Caldbeck, and H. I Hearn. the Com mittee of the Shanghsi Cricket Club "The proceedings began by a motion on the part of the Stewards of the Race Club against the Committee of the Cricket Club to restrain them from altering the roof. of the Club pavilion by raising it without the sanction of the Race Club Stewards being first obtained, T granted this motion to the extent of calling on the Cricket Club to show cause why within a specified time they should not be so restrained. Tt turned out, however, that the evidence, which I concluded had been given on oath, had not been in fact so given; and I therefore set aside the order which I then had made.
The motion was renewed—this on viva voce evidence duly taken on cath. That evidence was taken in the presence of the counsel of the Cricket Club, and, deeming it sufficient, I granted an interim in-Junction—ordering that it should be Served on the Trustees of the Recreation Fund, who it appeared where the lessors of the Cricket Club, in order that, if so advised; they'also might appear.
I did this on a well known principle that Courts of Equity always seek to get all the parties in any way interested in the subject matter of any application before them, before the Court, so that nothing that can by any "possibility affect the interests, is done behind their backs. The Recreation Fund and the Cricket Club both appeared counsel, the learned: counsel for the defendants, which I must not omit to notice—namely, that there was no "necessity" for such a proceeding as.the present application. ever, is a word of For many appli it may be often said there is no necessity—that the wrong complain.
is not one which it is immediately necessary to stop—in other words—ahen the wrong is done, the party has an adequate remedy in damages. Now, I imwhen used in legal proceed this kind. No man has say "perhaps T am doi wrong, but wait until it-the "doing—the continuance—the wilful barefaced continuance of the doing, constitutes the necessity of the interruption; and the answer is not—go on, and I will sue you for damages, but "stop, and don't put me under the necessity of sueing you for damages." The necessity for stopping the wrong at any stage of its progress is not to be measured by the possibility or probability recovering damages for its commission when completed, but by the persistence of the doer in spite of ition and warning. No one ght to injure another in person, reputation,-and property, and complain that he has not been allowed to all that he. intended to do, on the simple ground that when the injury was complete the remedy or compensation: was at hand.
In the ease before me, the Cricket pavilion, and it appears to me that the Race Club have a perfect right fore -the raising is completed, and the view obstructed, lot us show our ight t+ have it stopped. The "necessity" to my mind is to be judged by the defiant continuance of the work—not by the reckoning of the chanees of a remedy or compensation for it when completed. In fact, the learned counsel for the defendants, in his summing up, supplied the best proof of the neces for the steps taken by the plaintiffs. He said what is the good of what has been done—if even the injun tien is granted, there are 50. wa: of disobeying it or giving it the goby. 'The roof is on—whatever obstruction it may cause it has caused—the moment the injunction is granted the Cricket Club may change its Committee—the injunetion binding of. the present Committee will not be binding on the new one, and so on.' Now what can be more convincing proof of the necessity of instant action in like this, than this instead of waiting until the roof was half up, the Race Club had acted immediately, and applied immediately the old roof was off and the new one partially on, none of these arguments, could have been brought forward—the pavilion would have been without a roof—the view would not have effectually prevented any new or obstructive roof being put on by anybody.
"The history of the Recreation Fund, Race Club, Race Course and Cricket Club, is simply this, In 1860 some gentlemen subscribed to create a fund to buy ground, for games, They did buy ground and a cricket round was made on it, This ground ras subsequently sold. With a po tion of the money realized other ground was purchased in 1863, and the remainder f the money' was Tent to other institutions. A portion of this other ground was let to 'a cricket club, another portion to a baseball ground, an inner rim of land was allowed to be used, or at any rate was used, as a riding ground and training ground and another as a steeplechase cour The learned judge then goes on to say how in 1860 the old riding course was sold and the proceeds devoted to build a road between the Grand Stand and Bubbling Well Road. The legality of a toll bar was questioned, The road was ssu rendered to the Municipal Council jon the condition that that body should maintain it, In this way the Riding Course, its funds and subscribers disappear from history.
