1. This is a suit by the Receiver and owners of the premises No. 257 Upper Chitpore Road, to the south of which is Schaloh Street.
2. The Receiver has been discharged and his name was at the hearing struck out of the cause title.
3. The plaintiffs allege that Schalch Street as originally laid out is a public highway and that they, as persons owning land adjoining such highway, have a right of access to it from their land.
4. The right is claimed as a private right, for the obstruction of which an action will lie, not because the owners of the land have been injured as to the public right and have sustained special damage, but because of the infringement of the private right, which they have in addition to the right which they possess as members of the general public. They allege an obstruction of this alleged right by the Port Commissioners and sue for a declaration of their right of access for removal of the alleged obstruction and for damages.
5. Schalch Street, which was named after Mr. Sohalch, Chair- man of the Port Commissioners in 1874, is situated between Ahiritollah on the south and Bagbazar on the north.
6. It runs from the river bank at a point between these two places to Chitpore Road. On the river side Schalch Street opens out on to the Port Trust Railway on the other side of which and immediately adjoining the river is the wharf called Schaloh's wharf, which begins at Chitpore bridge and ends at Ahiritollah.
7. It appears from the proceedings of the Port Commissioners in the year 1871 (see Vol. II, p. 55) that in that year the question was considered of making a road round Calcutta by the river bank completing the circle which was then broken between Ahiritollah and Bagbazar. A road, which has been erroneously called Strand Bank Road, was then completed between these points. Subsequently the Port Trust Railway was laid along this road and the portion between the Railway and the Rivet was called Schalch's wharf. Toll is levied for all goods shipped or landed at Schalch's wharf, which, as I have stated, extends from Chitpore to Ahiritolla.
8. In 1874 (see Vol IV, p. 329 of the proceedings of the Port Commissioners) the further question was discussed of making a cross road connecting the new bank road with Chitpore Road, a good road being, it was stated, required to connect the former road with the main thoroughfares of the town and to facilitate traffic to the new wharf called Schalch's wharf.
9. Proceedings then took place in 1874 for the compulsory acquisition of land to carry out the scheme of the Port Commissioners to connect Chitpore road by a street now called Schalch's Street with Schalch's wharf.
10. These proceedings were under the Land Acquisition Act then in force, read with Section 38 of Bengal Act V of 1870 called the Port Commissioners' Act. By Section 5 of the latter Act the Commissioners are constituted a Corporation, and under Section 6 all property vested in the Commissioners is to be held in trust and to be applied firstly in payment of all moneys due to the Secretary of State and subject thereto upon trust for the purposes of that Act, and not otherwise.
11. Under Section 31 the Commissioners have power for the purposes of the Act to acquire property, and they have power to lease or sell property vested in or acquired by them, which is no longer required for the purposes of the Act, subject to this proviso that no such sale or other alienation or lease of any immoveable property for any estate or interest exceeding the term of 10 years is valid, unless the sanction of the Lieutenant-Governor of Bengal to such sale, alienation or lease shall be first had.
12. Then comes Section 38, which provides that, when the Commissioners are unable to acquire by agreement any land or building required for the purposes of this Act, the Lieutenant-Governor of Bengal may declare that the land or building is required for public purposes and may order proceedings to be taken for obtaining possession of the same for Government and for determining compensation to be paid to the parties interested according to any law in force for the acquisition of land for public purposes. Such land or building, when acquired, is to be conveyed to the Commissioners on their paying compensation awarded and all costs connected therewith.
13. I need not in this connection refer to the provisions of the present Port Act, III of 1890.
14. The Land Acquisition notification recited that 'Land is required to be taken by Government at the public expense for a public purpose, namely, for the construction of a road in Calcutta from the Chitpore Road up to the river Hooghly, &c;,' and that for the above purpose a strip of land measuring 850 feet long and 100 feet in breadth was required.
15. The award is dated the 15th December 1874. The land was acquired by the Secretary of State acting as trustee for and on behalf of the Port Commissioners at whose instance the land had been acquired. The Port Commissioners paid for the land and on the 25th March 1876 the Secretary or State conveyed to the Port Commissioners the land so acquired, which thenceforward was vested in them. The land was conveyed to them to hold it to the end and intent that it might be used for a public purpose only, viz. for the construction of a road and wharves or for any works to be constructed and carried out by the Port Commissioners under the provisions of Act V of 1870.
16. The conveyance, however, contained the following proviso: 'provided always that nothing in these presents contained shall prevent the said Commissioners and their successors from at any time selling and disposing of any surplus portion or portions of the said land and premises as may not be required by them for the purposes of: a road and wharves or for any words to be constructed and carried out by the said Commissioners under the provisions of the said Act V of 1870.'
