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ARBITRATION COURT AT KAIAPOI.

Monday, May 6,

[Before G. L. Hellish, Esq., KM ._. Messrs J. Calender and J.Clark, assessor,! KEETLEY V. THE GENERAL GOVERNMENT The further hearing of this case was ri> su tried yesterday.

Mr T. I. Joynt appeared for the claimant and Mr Maude for the Government.

The position of the case on the last hearing was that the case on both sides had closed and it only remained for counsel on each sido to address the Court.

Mr Maude eaid that he wished to re-ex. amine Mr Keetley relative to the morU gage.

Mr Joynt objected to this being done aa it had Dot the remotest connection -with'the case.

The Resident Magistrate here read an official letter from E. S. Willoocks, Esq Registrar in Lunacy, stating that by deeiro of the Crowu he certified that a mortgage for £100 existed on the property oftha claimant in favor of Mr Wood, a patient m the Sunnyside Asylum.

Mr Joynt—l must strongly deprecate the manner in which the Crown is conducting their case. Mr Maude has chosen to go behind my back, and obtain a document relative to a mortgage which has no right to be read here, and of which the Bench has no right to take cognisance. If this were before the Judge of the Supreme Court, his Honor would, I feel sure, administer a well deserved rebuke to the Registrar, and I feel certaia would never allow it to be read. After some further discussion between counsel, The Resident Magistrate said that ho desired to examine Mr Keetley ac regarded tho accounts. Mr Joynt said he had no objection to Mr Keetley being re-examined on the distinct understanding that the examination wae cou« fined to the question of tho accounts eolelj. They had adjudged at the last sitting for the accountant's evidence only; all other had been closed, and he should object to it being re-opened. The following additional evidencewas then taken :— Joseph Keetley, examined by the Bench— I consider that the alleged damage and falling off in my business resulted solely from the railway works, as shown by my accounts. No other blacksmith's business haa been established on that side of the river during the three years in which the depreciation is most marked. My business has not in the least! fallen off from compefcitition between myself and other agricultural implement makers. My business began to fall off from, the time that the men commenced to survey the line ; because I was told that the premises would have to be pulled down, and therefore I refused to take in work, as I did not know whether I should be able to finish it, and I might have had damages brought against mc. This was more particularly applicable to reaping machines. I have maao fifteen or sixteen reaping machines, and I had just commenced to take up this trade; again. I consider the profit on each machine to be £10 per machine. I have had to boy two machines myself because I could not get all them to make the machines. I met a man in Christchurch during last week, who told mc that he wonld like to have a machina from mc better than anyone else, and he also asked mc when I was going to recommenca making them again. By Mr Maude—The name of the person so speaking to mc was Mr Johnson. The, purchase and sale of the two machines referred to does not appear in my book. Thomas Brown Craig, examined by Mr Maude—l am a professional accountant. I have investigated the statement hi accounts put before mc, and rendered to the Court, and marked from Ato F. I Bare examined the documents produced, and tested their accuracy by the books. The figures in tho document handed in are in my handwriting, and are a true and correct statement of the position of the business. As to the statement marked A, the takings of 1867, tha amount of business done is £887 3s ; but the account does not show any cash sales. Had there been cash sales account for this year, taking the average of those years in which cash sales have been booked, the amount of cash sales would be £113 14s 7d ; making a total of £1000 11s 7d. As to the statement 8., the business for 1808, the business dono appears from the ledger to have been £1103 3s 3d. Taking the cash sales on the basis as before, they would amount to £141 8s Id, making a total of £1241 Us 6d. This differs from my statement, as there is ft earn of £81 5s 8d deducted for Anderson's account, which I have not so deducted. la Paper C, business of 1869, there appears a total sum from the ledger of £1112 18s6d ; and from the day-book, cash taken, £145, makings total of £1257 8s 6d, As shown by PapaJJ put in, there is a difference from mine, because £129 11s 2d has been deducted for castings to Anderson, which has not been done in mine. In Paper D, business for 1870, it shows busjness as per ledger, £1340 9s ail, while the day book shows £169 cash ifcakeq, deducting also tho sum of £36, which »P» pears twice over ; the amount of bwW-j 5 done is £1473 Oβ 3d, deducting £174 1.3s Hα. Anderson's account. Paper E, business lor year 1871, shows as per the ledger that W amount of business done waa £1? 8 and the cash sales, as per day book, **w 14s; making a total of *1481 I*s but there is £103 14s Mt™! ducted from the amount = on: of Anderson's account for castings. -" . divided the accounts into two heads,lH OB S sold and general work done. Jα PfWJ* , ' November, and December, 1871, there » • decrease of £49 in the item of pJongM# «" in general work of £7 0s Bd, , ** *«£ of £56 0s Bd, as compared "»(*#««» ponding three months of 1870. J» J"""* February, and March of 1871 *c teeuu* j done was as follows :-PlongH «« g' general work, £185 12s BeL &>™*V™S term of 1872 f-Plougbs, #79J»J ffij work, £268 10s. Wit?theexceptfonsI.h*« named, viz., the £30, and the omissm Anderson's account, the statements■ ""fJJJ* by mc and by Mr Lovell tally, ments handed in and marked are <*ff * By the Bench-It would almost be impoj Bible to arrive at auy statement of prew loss from the books ; it would «*Wg satisfactory. There is no capital Richard Ansley Hayter e»m«ed V Bench-The railway works,- tbafr wtwjr proach in proximity to Mr Keetley was begun upon the 7th November, Joseph Keetley, re-examined by the ■.&** There is no way I think by give the Bench an idea of the mc in my business. I have eared my from my business, and have bought a out of the profits of ray business. fectly satisfied with the profi teat ness, and am quite prepared to P»f mortgage on my property at any time «» is presented. . , fot MrMaVde, in addressing thei *»J^

