APPEAL COURT.

Dominion, Volume 1, Issue 25, 24 October 1907, Page 8

APPEAL COURT.

!/ STORY OF A CROWN GRANT. ;ir S : ' NATIVE CUSTOMS AND BRITISH LAW. . . .. j Their Honours tho Chief Justice • (Sir !* Robert Stout) and Justices^(Williams,..Den-' j nistori, Cooper, Chapmim|:iatftk Button V.'sat

this morning. ' '";' M: ' : ''' ,?S-,v '" -llesorved judgment wasJidoliyWed iiythq, case of Turia I'aki and •'otfiors'£jr;' I Kemietli; Finlayson,and another. , •.■<■?<,■■.'■•'.;.•.?■ This caso originally came,, before, Mr.-Jus-tice Cooper on Juno 3, ltlOr^when.'the tions of law stated for 'argument'were_:— (1), whether o upon the proper construction of a Crown grant a. joint, tenancy was created by it? (2) whatetfect'has'a' Crown grant issued without an anti-ve.sting clause to a number of natives, ono of, whom had died before tho Crown grant was issued, whore the limitations is to be named grantees, including the dead man and their heirs and assigns? . (3) ;>',whetlier:,:'under such' ; A : grant' issued to a number;of'riatives,;:one. of ■whom-, was the deceasedj'iit' the time of the' issue of the grant, the Nativo Land Court had power to appoint successors to the deceased nativo in respect of any interest in the land bo granted and subsequently-' to partition the land and to award a specific portion to such successors?" : .: Tho judgmentyof;His-Honour, which was now appealed from, was as follows: —(1) The land granted to tho five natives was held ■by them in joint tenancy as, from the date they became entitled'to the grant; '(2)' this question is answered by the answer to 1; (3) "the Nativo Land Court had . no power to award to Pakiripi's. successors any part 'of the block.ytbe %hole block having been conveyed in • November; ; 1868,' 'by the surviving joint tenants to Aitken. Plaintiffs could not, therefore, proceed with their action without attacking tho Crown grant,' •and for that purpose they must comply with the provisions'of the'" Titles Protection" Act, 1902." The Court.ordered.plaintiffs to pay

ten guineas costsand Court , fees. ■':•■':' Tho appeal was dismissed with costs on 'the highest scale, as on. a case from a distance. Justices Williams, Denniston, Chapman, and Cooper, affirmed the judg- , nient; and the Chief Justice dissented. .-' ; AFFIRMING JUDGMENTS. 1 Mr. Justice Williams who held > that' the

