STIPENDIARY MAGISTRATE'S COURT.

Akaroa Mail and Banks Peninsula Advertiser, Volume LIII, Issue 2770, 8 May 1903, Page 2

STIPE NDIARY MAGISTRATE'S COURT.

AKAROA. THURSDAY, MAY 7th, 1903. Before H. v\\ Bisuor, Esq., S.M,, and W. H. Hargreaves and G. Armstrong jun. Esq*., Js.P GATKS ON ROADS. W. I) McPhai', as attorney for Archibald McPhail v. Ak>roa an! Wainui Road Board Mr Joynt (.viih him Mr Williams) for compfoiniut, and Mr Beswick (with him Mr Orbell) for the Road Board. The complaint wao read and caeo opened by Mr Joynt. He submitted that the Road Bo'ird should be strictly neutral, as it was they were defending it in the interests of Mr Buuk'aadand not generally of the ratepayers. The gates were not swing gateß ac cording to the Ac., and the Road Board had no power to grant permission for the erect ion of thoso gatea and had no power to rr tain them, as not being gates within the meaning of the Act, they were illegal obstructions. Mr W. D. Wilkins, Civil Engineer, STPorn, said : I have been asked to survey the Mt. Boasu Road, in reference to three gatee on the road.,. The plan produced is mine and shows a section of the grades and the general construction of the gatep. (Plan described). By Mr B swick : 1 know the I eninsula. There are many gates on the roads. Beyond the gates there are three families, the Wright'. o , McPhail, atd Mr Black. I believe there are several gates on Mr McPhail's Li.tie River side of Ihe range. The gates swing ono.way, they ould not with such a gradient make the gate swing both ways. I think a double gtte better 'ban a swing gate on these roads. By the Beech : The gradient prevents tho gate swinging up. If a flit were made to let the gate swing both ways there would be a bad grade to start up again. By Mr Je.ynt : The gates in qutßtion are bad for ladies to go through. For the delenct", Mr Beswick contended it was the general custom of the Peninsula to have gates of this kind on the roads The sase arose from Mr Buckland asking permission to erect a gate which the Board had granted. A petition was then lodged which resulted in the present proceedings being taken, H. W. -Wilkin?, clerk to ihe Akaroa and Wainui Road Board, sworn, tain : No. 1 petition is again t the continuance of the lower gate, and No. 2 petition -gainst the two other gateß. Only two ratepayers living in Wainui Signed the first petition, and only two ratepayers in Wainui signed the second petition, The letter produced was Bent to the Board in Bupport ef the erection of the gate. All are resident in the neighbourhood but two, two live ne*r the road and four use it. There muet be 100 gate* on the road in the district.

By Mr Joynt: Tie letter produced was sent to thi Board by who is not a ratepayer in the district, but who uses the road.

John Robert Newton, Chairman of the Akaroa and Wainui Road Boird, sworn, said : I have been Chairman of the Road Board seven or eight years, and have practically lived here all my life. The Board is the whole watershed of the Harbour and a fourth more. Gates are used on many roads. 7 he petitions,were duly considered by the Board, and they considered the gates were not a public inconvenienoe. Tho gates are as convenient as the average gates on the Peninsula. They could be improved. It is more convenient to have the gateß in two parte, There are only four families living beyonl these gates. Mr Black uses the road, but not much as he has another ro?d to Lucas' Bay. The consequen«3 is the Mt. Bossu road is less used than it was fifteen or sixteen years ago. Two people are bene filed by the lower gate, Mr Bucklat d and Mr W. Mackay. Mr Archibald McFhai oljected to the corner ga'e, saying he had passed his word. I think he meant he had resolved there should never be a gate there. If a third gate we- c erected, he said, he would sweep the road clear of gates. The

removal of these gates would, in my opinion, be disastrous financially to many Peniuula residents.

By Mr Joynt: No evidence was taken in support or defence of tho petitions. The old rrcirds were burnt. I do not know if tlio Road Board paid (he owi.er years ago fcr fencing the road. Oue ga'e might be improved by altering the position cf the s;me. A ga'e mv t be un inconvenience on any road. There was a discujj ion oh the presentation of the first petition. A petition from Mr Spragge for the erection of a gate in the same place as the lower gate was refu'ed, I think, because of the meney said to haVe bieen paid for the fencing. I have been a member of the Board for twelve years. Messrs Checkley, Newbegin, Watkins and R. Pettigrew were the other members of ihe Board who dealt with the matter. I have a gate on the Light house Road which saves me li miles of fencing. Ido not know if any of the other members have gates en formed roads Did not send any special sp-c'fications to Mr Buckland when the gate was erected. Expected him to put up a convenient handy ga'e to the sathfac ion of the Board.

