1. The plaintiff in this suit was a Zamindar who King, J. owned the villages of Bellampudi and Pedapudi in the East Godavari District. In those villages are certain 'puntas' or village tracks, and in 1923 the Taluk Board of Rajahmundry sold certain trees growing on those puntas and sold the usufruct of certain other trees so growing for a sum of Rs. 146-14-0. In 1926 the Zamindar, claiming title in the trees in himself, brought this suit to recover that sum from the Taluk Board, and for a declaration and perpetual injunction. Both the Courts below have dismissed his suit.
2. Though this was contested originally by the Zamindar it is common ground in this appeal that the 'puntas' in question are 'public roads' within the meaning of Section 60 of the Local Boards Act, and that they therefore vested in the Taluk Board under the provisions of that section. But the trees growing upon a public road are nowhere specifically vested in the Board, and what we have to decide is whether the effect of the vesting under Section 60 is to confer ownership of such trees upon the Board.
3. The only section of the Local Boards Act itself which is of assistance in this matter would seem to be Section 163-A, an additional section enacted in 1930. Sub-Section (2) of that section runs as follows:
No person shall fell, remove, destroy, lop or strip bark or leaves from or otherwise damage any tree vesting in or belonging to a Local Board and growing on any such public road or property except with the previous permission of the President of the Local Board and on such conditions as the President may impose.
4. It might be argued that if the mere existence of a tree upon a public road or other property vested in a Local Board renders that tree in every sense the property of the Board this provision would have been differently drafted - but such an argument would not be conclusive, and we must proceed to discuss the matter on general principles and with reference to decided cases. And in doing so we must take it for granted in the absence of anything in the pleadings or evidence to the contrary that the trees in question were planted by neither party but were of spontaneous growth. The earliest cases to which reference has been made in discussing the general question of the nature and extent of the property in streets or roads created by statute in local authorities are from England. The first is Cover dale v. Charlton (1878) 4 Q.B.D. 104. It was there held that the local authority had such proprietary interest in a lane under Section 149 of the Public Health Act that it would lease the right of grazing the grass growing in that lane. In Wandsworth Board of Works v. United Telephone Co. (1884) 13 Q.B.D. 904 it was held that the vesting of a street in a local authority did not give that authority any right to prevent a Telephone Company from stretching a telephone wire across that street at a considerable height above its level. In. The Mayor of Tunbridge Wells v. Baird (1896) A.C. 34 it was held that an Urban authority in which a street vested by virtue of Section 149 of the Public Health Act was not thereby empowered to construct an underground lavatory beneath the street. In Municipal Council of Sydney v. Young (1898) A.C. 457 it was held by the Privy Council that where a certain portion of a public street vested in the Council was taken for the purpose of the construction of a tramway the Council had no such proprietary interest in the street as would entitle it to receive compensation. In Battersea Vestry v. County of London and Brush Provincial Electric Lighting Co. Ltd. (1899) 1 Ch. D. 474 it was held that though the Company had acted illegally in laying down its electric mains under streets vested in the vestry the rights of the vestry were not thereby permanently infringed, as it had no property in the soil of the street at the depth (which happened to be only two feet) at which the mains were Laid.
5. What then are the principles underlying these decisions? The decisions have all been very carefully considered by Bashyam Aiyangar, J. in S. Sundaram Aiyar v. The Municipal Council of Madura and the Secretary of State for India in Councils I.L.R.(1901) 25 Mad. 635 : 12 M.L.J. 37 and his view of them is very fairly represented by the head note which runs as follows:
When a street is vested in a Municipal Council, such vesting does not transfer to the Municipal authority the rights of the owner in the site or soil over which the street exists. It does not own the soil from the centre of the earth (and the air above it) usque ad coelum, but it has the exclusive right to manage and control the surface of the soil and so much of the soil below and of the space above the surface as is necessary to enable it to adequately maintain the street as a street. It has also a certain property in the soil of the street which would enable it as owner to bring a possessory action against trespessers.
