SUPREME COURT Historic Easement Ruled Obsolete

Press, Volume CVIII, Issue 31760, 17 August 1968, Page 21

SUPREME COURT Historic Easement Ruled Obsolete

An easement between seven parcels of land which a Christchurch pioneer, Alfred Richard Creyke, sold 110 years ago was ruled obsolete by Mr Justice Wilson in the Supreme Court yesterday.

He ordered that the rights of way of the owners of the land be extinguished. An application to have the rights of way extinguished had been filed by the owner of two of the seven parcels, C. Hunton, Ltd, and the owner of one parcel, Mrs Florence Ivy Ward, both represented by Mr A. K. Archer. The application was opposed by Ogilvie Garth Clifford (Mr P. H. T. Alpers), the owner of two parcels.

Another owner, Winifred Swire (Mr P. H. T. Alpers), consented to the application. The easements affected were rights of way over a

strip of land eight feet wide starting at Kilmore Street west and running at right angles southward for one chain and then at right angles westward for nearly two chains to the eastern boundary of a property now owned by Mr Clifford which fronts on to Cranmer Square. The easement was originally owned by Alfred Richard Creyke and was part of the original town section 271 of about one quarter of an acre acquired by Mr Creyke in 1852. The section was subdivided by Mr Creyke about 1859 into two lots of 3.9 perches each fronting Cranmer Square, five lots of about, five perches each fronting Kilmore Street west and the easement, the area of which is 5.6 perches.

Mr Clifford now owns the two lots fronting Cranmer Square, only one of which adjoins the easement The other five lots, all of which front Kilmore Street west and adjoin the easement, are owned by the first plaintiff, C.

Hunton, Ltd, the second plaintiff, Mrs Ward, and the first defendant, Miss Swire. The conveyance of each lot or lots contained a grant of ! right of way over the easet rnent. t His Honour said the evi- : dence showed that the owners ; of land fronting Kilmore i Street west had for many • years treated the part of the I easement abutting their land i as in fact part of their property. They had fenced it in or erected outbuildings on it so that exercise of' the right of way had become physically impossible. C. Hunton, Ltd, and Mrs Ward had applied for certificates of title to the parts of the easement they had occupied. In a reserved judgment his Honour said the real object of the application for a motion to extinguish the rights of way was that the Canterbury Education Board intended to lease a building to be built by the Australian Mutual Provident Society on land partly owned by the board and partly owned by C. Hunton, Ltd, and an adjoining part of the easement His Honour said it was not difficult to infer that C. Hunton, Ltd, proposed to sell its lots and the adjacent part of the easement to the A.M.P. Society if it could obtain title to part of the easement with i the right of way thereover extinguished. The extinguishing iof the easement was in fact essential to the project. Winifred Swire had filed consent to the order sought by C. Hunton, Ltd, and Mrs Ward and the contest at the hearing was between them and Mr Clifford.

His Honour said his duty was to compare the existing user of the dominant tenements with the user contemplated when the rights of way were granted nearly 110 years ago.

I He said the size of the individual lots seemed to point strongly to commercial user. Mr Clifford had supported this by recalling that there had been two shops on lots fronting Kilmore Street west. At present the user of the tenements was predominantly residential. His Honour concluded that there had been a substantial j change in the user of the ’dominant tenements. “I think the rights of way should be deemed obsolete for this reason. In my opinion they are no longer relevant to the circumstances of the user of the dominant tenements pre- ■ sently obtaining,” he said. “They are no longer exercised and have not been exercised for many years. They are in fact obsolete so common sense dictates that they ought to be deemed so.” His Honour said ha was satisfied that the easement had long ceased to have any

value because fences, buildings and other structures prevented its use by persons, beasts, or vehicles. “Even Mr Clifford’s property at the end of the easement has a coal box erected on it. He is the only owner opposing the making of an order. There has been nothing frivolous, vexatious, or unreasonable in Mr Clifford’s defence.” His Honour ordered that the plaintiffs pay Mr Clifford’s costs of $7O.