appeal must bo, dismissed, said that the question's argued before Mr. Justice Coopor were as follow:—(1) whether upon tho_ proper ■construction of the Crown grant a joint tenancy was created .among the parties therein named? (2) what:'elfect tho Crown grant had where ~6no of tho grantees had ■ died beforo ' the issue'of the grant? and (3) whether tho •Native Land Court- had power to appoint a successor to Pakiripi in respect of any interest of his in-the laiid: -inter .Mr. Justice Williams'stated: that it appoared ; that where land was hold under Native'custom there was no survivorship," and also that where land was so held by a number of per- ' sons it did not follow that they "held the land in equal shares. In consequenco of this; ■sections 12, 13, and 14 of the Native.Land Act, 1869,' were enacted._ These sections came under the consideration of the Court in the case of Karaitiana v. Sutton (3.C.A. : 129) '• decided . in 1875. .It. was there said: •V"The 'intention of these clauses is quite clear:, and tho intention has' been expressed by'not inapt words. The manifest intention .of the Legislature ;was-to repair a mistake *that had been made, in granting: land to natives as,joint tenants,;-and; giving' each' grantee an ; equal . interest,;-:tp-iameri'd!'the grants, and to makofs^ch"'amendment relate / back' to tho timo of the' issue of the, grants, 'so far as cduld bo done 'without /affecting '•■•■ tjid rights of p persons claiming by purchase frbrn Hie igrantces." Apart,,aftogctherv from the authority of Karaitiana"! y.'-Suttphj.the meaning of the sections was clear"'enough.. Tho grants, though in form grants.in joint tenancy, were to : be treated retrospectively' as grants in tenancy in common in undefined shares, except as ; regards, tho interests., of; persons who had, at the time of tho passing Act of 1869,; purchased-from-the gran- ' tees or the survivors of, them'.:, „ So.,far.: as . .the interests of such perspns were concerned, the grants wero to bo construed as if-they had been what thoy appeared on the face ,of them to be-yhamely, grants/in:joint.ton>ancy. ■ The offect'iof Ka'raitiana v. Sutton ' was to set at rest any.". ( doubts there , "might be as to titles derived: under such grants after 1865, and .priorvto".theipa'ssing,.ofntho. Act of 1869. At this distance of time, to place any other interpretation , upon the Act ..of" 1869, and so cast doubts on these titles, would be purelymischievous. Now if Pakiripi had died'eleven days later; on" the day after the date of tho grant, there could have been no doubt that tho-:-title of the defendants would have been 'protected by the Act of 1889. The only question was ■whether his dying, before that date made any difference. Now a grant to a dead man passed nothing unless there was' some statutory provision which gave'some prior, effect' to the grant. In the absence, therefore,, of any statutory provision, tho effect of the grant 1 would be to pass-from the..Crown to the other four grantees the legal estate in .the entirety of the land described. As tho grant was in form /a grant in'joiirUteriancyj'. ,- and as the defendants claimed under a , conveyance executed before tho Act of 1869 of the whole of the land included in the grant from the survivors of the grantees who. were then living, the legal estate of the entirety ' of the land described, would bo now vested in the defendants. It" was contended, however, that section 34 of the Crown Grants Act, 1866, gave to Pakiripi', and persons ...'claiming under him an^interest': which they would not otherwise have had, and further that, as' it ante-vested Pakiripi's interestj , his interest "iimo'to 'that of tho other grantees, and, therefore, as there was not a unity of time in the commencement of the //estate created by tho grant, an estate in-joint tenancy as between' '~' Pakiripi and the/'other grantees never camo into existence. In liis-opinion section .34 had no application. -The object of that section' was to place those.vwho claimed uhder-'ipqr-' sons entitled to grants, when the.-.-latter/died' •before the grant to them was issued,,'ii£ , .th6", same position as if the grant had .issued before the death ( of the named grantee/:' If a grant were .issued, to persons named as joint tenants, and one of them.ihad died before the dato : bf the grant without having severed the tenancy, there was nobody who could claim under him. As the-survivors of the persons named in tho grant had alienated their interests boforo .the Act of 1869, the present grant remained what it 'appeared on its face to bo —a grant to joint tenants. His Honour thought the first two questions must be answered as Mr. Justice Cooper had answered them, viz., that tho land was hold' by the natives in joint tenancy as from the date of the grant; and that the' third question must be answered in the negative. Tho ; predecessor in title of the defendants, by ; tho conveyance from the survivors, of tho grantees, acquired the legal estate, in feq . simple in the whole of the land described iii . the grant. He was entitled, as the Act of, 1869 recognised, in taking his conveyance to treat tho grant as what it appeared'to be —namely, a grant to joint tenants, and tho succession order to Pakiripi, made aftcr- ; - /wards in 1871, could only have been made by going behind the grant which' the Native Land Court had no power to do. In his : ' opinion, therefore, tho appeal must bo dismissed. Judges Dcnniston, Chapman, and Cooper : concurred. • / CLAIM FOR COMMISSION. i GUINNESS AND: LE CHEN v. QUINN; : The appellants in this case are auctioneers, ■ land agents, etc., at Timaru, and the re- ! spondeiit is a farmer at Makikiha.' : In. tlid Magistrate's. Court at Waimate, appellants \ obtained judgment against respondent for : £U5 65., licuiy commission on the sain of a ' farm. Appeal was made to the Supreme ;' Court, ami Mr. Justice Chapman, sitting in ' Christchurch, reversed tho Magistrate's de- \ cision. His Honour held that the evidence taken beforo tho Magistrate's Coijr'fr'showed :"•.'• that from the first the present respondent i . Qiiiun did not intend to pay commission. This being so, the onus was upon the present : appellant company to show that Quinn had : agreed to pay commission. The case could not be treated as one in which the work (lone •;|ioke for itself, or —as the Magistrate had

put it—as ono in which goods wore'sold and taken away under an implied promise that thoy would bo paid for. His Honour said tho work dono by Hume (appollants? salesman) was dono, as* was often tho'icaso,- under no actual agroomont that it should bo paid for, but in the hope that it' would,-result 'in a commission to tho company',. : arid';iri this caso without such a result being.; achievM*. ■:■; 'Ho came to this conclusion irrespective of -tlio suggestion that tho. prospecfr.-.of holding a displonishing salo alone-wortld bo •sufficient 'Hiduc'efeentVto a man in Hivirie's position to try arid bring about a salo:'; ; ■."■• ;.: . .-.The'Appeal Court now allowed/tho appeal, with;-cps'ts' on the lowest scilo, ;as ( on a caso •from' a distance, and ordered ;tl!at the judgraont.pf.Mib Magistrate bo rustorod; respon:dbnt'?als6 to pay ton guineasjcosts, and disb'ursemonts in tho Supremo Court. . .His Honour tho Chief Justice said he .thoughfVtliat the questions, raised by tho appeal .were questions of fact. They were:— (1) Was the appellant company appointed agent for the salo of the.respondent s farm or 'appointed to obtain a purchaser "for tho said farm? and (2) was it a term of ..tho employment that it was to be gratuitous? His Honour, after reviewing ■ tho ovidence, said that, in his opinion, if the-old authority to sell the property had lapsed, conversations in <which respondent himself; had taken, part, showed'that;ltliore was'air , renewal ,, of tho authority:- : In' pursuance 6t'such authority, tlio appellant found a purchaser of the farm at the price named by tho respondent— namely, £25 per acre. The offer from tho intending purchaser was: puc in writing and submitted to tho respondent.' He'refused it at first, but, later, suggested some slight and unimportant alterations, and then signed a contract of sale, dating this contract back to tho date of tho offer and keeping the appellant as agents. In his opinion, thoreforo, thero was ovidenco of agoricy;'and the. completion of the agency by: a purchaser being found for tho property at the price named. The next question was, Was this employment of,the appollant,to be gratuitous? . Respondent said he told Hume-shortly before tho sale that he wanted £25 per ticre net. Humo did not admit that the word " net" was