T «*ttee-o* -these-railway-xom--10 what they considered claims. X these claims wore per- - Government could not cany out mit ted thc^ Ver TJey bad been told that the co«t £96,000 to Rangiora, and that line i«,d claims amounted to something like the tendciai" amount _ The present 20 P^Jmfor injury to trade and premises. had decided against him in so far The SSed the profits of business, but he all they had to do was with 51 f A He had looked very carefully c on Compensation," and all rWSd themselves on either side of case* »"distinction, one where land had v V f tlen and the other where it had not. doubted whether the Colonial 7 ♦ ♦/wiehed Mr Keetley's case at all. In A t?n 69 it was laid down that the Goverinnld take a road for railway purposes, n0T A the residents would have no claim for Smpensation at all. He merely mentioned S°?n chow that there was a strong doubt the statute touched Mr Keetcase at all. With respect ♦ the evidence, Mr Keetley merely •Jl evidence that he has lost his Si street frontage, which he valued at JSTthe damage, therefore, was admitted ftiV as the land was concerned. Stripped "t a meat deal of evidence in the case, it • r.ir resolved itself into the question what 31 the owner get for the land before the •iwav works were commenced, and what the value now, and the depreciation hp the amount to which the claimant *°Sd be entitled. The value of the proFz. aB a whole, he took it would be about SSn'and it would be better for the Govern«*nt to buy the whole property than to pay mm in compensation equal to the full \lne of the property. With regard to the lrTfldin-"* it had been attempted to be Thd that it would be necessary f remove the buildings, and totally -.arrange and rebuild, but on the part of the Sn it was contended that this was not at ' if necessary if the plan proposed by the r£>wn either by filling, or that proposed by «r Lock were carried out. Nor was it Sum that the building in which Mr Slev was residing was damaged, any than having a portion of the access cut j the CFown valued at £25 or £30 Sensation: and if allowed to be reSnged according to the plan proposed by mTLock the great difficulty would be reeved Then with regard to the loss of Si-ripe he contended that no evidence had KSnght forward to prove this Both I SLctb Wilson and Coutts, who had given ££* had stated that they • did S take away their business from S Mr Keetley on account of the rail- [ zL, bu t from other causes. If they turned I to ft e account rendered they would see that 1 thefallin" , off was in the sale of ploughs, I ~j tlie y -would not surely contend that the I zL o f ploughs had been damaged by the 1 raiiwaT embankment; indeed if the sale of I doughs had kept up to the average there I £ on fa have been a surplus in the months in- | dicated in the account instead of a deficit. j The evidence given showed that the filling 1 could he done and Mr Keetley placed in as -' good a business position for about £250. f Then there was the plan proposed by Mr H Triphook and Mr Lock, which was for reI arrangement without filling. There was no ;! material disagreement as to the value of the S nroperty which, he took it, was fixed at ?| eomewhere about £500. Mr Lock's 3 plan was set out most clearly in I his evidence, which really gave more 1 (superficial feet of buildings than there was I at present. The case narrowed itself to this, 1 that the witnesses for the Crown affirmed I that there needed only a partial reconstruc--1 tkra, whilst the witnesses on the other side I wre of opinion that a total rebuilding and 1 itooasirttction was necessary. He would 1 rish to impress upon the Bench theneces- * ety of reconsidering the question of awardjsgiompeneation as to land, and would also isk ftem in their award to state the amount H awarded to the land distinct from that to 2 property, as it was likely that the whole ■; of this part of the case if awarded for value would come under review in another "' \ way, and therefore it would be necessary in order to save unnecessary and prolonged litigation, to have the matter of the award made as explicit as possible. His Worship—We will of course do this, as 11 think both myself and the assessors are agreed that the grounds ofjdamage should be , defined quite distinct. The Court then adjourned for an hour.