Robert LaAer, stock owner : Constantly travelled ov.r the Penirsula. Gates were eenera'ly used. It waa better for stock to be driven through unfenced land. Knew these gates, and do rot think they are any particular inconvenience. Tho road Is v ßed less than it was 10 or 15 years ago. Similar pates are erected at the Conway, through Flasbrmrne and elsewhere, of exactly the same kind as tbe gates under consideration. The gates in question are by far the most convenient fcr the public. The McPhail family have five or eeven gates on the Little River side. Ido not think the gites are bs good as those in question. The two upper gal,es were on the road wheie McPhail owned the property. By Mr Joyot: Do cot think ar_yor.e ever complained of Mr McPhail's gates. Both McDorald and I have used the read. Wi'di a loaded dray the gate at the waterfall is a slight inconvenience. They are no venienoe to driving bock if the driver h;;s good dogs. Mr Joynt: " But suppose he hasn't good dega ?"

Mr Latter: "Then he ihouidn't keep them." (Laughter). By the Bench : Mr McPhail said he objected btrongly to the Ic.wer gate. Mr Spraggo withdrew his application for the gate on my advice, ta 1 knew Mr A. Mc Phail'e strong objection. I have seen Miss McPhail riding through the gates easily without escort. Luke Wright, farmer : Knew the gates and did not think 'hen* any i> c">tvenience. Few people use the road, not maily as many as formerly. We cart all cur wool down this road, ride nr drive down. Am not directly interttte.', bit have gates on un formed roads. By Mr Joynt: My gates save me fencing. Have not seen recent swing gates. When I go up the road 1 stop, open the gates, and go through. The horses want a rest going up hill. I use a wheeled sledge on the road, brcausß my own road —before I go on the Mount Bossu Road—is too narrow for a dray. J. G. Black, sworn, said : I own 4000 acres at Island Bay. The gates on Mount Bossu Road are not more inconvenient than the usual pun of gates. There Is less traffic on the road now than a few years ago, before I took my wool via Lucas' Bay. By Mr Joynt : Have two gates on roads on my property—one saves fencing. I do not Ihink a lady would have any trouble in getting through these gates en a properly trained horee. Samuel Kingston, sworn, said : I know road and gateß. There is little traffic en the road. (Dhe only inconvenience in the gates is the time taken to open them. Would not object, to the continuance of the Have taken a team of eight bullocks, loaded with 80 sacks ef seed through gates. There are turns on the roads worse than the gates. Frank Shadholt, farnvr, Duvauchelle's, had used the Mt Bossu road on several

occasions during the past two years. All gates are inconveniences, but those in question were quite up to the average. William McKay, farmer, Wainui, had lived there since 1863, erected two of these galea 26 years ago. Owned the property now owi ed by Mr Buckland. gold it to Donald and A lick McPhail. The gates are still in the same position. The road is not used so much as formerly.

By Bench : I received money aB coirpen cation as owner of the land on which the gates are situated, do not know if it included money for fencing. Mr Jas Hay knowe about the matter. By Mr Joynt: There was an arbitration case between myself and the Board. I had a claim for eeverarce and land taken for road. I never saw the deed. The arbi trators were Mr James Hay for myself and Mr Roberts for the Road Board. The first award was for £400, but the deed was not signed. I wbb then awarded £300 which I duly received. I never caw the award, and do not know what it was for. I signed the money over Co the mortgagees, Garrick and Cowlishaw. The Road Board never cal crt on me to fence. Made no claim on the Board, but Bimply left it to the arbitrators to decide. The £300 was probably fo. laud taken and severance alone. I never saw the award and therefore bad no chance what ever of knowing. James Reid, member of County Council, residing at Wainui : Had no gates on formed rrads. Would cot complain of the gates in question. Had fenced roads to avoid gates Id would be difficult to fence Mt Bossu road For my own convenience would like to see all gates on roads abolished. John Newbegin, member of Board, de - posed : The gates entailed a short stop, but were not specially inconvenient. With regard to the new gate I occupied a neutra position. Albert Orme : Had known the road 20 years, and had been ovrr it four or five times with a reaper and binder in the hat few years. The gitea did not c .uee me an. speoial inconvenience. Joseph Turner: Knew Mt Bossu road. The gates took a few oeconds to open and shut, and you hardly noticed them. Owned land in which gates were which saved expense in forcing. M. A. JohnßGn had carted and driven stock on the ro'id. The gates are suitable for the place, and he had taken 100 head of cattle through himself

