Hegarty v Ellis [1908] HCA 38

Hegarty v Ellis [1908] HCA 38

Land for which a Crown grant in fee simple was issued after 29 December 1884, though under licence and lease before that date, falls within the category of 'land alienated from the Crown in fee simple on or after 29 December 1884.' The plaintiff did not obtain the fee simple until after the critical date; hence, a licence to construct a water race over such land is lawfully granted by the Crown.

Parties
Appellant; Plaintiff: Patrick Hegarty; Respondent; Defendant: Samuel Ellis
Jurisdiction
Australia
Judgment Date
22 June 1908
Procedural Posture
Appeal From a Special Case Stated in an Action for a Declaration and Injunction / Final Appellate Judgment
Outcome
appeal dismissed
Legal Topics
Alienation of Crown Land, Water Race Licences, Mining on Private Land, Fee Simple, Licence and Lease
Property Law Mining Law Statutory Interpretation Alienation of Crown Land Water Race Licences Mining on Private Land Fee Simple Licence and Lease

Case Brief

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Parties

Patrick Hegarty

Appellant; Plaintiff

Samuel Ellis

Respondent; Defendant

Procedural Posture

Appeal From a Special Case Stated in an Action for a Declaration and Injunction / Final Appellate Judgment

Legal Issues

  1. 1 Whether land licensed and leased before 29 December 1884, but granted in fee simple after that date, is 'land alienated from the Crown in fee simple on or after 29 December 1884' under sec. 64 of the Mines Act 1890 (Vict.), as amended by sec. 44 of the Mines Act 1897 (Vict.)
  2. 2 Whether the licence issued to cut a water race was intra vires

Ratio Decidendi

Land for which a Crown grant in fee simple was issued after 29 December 1884, though under licence and lease before that date, falls within the category of 'land alienated from the Crown in fee simple on or after 29 December 1884.' The plaintiff did not obtain the fee simple until after the critical date; hence, a licence to construct a water race over such land is lawfully granted by the Crown.

Court Disposition

appeal dismissed

Orders

  • Appeal dismissed with costs.