<On resuming at 1.30 p.m., Mr Joynt proceeded to address the Court for the claimant. He said in offering a few remarks on the case, he would first allude to the opposition of the" Crown to the claim as out of proportion to the damage done. In the first place it was very striking that this objection 4ouia only now have been made. Had it teen stated that the opposition was made on grounds of public policy he could have understood it, but for Mr Maude on the part of the Government to stand up now, after

itoi9 years of waiting, and say that the claim waa exorbitant, and that was the reason the Government resisted it, was perfectly absurd. fi h Duly, 1870, Mr Keetley was required by f! the Government to send in his claim under I fiie Land Clauses Consolidation Act, and in

f§§ compliance therewith Mr Keetley sent in a M &&n in August, 1870, showing how his ft piopcrty would be injuriously affected, and ft tMtaiug £460, or £50 under the amount f ] ww claimed. To this there was no reply p m any notice taken of Mr Keetley in any nj> it was then open to the Governaat to have brought the claim to a very *, ¥cap conclusion either by arbitration or lz &ore a jury under the Land Clauses Conso>fl M&tion Act. Bafc what was done i Why '": tke Government shifted their line, and in r " ®& a wsy as to miss Mr Keetley's property, * ed left him, as he had told the Court, in a , st&te of suspense not knowing whether his tad'was required or not, and unable whilst r ' a that state of uncertainty to undertake : «Twtrk, until when ? Why, until a new {, was passed in 1871, and it was not until -~ ftathat any movement was made by the Sorenment. They did not say then that declaim was exorbitant, and ask that it B-tStteieconsidered, but they treated Mr Medey with the utmost contempt until the was driven to seek what remedy he in that Court, and it was not until *BBsßfii February, 1872, ormorethan a month j&r they had "commenced proceedings in |c Oomt that the Government offered in f& great compassion, the sum of £300. He *fcft*sk the Court if, in the face of these • right on the part of the Govern- , *at"to come here and say that their reason ' «fßßistiug the claim of Mr Keetley was, "■5 wag exorbitant. Surely, if it was i j*stttant. the Government would have -,S aplenty of time to have made a protest _" it; btlt tue J found that the General "I iT*™ l6ll * totally ignored Mr Keetley and -Ij estfoim, although sent in at their own re- % natil-he came into that Court and as- -| rights, and then they commenced I in their defence, as though they I "S* pleading for the most impecunious 4 JS** c contended that the treatment of £ r*jfey Ijy the Government, and their action > *|» conduct of the case was absurd and i beginning to end. Another " *i»ch he would desire to V te 5 came ' to tha . t ConTt . to as * 2 c <^ama g e done to "the claimant by |\?fcu*ray works, he yet expressed his C 8 whether they were eutitled, under ' te»°^ aial Act ' to recover one shilling, be- ~* %c if 1 "* Act S ave the Governor power xo *-"• e ? uWlc ,«>ads for railways, and pro- : " ,jz~t3at no compeasasion could be re- * the peisous living on the side. S«2* donbted that at all ; but this was •o&laijous case, because here a mau, fciS i^ lj ' had suffered loss and damage, been proved, and was therefore erto hi ß remedy ; while in the other "»ell * as a damage common to all. He -5 SsrtV?** , to the damage done to Mr - Vγ , 8 *""* : and bere lie would say that • Ci!^ 001 ' or Mr Maude acting for IJtetoTr kind enough to admit IteTf beea done, bat after it had Q;fTf? to exist. In fact they said then 7« * n 7« "w-as easily reparable, and had to do so wou 1 d no doubt have that they coald have put the '■al*?;^ 11 a better position than before.