17. As appears from the map (exhibit I) same portion of the land acquired was disposed of and the rest was laid out in a road, which, including two pathways on either side, was about 60 feet broad.
18. The road was completed early in 1875 and the evidence establishes that on the 25th December of that year His Majesty the King-Emperor, then Prince of Wales, drove through this street on his way to Chitpore Road. The evidence also establishes a general user by the public of the road and pathways on either side of it from the date when they were opened until the 4th June 1881. On that day the Port Commissioners in exercise of their powers of dealing with any land, which might not in their opinion be required for the purposes of the road, leased to the Calcutta Tramway Company a strip of land forming part of the northern portion of the street, including the northern pathways, for the. purposes of a Tramway terminus. This strip of land so leased to the Tramway Company abutted the plaintiff's premises.
19. The Receiver of the plaintiff's estate himself on the 25th August 1881 leased the plaintiff's premises adjoining this strip to the Tramway Company for (he better enjoyment of the land leased to that Company by the Port Commissioners. The lease was for 21 years running from the 10th October 1880. This was done tinder an order of Court dated the 20th May 1881. It would appear that the Receiver let the Tramway Company into possession before the execution of the lease, which was delayed until the negotiations between the Tramway Company and the Port Commissioners had been completed.
20. Whatever, if any, may be the effect of it, which is another question, the plaintiffs clearly acquiesced in what was done by the Port Commissioners. They leased their own land to the Tramway Company for the purposes of erecting stables and the Port Commissioners leased the adjoining strip for the purposes of a terminus. Subsequently the Tramway Company erected a shed over the strip of land leased to them by the Port Commissioners, to cover their cars, which used to stand on the land at night. They also erected a palisade on a portion of the strip adjoining the shed to prevent the access of the public to that portion of their ground.
21. From this date the strip of land ceased to be used as a highway, though passengers used, it is said, to mount the cars on a portion of it. Other strips of land on the same side of the road were leased out by the Port Commissioners to other persons, and in 1893 a portion of the land on the same site, which had formed part of the original acquisition, was sold.
22. The lease of the Port Commissioners to the Tramway Company was for a period of 10 years. After that term the Tramway Company continued to hold on for some time and then were given another lease for 10 years. The result therefore was that both the leases by the plaintiffs and the Port Commissioners were of equal duration.
23. The Tramway Company remained in possession until the 30th March 1903, when they left. Some time after this the Port Commissioners erected a fencing between the strip of land formerly leased by them to the Tramway Company and the land of the plaintiffs, thus preventing the ingress and egress to and from the plaintiff's premises to Schalch Street.
24. This is the obstruction complained of. The question is, whether the strip thus fenced off and which had formerly teen let to the Tramway Company is or is not a portion of a public highway. If it is, then the plaintiffs are entitled to access to it from their premises. If not, then it is land vested in the Port Commissioners, which they are entitled to fence and to deal with in future as they have done in the past in the case of the lease to the Tramway Company.
25. A public right of way may be created either by Act of the Legislature or by the dedication, express or presumed, by the owner of the land of a right of passage over it to the public at large. The plaintiffs base their case on both these titles..
26. Firstly they say that by virtue of the Statute and acquisition thereunder Schalch Street on such acquisition became a public highway. This contention is in my opinion clearly unsustainable. The land was doubtless acquired by Government for a public purpose, but the public purpose was under Section 38 of Act V of 1870, the purposes of that Act, viz., construction of a road forming an approach to the wharf: see Section 39, Clause 1 (6).
27. The land was acquired by the Secretary of State at the instance of and for the Port Commissioners and was on their paying for it conveyed to them by him, to be held by them as trustees for the public purpose, for which it had been acquired. On such conveyance the land became vested in them. No doubt the notification recited that land was required for a public purpose, viz. for construction of a road, but the declaration of a public purpose did not make the road a public road. The public purpose referred to were the purposes or one or more of them of the Fort Commissioners Act. In mentioning that the land was to be laid out in the construction of a road (not a public road) the notification merely stated one of the particular purposes, for which land might be acquired for a public purpose, as those words are to be understood in the last-mentioned Act.
28. The land was subsequently conveyed by Government to the Port Commissioners and not made over to the public. I am of opinion that the acquisition did not create any public statutory road.
29. Nextly it is said that, if that be so, the road was vested in the Port Commissioners and that they might and did dedicate it to the public.
30. In the first place, the Port Commissioners say that they have no power to make such a dedication. For the plaintiffs' reliance is placed on the case of the Grand Junction Canai Co. v. Petty (1838) 21 Q.B.D. 273 in which it was held that land acquired by a Company under an Act of Parliament for the purposes of their undertaking as specified by such Act may be dedicated by them as a public highway, if such use by the public be not incompatible with the objects prescribed by the Act.
