirs and successors,
all right and title to the mines, minerals, gold, silver, copper, iron,
tin, lead, and other metals, and the ores thereof in or upon the said
lands, together with full power of entry for the same respectively,
and all other powers and privileges necessary or requisite for the
building or constructing such roads or bridges as aforesaid, or for
the cutting procuring, and carrying away the timber, stones,
cabook, and other materials for .the purpose aforesaid, or for the
discovering or workingsuch mines,or procuring,smelting,and
carrying away the said gold, silver, copper, iron, tin, lead, and other
metals, or the ores thereof, or any minerals in or upon the said lands.
At an early stage of the case, when defendants moved to dissolvethe interim injunctionobtained byplaintiff, theobjectionnow
formulated in the 10th issue was put forward by defendants, andupon it the District Judge dismissed the whole action, and directedthat the Crown be “ notified of the attempt by these parties to dealwith plumbago, to which probably the Crown may have a claim.
The plaintiff appealed, and pending the appeal the District Judgereceived from the Assistant Government Agent at Kegalla a letterdated October 2, 1907, which he submitted to this Court for con-sideration upon the appeal. It stated that the “ Crown does notclaim the plumbago dug out of the land referred to, in terms of theGovernment Circular ofMay 16, 1901.” On December 2, 1907,the
plaintiff received fromthe ColonialSecretary, inanswer toan
application made by him, a letter stating that “ Government laysno claim to plumbago found in lands sold by it prior to 1901,anything in the wording of the Crown grant to the contrarynotwithstanding. ’ ’
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1908. On all the material facts the case is similar to the Galle case reliedNovember 13. upon in the Court below by the plaintiff (No. 5,481). There theWendt J. root °f the plaintiff’s title was a Crown grant dated 1878, containinga similar reservation of minerals, and .the complaint was thatdefendants had by tunnelling from their land removed and appro-priated plaintiff’s plumbago. Before Bonser C.J. and myself, onFebruary 6, 1902, counsel, in arguing defendants’ appeal- against ajudgment in favour of the plaintiffs, raised the contention that theplumbago had never belonged to plaintiffs, having been reserved tothe Crown by the grant. Respondents’ counsel saying that he wastaken by surprise, the hearing was adjourned for a fortnight.When it was resumed on February 24, after some discussion, it wasordered that the case be heard by another Bench. The Chief Justicehad then been appointed to the Judicial Committee of His Majesty’s..Privy Council, and considered it undesirable, in view of a possibleappeal to the Privy Council, to deal with the case. It next came,oh June 8, 1903, before Layard C.J. and my brother Grenier andmyself. Plaintiff’s counsel produced a letter from the GovernmentAgent, dated after action, disclaiming all – right to the plumbago onthe part of the Crown, and referred to the Circular of May 16, 1901.Appellant’s counsel, on the other hand, contended that the Crown’snow saying “We shall not assert our rights ’’ could not give plaintiffstitle as at the date of action (1899); and that even in the Circularthe Crown asserted its right to all minerals and offered to make agrant .to the grantee of the land. This Court held that plaintiffwas entitled to the plumbago, and, that point being settled, directed' the other questions involved in the appeal to be disposed of in theordinary way by a Bench of two Judges. Accordingly, thosequestions were argued on July 3, 1903, before Layard C.J. andmyself, and we, on July 16, 1903, set aside the' District Judge’sjudgment, and ordered a new trial of those other questions. Theonly minute of the Judges’ reasons for the decision of the Full Courton June 8, 1903, is in these words: “ The Crown makes no claim tothe plumbago. The case will now be listed before two Judges fordecision on the merits after argument. ’’ But in a case (D. C., Galle,No. 5,575) which involved 'the same question of construction of aCrown grant, and which was therefore set down for argument on thesame day as No. 5,481, I said on June 15, 1903, in delivering thejudgment of myself and my brother Middleton, as follows: “At theargument before .the Full Court of June 8, 1903, of the case 144 F,Galle, 5,481 (the case for the decision of which our final order on thisappeal stood over), the Court was informed that the Crown made noclaim to minerals reserved in its grants issued anterior to May, 1901,and thereupon .the Court held that the Crown grantee of land, or hisrepresentatives; . could recover damages from a trespasser in respectof plumbago:.wrongfully won and removed from the land.’’ Thataccords wim 'my own note made at the argument of case No. 5,481,June 8, 1903, the effect of which I have already given.
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We are bound by the Full Court decision in case No. 5,481; andmust hold that plaintiff’s claim for the value of Idle plumbago inquestion is sustainable.
The appeal will be dismissed. Upon receipt of the record theDistrict Judge will hold a summary inquiry as to the approximatevalue at the date of action of the strip of land included between thetwo lines suggested by plaintiff and defendants respectively as theline of demarcation between their lands, and will order the plaintiffand defendants within a specified time to affix further stamps totheir respective pleadings to cover the value so. determined. Thecosts of the hearing of August 7, 1908, in the Court below will becosts in the cause. There will be no costs of the appeal.
Grenier J.—I agree.
Appeal dismissed.
♦ms.
November IS.Wendt J.