AN INJUNCTION GRANTED.

Auckland Star, Volume LVII, Issue 205, 30 August 1926, Page 10

AN INJUNCTION GRANTED.

COAL FROM UNIVERSITY LAND.

MR. JUSTICE HERDMAN'S DECISION,

Reserved judgment in the matter of the Auckland University College Council (Mr. Prendergast), which sought an injunction against Richard Johnson, miner, Huntly (Mr. Luxford), was delivered by Mr. Justice Rerdman in the Supreme Court'this morning. The matter in dispute was whether or not the defendant was entitle.l to remove coal from property he had leased from the council. His Honor said: "In this action three questions are raised: The first is whether under the oirnimstanecs thi plaintiff is entitled to an injunction to restrain defendant, his agents, and servants, from winning, working, and removing coal from lands which form part of an endowment. The second is whether, in addition to an injunction, plaintiff should be awarded damages for injury done to its property, and what sum, if any, should be awarded to it by way of royalty upon coal won by defendant. The third and last question raised is whether under legislation that has been passed from time to time, defendant being the owner of a lease m perpetuity covering certain endowment lands, is entitled to acquire the freehold of these" lands. "Had No Right." "It is not disputed that defendant ha» been and is mining for coal upon the land comprised in the lease, and it is perfectly plain that his lease gives him no right to mine for coal. It is admitted by Mr. Luxford that defendant's lease gives no authority to work for minerals I have, therefore, to deal with a man who has done and is doing upon a piece of land which he has leased acts which neither his lease nor any other contract gives him a right to do. It is submitted that this is a case in which damages should be awarded in lieu of granting an injunction, and my attention has been called to certain circumstances as a justification for that contention. It is pointed out that defendant has spent a considerable cum in opening up the mine, erecting plant, and carrying on mining operations. It is said that this was done with the assent of the College Council. It is true that some negotiations took place between the College Council and Johnson about the granting of a concession to mine for coal, but it is beyond dispute that no arrangements were ever completed, and I think that the evidence establishes the fact that whatever John son did in the way of opening up a coal mine was done at his own risk.

"After a consideration of the relevant legislation, I am unable to declare that defendant ie entitled to acquire the fee simple of the land leased to him under the provisions relied upon by him in his counter claim. On the other hand, the plaintiff council is, in my judgment, entitled to the injunction prayed for and to an account of all coal won and removed by defendant from the land which he holds under lease. Plaintiff will also have costs as per scale as in an i.etion to recover £500."