6. We can see no reason not to accept this view, and in our own examination of the English authorities think that the true principle has been very clearly and very cogently Laid down by Lord Herschell in The Mayor of Tunbridge Wells v. Baird (1896) A.C. 434 in the following words:
My Lords, it seems to me that the vesting of the street vests in the Urban authority such property and such property only as is necessary for the control, protection and maintenance of the street as a highway for public use.
7. Now the validity of these principles and their applicability to Indian Statutes have not been attacked in any authority since Section Sundaram Aiyar v. The Municipal Council of Madura and the Secretary of State for India in Council I.L.R.(1901) 25 Mad. 635 : 12 M.L.J. 37. In Basaweswaraswami v. The Bellary Municipal Council : (1912)23MLJ479 Sadasiva Aiyar, J. expressed his regret that the complications of English law had been introduced into this Presidency through the judgment of Bashyam Aiyangar, J., but he also says that it is now too late to go back on these distinctions. There can be no question therefore that in this case the Taluk Board was not vested with full proprietary rights over the soil of the 'puntas'.
8. It is however argued for the Respondent that the decision in Coverdale v. Charlton (1878) 4 Q.B.D. 104 is directly applicable to this case, and that whatever may have been said in cases dealing with lavatories or telephone wires or encroachments by means of pials (as in the Madras cases) there is some proprietary right in a local body which must at least extend to the surface of a road and therefore to everything growing upon it. On the question of the right to pasturage Coverdale v. Charlton (1878) 4 Q.B.D. 104 has never been dissented from, and there is no logical distinction between grass and trees when both spring up spontaneously upon a road.
9. The case in Still-well v. New Windsor Corporation (1932) 2 Ch. 155 is relied upon in this connection. There the question was whether certain trees standing upon a public highway should be removed by order of the public authority, and it was held that Mrs. Stillwell who claimed to be the owner of the trees could not resist an order for their removal, as they amounted to a danger and an obstruction in the use of the highway. Certain incidental remarks in the judgment suggest that as the trees were part of the highway the property in the trees vested in the local authority, but the learned Judge is careful not to commit himself to saying that the local authority owns the trees for all purposes, and says he is not called upon to decide to whom the timber would belong when the trees were removed. The case is therefore of no direct assistance to the respondent in his present contention.
10. It seems to us that the Respondent here does not take the true view of the nature of the ownership of property in a road by a local authority. He is inclined to agree that the local authority possesses no absolute rights of ownership to the sky above the road or to minerals beneath it, but he contends that there still remains some absolute right to a limited cubic content of material represented by the surface and a reasonable thickness beneath it. No doubt this is true in the sense that no possible claim to exercise any complete right of property over such surface or material could ever be recognised in any other person so long as the road remains a road, but that the right of the local authority is not an absolute right of ownership is, we think, made quite clear by the Sydney decision where its claim to compensation as soon as the road ceases to be a road is negatived. We must repeat therefore, that the true principle is that enunciated by Lord Herschell. It is no mere question of the topographical limitations of height and depth. The limitations are those set by the scope of the functions and duties of the local authority in maintaining the road in proper condition. The property vested is 'such property and such property only as is necessary for the control, protection and maintenance of the street as a highway for public use'.
11. Applying then this principle to the present facts we can conceive of circumstances in which it might be necessary for the Taluk Board to cut down trees which obstructed the use of the 'puntas' or interfered with the safety of those using them, but we can conceive of no principle which requires that in order to preserve the 'puntas' as 'puntas' it is necessary for the Board to have full ownership of all trees and their usufruct. Both the Courts below leap lightly over the gap which separates right of control from full ownership. We cannot follow them in this, and must hold that the right to these trees lay in the Zamindar. There still however remains the question whether the Zamindar's right is now barred by limitation. This is the subject-matter of the third issue, and has been expressly left unconsidered by the lower appellate Court.
12. We must accordingly remand the suit to the lower appellate court for fresh disposal according to law after a finding has been duly given on this issue. Court-fee on the memorandum of Second Appeal to be refunded. Costs of Second Appeal to abide the result.