Mark Wright, farmer, Wainui, deposed : My property adjoins Mr Buckland's. The removal of the gate means 100 chains of feucing to us and the lob 3of water in hot summers I bought the land from my mother thirteen years ago Tha gates were then there The road suffer., from slips, and going through only entaih a little extra time. People driving stock can now teke a short route

By Mr Joynt: I do not think the gateß are inconvenient to stock drivers, as they can get their stock together The gates are more convenient to drivers than riders From ths bittom gate to the middle gate is 107 chains, and from the middle gate to top gate 74 chains J. C. Buckland said : The removal of the pate would entail 10 or 12 miles of fencing, and over 200 acres on the top would be cut off from the water. I met Mr MoFhail the ay after the gate was first put up, and told . im I would not let it cuw him any in'

convenience, would seldom keep tho gate cl«ed except at bußy seasons, and would then send a man to open He said it was not a matter of his personal irconv<nierce, but he had passed his word it should not, be erected He did not Bay-to whom For the complaint Mr Jopnt called the fal Ii wing evide: cc : —

I>. H, Le Cornte, farmer, B.rry's riay, de posed : Knew the gates aud travelled the roads frequently. The gates opened down hill. Three weeks ago he went up the road with his wife, and going through the upper gate the gig was nearly capsized with a block of wood. The gates would be an iuconVen ience to drivers of vehicles and stock, and would be dangerous for women to travel iv bad weather. The middle gate was the worst. You have to chock the w'uel at this gate. It would be difficult to get cattle off a run through. In some cases a lady might have to dismount to open agate. Buck land's gate was on clayey ground, and in a bad position. Mr Buckland's sheep were on the road last time I passed through. j By Mr Joynt: All the gites on any roid on the Peninsula 6hould be removed, Ido n»t know what expense that would entail.

Miss Ca'herine McPhail deposed ; I live at Island Bay, and use the Mount Bossu Road regularly twice a we k, going for the mail, and sometim<s use it six times a week. I know the gates and find them an mc oven ience, In the middle of November, reAirn ing from Wainui, a Btorm came en, und getting to Wright's gate, was detained arbour, the wind being bo strong I could not open the gate. I dismounted and mmaged to open the big gate, and getting through, the gate clammed and knocked me down senseless. When I recovered the horse wbb gone. I went after the hone, but was so hurt I could not mount him, and had to walk to Island Bay. About 15 months ago I was canter'ng alocg near where Mr Buck land's houso i» now, leading another when my horse fell over two co<<B on the road. About a fortnight ago, as I was going past the Pig Range, it was blowing, snowing and hailing, aud when I got to Wright's gate I could not open it, aud had to return to Wainui. On Bcveral other occasions I have been detained by not bein? able to open the gats. When landing another horse it is very difficult to mount again. Going through the .mail g.tes I have had parcels torn rff my Eaddle. I oft»-n have to carry parcels and 1 ad h res. I have been riding backwa ds aud fo.wards for the past 16 years and do not think tho accidents I had were caused by any want of skill.

Bj Mr Beswick : When tho gateß were my brother's I complained of them, and he promised to remove them. Have to go through five ga'es or. my l.'o'h'r's property, but have never had any trouble on the Island Bay side, It I had my way I woiPd hare all gates, whether private gates or not, removed The gates on the Little River eide are all a nuisance. Mr Buchar.an's gates, going to Little River, are single gates. W. D. McPhail deposed: I laid the fnformation in Mrs case for my father. [

live at Wainui, but often use the Mt Bossu Road, either riding or driving. If I drive I have to get out to open the gate. The Waterfall gate is the worst cf the three, but Wright's the wors. for wind. If a hor.e were not quiet, and were left at the Waterfall gate at night, it might go over the precipice. It is worse traveling in windy weather. Driving a loaded dray cne has !o fasten the gate bick I hva to send some oco ahead driving cattle or sheep to open the gates All gates on tha roads are an mc nvenience There was no person-! fttlicg in laying the complaiat, it was onl) a matter of convenience.