In the same year, 1800, a subscription list, was started to build a new Race Course, the old riding course ing hitherto been used as a Race Course; a certain capital was raised and' represented by shares,. ground was bought, and a Race Course made—and this is the present Race Course. The holders of the shares called themselves the Race Club proprietors and, having. built the Race Course, leased it to the Race Club on certain conditions, A cricket club had been formed in 1860, and the ball Club in 1865. Both these dabs leased from the Trustess of the Recreation Fund, portions of the ground purchased by the latter in 1803. "The Stewards. of the Race Club, who are also the Committee of Trustees. of the Race [Course proprietors, are the plaintiffs fu the present case.'
"They state that having fixed on the site for the Race Course, they were anxious to secure an uninterrupted view over the whole of the interior, and applied for, and obtained at the same time as they bought the ground for the Course, what is called a Bond, but which in reality an undertaking on the part of the owners of the interior the contemplated Race Cours in consideration of a sum of $1 a mow—amounting in the whole to $466—that they would not sell their land to anyone but the Race Club and that they would not build on it."
"About a year after the course was built the Race Club found that a straggling village in the interior of the course interfered with the view of the course and they bought the ground and pulled down the houses."
"The ground upon which these houses stood was taken possession of by the Trustees of the Recreation Fund when they in 1863 bought the remainder of the interior of the Race Course. The Race Club asserts that they had the right to use so much ground as was necessary for [Recreation Fund Trustees.
Created in 1800 by a subscription list, the money raised was employed in the purchase of a piece of land on the Maloo, on which a cricket ground was formed. And here follows mucic detailed information which we regret is too lengthy to publish.
The grounds upon which the Race Club based their application for a perpetual injunction as against the, Cricket Club for raising the roof of the pavilion erected on the Cricket. (Ground, ave briefly as fellows: They say that the reason of their determi nation in 1860, to bay a new Race Course, was that the old one ws [built over, that a view of the rac was interrupted by such buildings, jand that they desire to buy ground: from which they could get.an un~ interrupted view all round the jeourse, and they refer to the pro-/spectus on which subscriptions were, jerked for and oh-alyed.
Here follows the prospectus and Jeorrespondence which passed between the Race Club and the Cricket Club. The correspondences shows [that permission was granted to erect pavilion on the understanding that should be removed before ever race meeting, Permission was al granted to the Baseball Club but this building did not interfere with a view of the races, The Recreation Fund Trustess, [through their lessees, resisted the application of the Race Club on the grounds that "this is an impudent Jattempt to interfere with us. trustees of the public, in doing what we like with the land we have purchased and to impose burdens on it which do not attach, which we Ihave never heard of, and which will ruin the value of our land—will prevent us it or building on ft, and otherwise fulfilling our duties to the public as trustees of the Recreation Fund."
Here follows their defence in great detail.
The learned judge, in giving his reasons for gr perpetual says inter "The trustees did not to buy land to sell or build oF to. preserve always, as a site for a Jericket ground and other games of recreation. Thus the objects which each party had in view were realiz~ ed. The Race Club had a course surrounding an interior that could not be built on without their sanction, a right to had paid a compar The Recreation Fund trustees had that interior at a low price because they did not want either to build om it or sell it for speculative purposes, from doing either of which they were land are debarred by the terms of the Trust.
Ho also stated that it was clear that the Cricket Club, through.
Mr. Groom, "'as indeed everyone: else at the time, believed that the Race Club had at least a clear right of view over the interior of the Course, and therefore asked permission before they proceeded to do Janything which would interfere with or interrupt that view."
In conclusion, his Lordship said, "They (the trustees) are not properly trustees of any fund, but simply of a piece of ground which" they must preserve always—neither. sell, build, or speculate with. That piece of ground, so far as its extent £008, is to be employed for the purpose sot providing for games and. recreative purposes. The rent alone. that they can even take for such ground is only to be sufficient to keep such ground in order} and if the Club, oF members of the games, support and maintain in order that around, no rent can or ought to be demanded. "the object' of the parties to the doments must be looked at—their intention when the dos leuments were written—in order to. arrive at a true construction or understanding of what rights they were intended to confer......"
not believe it was over: intended [that they should be submitted to the keen' ferret vision of lawyers, but rather to the appreciation of unprofessional_men—gentlemen, who would be willing and able to take 'a broad literal view of that was really meant—of what those who. had gone before them had meant todo in the interests of the public..."
Text read from the printed page and cleaned; old type leaves the occasional error.