-{-Mf-Joynttfaenproceeded tocomraepfrafrßomelength upon the various modes proposed by the Government to reinstate the premises of the plaintiff, contending that it was a matter of impossibility to place the plaintiff in as good a position as before.] He felt that the claim was one which would never have come before that Court if the Government had acted fairly and honorably by Mr Keetley in the matter. Bnt what did the Govern- | ment propose to do ? They proposed to give him a foundation of saud, or other loose material filled in to a depth of two or three feet, with a slope on each side to Fuller and Black streets, and this they thought was a very good foundation for the machinery of the claimant, and one with which he ought to be satisfied. The material of which they proposed to construct their foundation was peculiarly liable to scouring from the action of the rain, and Mr Thornton had said it would make a very good foundation whilst it was kept confined, but once admit the water or erosion, as he called it, and the foundation would melt away like a dream, and leave them, he supposed, on their natural foundation again. It was endeavored to be proved by the Crown that a 6teady dead weight going over it, such as an engine, would not affect it, but this was not what the foundation had to bear. He (Mr Joynt) had brought forward witnesses to prove that the constant vibration of machinery would render the foundations quite insecure. Then with regard to the question of the Fuller street frontage, Mr Lock, when he proposed that horses should come in and go out by that way, had forgotten that the yard would have to be cleared of all the spare ploughs, stock-in-trade, &c, but the Government came down in the coolest possible manner and asked them to remove their buildings without any compensation whatever. Mr Keetley had selected that land because it held a double frontage, and had arranged his buildings so as to utilise that double frontage, and so as to work machinery in and out of those premises. But the action of the Government had deprived Mr Keetley of the position he was in with regard to business adaptability to his trade; and deprived him of his frontage to Peraki street. The Government witnesses had said that though the improvements proposed were carried out, the Crown could not put Mr Keetley in the same position as regarded his Peraki street frontage that he was in before the works commenced; aud with regard to the buildings, they had the evidence of Messrs Lean and Powrie, that the proposed addition to the height of the brick building would be totally insecure. Then he came to the value put upon the land by the Crown, and here he must make a few remarks upon this part of the case. It was most ludicrous to note the value put upon the land and premises by the various witnesses, and the answers given forced him to believe that they knew nothing at all about it, but that they were just guessing at the value of the premises at the bidding of the Crown, and with a single eye to the grand total not being more than the £300 offered by the Government. [Mr Joynt then commented at some length on the evidence on this point.] With regard to the queetion of prospecti re damage he would quote the case of " Lee v. Milner," in which Lords Abinger and Wensleydale held that a claimant was entitled to prospective damage, and also to come again and again for recurring damage. The same principle was laid down in " Lloyd on Compensation," where it was held that prospective damage must be brought forward on the first claim. He would also contend that he had proved beyond dispute that Mr Keetley, whose name as a maker of ploughs was a household word in the Northern districts, had been injured in his trade. Mr Joynt then referred in strong terms to the clause respecting costs in the Act, and characterised it as one of the most oppressive and unjust he had ever met with, concluding by expressing a firm conviction that the assessors would give a verdict for his client for the full amount and costs. At the conclusion of the learned counsel's address, which lasted over two hours, the Bench intimated that they would give judgment on Monday next.

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Bibliographic details

ARBITRATION COURT AT KAIAPOI., Press, Volume XIX, Issue 2812, 7 May 1872

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ARBITRATION COURT AT KAIAPOI. Press, Volume XIX, Issue 2812, 7 May 1872

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