Cur. adv. wit.
( 75 )
20th July, 1897. Lawrie, AIC.J.—
la my opinion it is proved that the defendant has no right tothis land. He entered on it as a contractor under Tambayah’sexecutors, as such he cleared and planted it; he did not possess itas owner in his own right.
The superior right of the Crown to this land, which was forestless than ten years before action brought, is presumed, and thatright has been admitted by Tambayah’s exeoutor under whom thedefendant entered.
It appears to me that the defendant has no defence to the actionso far as it prays for declaration of title and ejectment. He cannotbe regarded as one who is entitled to compensation for havingimproved the land belonging to another, because he did not improveit of his own accord and with his own money, but on the instructionsand with the money of another on conditions embodied in a contract.It has been proved that the supposed owner who gave the contracthas no title, and that he is willing to yield possession. The con-tractor and planter under him has no independent position withregard to the plaintiff, the owner of the land. He must cede pos-session. He has not shown that, even as between him andTambayah’s executors, he has a right of lien or retention. Anymoney claims he may have, under the contract, against Tambayah’sexecutors are aot affected by this judgment.
Taking this view of the defendant’s position, I think it necessarilyfollows that he is not personally liable in damages to the Crownfor having felled the timber. His conduct in felling the trees waspart of his contract with Tambayah. It was approved by theGovernment officials, who aided the removal by granting permits.
* The land was cleared, under the mistaken belief that it was the blockwhich had been sold by the Crown to Tambayah ; under the samemistake the defendant planted it. He committed no Wrong to. theCrown for which he is liable in damages.
I need not consider whether the Crown could get damages againstTambayah’s executors, at whose instance the land was cleared.The Crown by this judgment gets possession of an estate of muchgreater value than the forest land as it~stood when Tambayah andthe defendant first began operations on it, and in my opinion nodamages have been sustained or are payable by any one.
I would set aside so much of the judgment as finds the defendantliable in Rs. 10,000 damages, and I would decree ejectment againstthe defendant.
1897.July 20.
Withers, J., I concur.