Supreme Court Dispute Over Closing Of Montgomery Terrace

Press, Volume XCVII, Issue 28701, 26 September 1958, Page 13

Supreme Court Dispute Over Closing Of Montgomery Terrace

Decision was reserved by Mr Justice Haslam when a dispute between the owners of two properties in Montgomery terrace was heard in the Supreme Court yesterday* The action arose from the closing of the road last November by one of the parties who claimed that part of the terrace was on his property. Henry Thomas Fuller (Mr P. T. Mahon) sought an injunction restraining Edward William George Lewthwaite from closing the road. Lewthwaite, who was represented by. Mr G. G. Parry, counterclaimed for an injunction preventing Fuller from using the portion of the road which he claimed was part of his property. Mr Mahon said that the proceedings arose from the defendant’s action last year in erecting a barricade across his portion of the roadway. He had removed it after a few days but earlier this year proposed to erect it again. On his undertaking not to replace the barricade no order had been made against him by the Court The plaintiff now moved for a permanent injunction to restrain Lewthwaite from closing the road again.

Montgomery terrace was just within the city boundary and up to the point where it crossed the defendant’s land it was dedicated as a public road. It continued from there as a private road through which the residents of the seven properties had rights of way.

The road was first formed in 1911 by a man named Cooksley who built the first house in the locality, said Mr Mahon. Cooksley had obtained permission from the then owner of Lewthwaite’s land (a man named Moore) to put through the road across a corner of his property. Moore had moved his fence line back across) the road. Cooksley had used the road until 1919 when he disposed of his property which was later subdivided into the present properties.

Until April 1, 1945, the whole area was in the Heathcote County but when the boundary was pushed back all the properties except Lewthwaite’s came into the city. It was this accidental circumstances which had caused the difficulty over the dedication of Montgomery terrace, Mr Mahon said.

From 1923 the road from Rapaki road to Lewthwaite’s property had been maintained by the Heathcote County and the Christchurch City Council. Resealing work had been carried out by the local bpdies up to private section of the road which was maintained at the expense of the residents. In 1948 Lewthwaite bought the property for subdivision purposes, said Mr Mahon. Later when his surveyor told him the road crossed his land the defendant advised the residents that they were' using his property unlawfully. Early last year he demanded that they pay for the right to use the land.

They refused, so he offered to give them the right of way over the property used if they would grant him right of access through their properties to a section he owned above the road, but this offer was also refused. Last November he barricaded the road at his boundary denying the residents of Montgomery terrace access. There was no other means of access to Rapaki road. Mr Mahon said that local bodies had statutory powers to take land for roadways and the county council decided to acquire the property. At the last minute, however. under pressure from an unknown source, the decision was rescinded.

As the residents concerned were city ratepayers with property totalling £29.000 the city council was asked to intervene. The situation could have been settled if the city council had come to a decision, but after 18 months of negotiation and discussion no answer could be obtained.

It seemed extraordinary to the plaintiff that the council, in a civic problem, had declined to take positive steps to help its own ratepayers, Mr Mahon said. The plaintiff had regarded the receipt of his rate demand recently with very mixed feelings. It was submitted that the land was a dedicated road and that the owners knew in 1912 that the road was being cut through their property. After withdrawing the fence line possession of the land west of the fence line had never been claimed.

Public expenditure on the land by the local bodies showed that they regarded it as part of Rapaki road and the evidence pointed to the land having been abandoned by the owners in 1912. Case for Defendant

Mr Parry said that it was open to question whether the work done by the local bodies on the roadway was carried out with public moneys. He submitted that the roadway was not used by the public as it was a cul-de-sac leading to private properties. Evidence showed that Montgomery terrace residents regarded the private nature of the road crossing their land with a good deal of jealousy.

Montgomery terrace proper was within the city boundary and could not now be dedicated as a public road, Mr Parry said. The small piece of land on the defendant’s property could not be dedicated because of the provisions of the Town Planning Act.

’ The road was of no interest to the public as it led nowhere and if anyone tried to use it, after crossing the defendant’s land they might be turned back by the residents.

The two elements necessary for any valid dedication were'the intention to dedicate and the acceptance of the dedication, Mr Parry submitted. In this case there was nd evidence of any intention by either of the two

owners to dedicate the land as a road.

When the fence was set back by the original owner it was merely

a friendly concession by one neighbour, to another. If there had been any licence to use the road it had been cancelled by a letter sent by the defendant to the residents last year, said counsel.

Decree Nisi Grated.—ln a reserved judgment on an undefended petition for divorce Mr Justice Adams yesterday granted a decree nisi to Virginia Marie Louise Rowley against Herbert Spencer Cotton Rowley on the ground of desertion.