31. It may be that the user of the land as a general highway is not inconsistent with its use as an approach to the wharf, but it is contended that under the provisions of their Act, the Port Commissioners held the land in trust merely for the purposes of the Act [see Section 6 Act V (B. C.) of 1870] and not otherwise; and that having regard to the limitations placed on their powers by Section 31 of that Act, they had no authority to dedicate.
32. It appears to me to be at least open to argument whether the Port Commissioners had, having regard to the terms of their Act, power to dedicate But it is not necessary to decide this point as I hold that, whether or not they had such a power to dedicate, they did not in fact do so.
33. In order to constitute a valid dedication to the public of a highway by the owner of the soil, it is clearly settled that there must be an intention to dedicate, there must be an animus dedicendi, of which the user by the public is evidence and no more. See Toole v. Huskinson (1843) 11 M.& W. 827, 830.
34. What, then, are the facts from which the inference of dedication is sought to be drawn.
35. It is perfectly clear to me that there could have been no dedication subsequent to the 4th June 1881, when the defendants leased the strip of land in suit to the Tramway Company. It has, however, been argued that the user for the purposes of the Tramway did not interfere with the alleged right of the public. The evidence establishes that it did. But apart from this the very fact of the lease itself, whatever may or may not have been the user to which the land itself was put afterwards directly and conclusively negatives any intention to dedicate. By the terms of the lease by the Port Commissioners to the Tramway Company, the former let to the latter the strip of land in suit containing an area of about 18 cottahs with all rights, privileges easements, etc., held or enjoyed therewith for the purpose that the land might be used as a terminus for the Tramway Company for keeping of cars and other rolling-stock or property of the like nature belonging to the Company and it was further agreed and declared that the Tramway Company might erect on. the land so leased to them such light buildings or sheds and might lay such lines and sidings as they might consider necessary for the purposes of their business.
36. The present case therefore is net at all similar to that which was put in argument, viz. the case where a Tramway Company is licensed to lay down lines along a public road and the road continues as a public road notwithstanding such license. Here the land itself was let to the Tramway Company, who became the owners of that land for and to the extent of the interest conferred on them by their lease. The land was let for the purposes of a Tramway terminus and for the keeping on it of the tramway ears and other rolling-stock.
37. The Tramway Company had permission to erect buildings on it, and they in fact did so and though the evidence is conflicting as to whether there was any wall or fence during the lease of the Tramway Company between the premises of the plaintiffs and the land let by the Port Commissioners to the Tramway Company, or whether there was, as has been alleged, a fence to the west enclosing the strip of land leased to the Tramway Company by the Port Commissioners, it is quite clear that there was a shed under which the cars stood, which was surrounded by a palisade on the south 6 feet high and that the occupation by the Tramway Company was an interruption of the previous public user.
38. Then, as I have already mentioned, other portions of the land were leased by the Port Commissioners to other persons and a portion of the land acquired for purposes of a road was sold out and out. The only question, which appears to me to be at all susceptible of argument, is as to the effect of the admitted user by the public between the date of the opening of the road in 1875 and the date of the lease to the Tramway Company in 1881.
39. If, as has been argued by learned Counsel for the plaintiffs, a dedication is to be presumed from the admitted enjoyment of the public of the land as a road before 1881, then on the principle 'once a highway always a highway,' nothing that was done subsequent to 1881 could affect the alleged public right.
40. But the question is, is it to be presumed that the Port Commissioners had dedicated the land to the public before 1881? That is a question of intention which is to be inferred from the particular facts proved in the case.
41. Now we start with the power vested in the Port Commissioners to deal with and to dispose of surplus land, that is land, which in their opinion is not required for purposes of the road, and we find that as early as 5th June 1871 (see proceedings of the Port Commissioners, Bk. II, p. 86) the Port Commissioners contemplated letting or selling portion of the land to the Tramways Company. They contemplated in fact then that which they eventually did in 1881.
42. In 1880 the Tramway Company were requested to state the terms upon which they were prepared to make an offer for the land (see proceedings, vol. XL, p. 425), On the 17th December 1880 the land was offered to the Tramway Company and in the following year it was leased to them. The Port Commissioners leased at other times other portions to other persons and sold also a portion. They altered the width of the road as they were entitled to do. All these facts in my opinion directly negative the existence of any intention on their part to dedicate to the public, and I hold that the strip of land in suit formerly in the occupation of the Tramway Company fenced off and lying between the plaintiffs' premises and the portion of Schalch Street now used as a road is vested in the Port Commissioners and is not a public highway.
43. It is unnecessary to determine anything as to the portion of Schalch Street lying outside that strip and outside the other portions already sold or leased and which appears according to the evidence to have been always used as a road by the public.
44. I dismiss the suit with costs.