By Mr BeEwick : I nev. r complained myself The petitions were lodged in my father's time I asked the Le Bon's ratepayers to sign, because the Wainui people had signed Mr Bu.kland's petition If th<* other gates were removed my father would remove his He has not removed them becuise they were never complained of I thiuk a gate equally divided would be better than the one complained of, but I think a gate all in one would be bettor I hav•■ made it a practice sinca the third gate w-s erected to 20 up and leave the gates open aa I wanted to bring proceedings against him W. McGarry, labourer, Wainui, worki.tr for Mr A. McPhail : Had been working tn the Mt Bobbu road off and on for four ye.r. Had driven the sledge by himself, but wi h a heavy load of rvool had to have a secon 1 man with him to chock the wheels and open the gates The gates would be ve.y mc; 11 venient if I had to drive a heavy load 1 v mypelt I' it were not for the gite9 I shoul I not want another man Could take 12 bale, of wool by myself if it were not for the gates Met with a Blight accident at Wright's gate In wet weather we do nob take wool down The gates are a miisanc? to anyone, particularly to ladies on horse back, and I had to get off at Mr Wright's gate myeelf By Mr Beswick : Mr McPhail's gates arc easier to manage All gates are a nuisancj on roads H. Niblett, farmer, Island Bay, deposed • He had used the Mount Bossu Road for 22 years. The gates on the roads are always a nuisance. I bave to go through two gat< s on MPhoil's road, as well as the Mount Bossu gates The Mount Boesu gate 9 are 'he worst, and the Waterfall gate is the worst, of the lob. You cannot shut Wright's gate on horseback in windy weather. The snr w at this ga'.e Is sometimes three feet dee;*. Have had to lift this gate off its hingos twice to get through when it was blocked up with snow Could no. get one be st through the Waterfall gate at all and hf.d to excbange it, There is also diffi.ulty in getting sheep up through the gates and the road not being fenced

By Mr Beswick : I signed the petition for Mr Ppragge to get the gate, because he gave me some timber 1 told Mr Buckland the other two gates wanted alteration I should like to do away with all gates I had to borrow money to fence my land and want others to do tho same

Alexander Ihcmpßon, contractor and carter, said the gate at the Waterfall was on Btecp ground and difficult to cet through with horses not used to them It is difficult to drive teams up the hill without another man, because of the gateß It ia not a Bafe road for a r"ray or even a trap, because of the gites It is one of Ihe wor.l r ads on the Peuin;ula

By Mr Berwick : The bottom g*te is good enough, but ifc is another one to get through

John Archer, contractor, knew Mount Bossu Road, and the three gates on it Had found the Waterfall gate bad in travelling up to plough for Mr Wright. Took teams if three and four horses up the road. The Waterfall gate was \ery inconvenient, but the others were not. There were only two gates when I was driving two years ago.

By Mr Beswick . Did not tell Mr Mrokay I would not have signed tho petition if 1 had seen the lower gate before I did so Peter Bhadbolt deposed .* He had travelled Mount Bossu Road two years ago Tork teams over and found Waterfall g*to very bad The top gate was not so bad Went over alone with three horses. Stopped two chains from the Waterfall gate on level ground and did not chock the wheels. Driv ing stock, a man would have to go over be fore to open the gate By Mr Beswick : Did not say I signed the petition for fun Angus McPhail, farrmr, Islund Bay, drove itock on Mt Bosm road, and found the gate a great inconvenience, as he had to employ

• uothe. man to clear the road and open tie *ale Lost some sluep in trying to get •hrough the Waterfall eate It was also a nui.ai cc in d»iving stcck or driving cr ■iding Tho .m»ll gates were too narrow f>r a lady. Had bePD jammed him : elf get >'i> through the p.i'fs Tlie gates were ft very great inconvenience

By Mr Beswick : Went to Le Bon'a to get ratepayers'signatures because all the people in Wainui but three had signed Mr Buckland's petition Mf father told die not to ask Wainui ratopayers to sigh The Bench sad tbat they had been going over new ground, and tho mattfr was a very important one The main element was whether there bad been publ : c i- coaveniecco or not If a decision were anAerse to the Road Bosrd, he did not thii k the consequences would ba so -*ertnu. as had been stated, for it did cot at all follow that because these gates were condemned that every g-»te on the P.nmsuU need be abolished, for iome pates migl t be far more inconvenient than others The eViderdehad lee. 1 , hid clearly and fuMy before him by boh sides, so that he had had every oppor tunity of forming a true c timate of the case Had it been necessary he might hive given immediate judgment, but seeing tha 1 , in this mater there was no appeal from his decision, he cnn. i lered P- better to take further, time to consider Decisi n reserved INTERPLEADER CASH B. F. Lelievre v J. Donovan, In this case the bailiff had se'zed certain goods un der distress warrant, and owing, to a claim on the goods by F. S, Michell, the bailiff had iiEued an interpleader summons calling upon Michell to prove his claim togoodsand E F. Lelievre to contest same Mr Berwick appeared far the execution enditor, Mr X, F, Lelievre, and Mr Wil Mams for the cla-iran*-, Mr Michfll Thi-i cafe heard on Friday, March 6, before Justice', who had arrived at no de cisinn, wai reheard before the Magistrate The former evidence was repeated, after hearing which, ard also tha f , rf Mr Robin son, another witn«s**, Ihe Bench di«missed the interpleader on the ground that the receipt had not been registered, and was therefore void against the Bailiff