used. Assuming that it was used, it was 'doubtful; His, Honour .thought, if it could bo said to mean he was to pay, no commission. On that point thero was a conflict of evidoncoj and the Magistrate could have believed Hume. ' Regarding what took place at the time when the sale was completed, thero was also a conflict of evidence; It was clear, however., that nothing took placq at the interview which would doprive the appellant of the commission.; ;■•'•.; ■; ", , . • Justices Williams, Donniston, and Button wore s of -the same opinion. '■[. ,- ■ , ... > - Mr. Skerre'tt, K.C. (with him Mr. Hamilton), appeared for. appellant, and Mr. Ken-''nernoy-for respondent. i_' ■' x -.. DISSENTING JUDGMENT. . ; .-. His' Honour the Chief Justice said that on May 15, 1867, a Nativo named Palciripi was declared by. the. Native Land Court to bo entitled, with four others, to a certificate of title under,the Nativo Land Act, 1865, to a ■block of land in'the Whalngatei district, con- , taining '12,168 acres. /-In pursuance of the order of tho Court a certificate of titlo was issued. It was immaterial under what section of tho Nativo Land Ace, 1867, tho application for a grant was made. The certificate stated that..'the :fivQ,persgris named were owners "according'to Native custom," and it could not bo contended that that meant a joint tenancy. The. Native titlo w.as, and is, communal, antl joint tenancy or a survivorship under any circumstances was unknown to the Maori people. The rights of a deceased aboriginal, unless there was an

"ohaki "—a kind'of testamentary bequest— :went, according to Native custom, to' tho ",'', successors,"as they wehs-termed, that..'w(is, ;io jthe. lieirs,;■■ i'to' Native.. , , custom.'. •Tho- certificate was issued pn"Jifhe 25i 1867, and; .on Npyember 6, 1867, Pakiripi .died.., According ".■%&',Native.;'cust6mi'.;his' title -being still , a Maori'title, would vest in his successors, and , the Natiy.e.Land;.Court;'alone l had jurisdiction., to determine '.who ithe,successors' wero.i ' : On "November 16, v lS67i a Crown grant of"the block was; issued, tho grant being to the five Natives interested, their heirs.and assigns for ever. Tho;grant on its face purported to bo .under,; the-jNatiyo-liands, Acts. By a stupid .blunder tlicT. words;" in.', tho grant were the words ■',which, unexplained, were, by thq.Jaw, ,'df England■ : held ? tp.:Create.'''a-joint tenancy. .The Crown.grant, : if,construed as a grant or conveyance; irom Europeans to. Europeans, was construed, and if..;no outside.circum-stances-were-looked at, would bo held to give to.the.; Maoris a:title they never asked for, :'which; ; rhe'::ventured. to.say, they had never r heard of, and which they, would not, under•standj'i'so foreign'to; all iheir. , -ideas:..Svould it,, be that their ancestral, land was not to de"scendto their successors: . When this blunderjwhich was perpetuated in many grants, became tyiown, the Legislature stepped'in and passed Section 12"of tho Native Lands Act, 1569, which enacted: " In any grant heretofore or Thereafter to b"e maide, under; tho said Acts when .there is. more' than bnri v grantee, such grantees shall be, and shall be deemed, to have been'tenants in common, and not joint tenants, provided always, that this provision shall; not apply to .cases, in .which .the grantees or • the ■ survivors of.'.thojn shall .have already alienated the land comprised in their grant by absolute conveyance in fee simple, ■Or"'to such , 'part.'of -the" , land comprised' in such grant as they inay have so alienated." That provision gave no relief. to;the successors of Pakiripi, as three of the'grantees,* namely, Te Kau, fiepana,.and Paratene Taurua, who were at the time of alienation the only, survivors of the five grantees, executed a conveyance of the land on November 3, 186S—. that was before the 1869 Act was passed. There was, however, a provision in the Crown Grants Act, 1866, to which reference must -bennade. Section i 34. enacted: "Any. grahts;p'f; land, that havo been m. favour of the persons who. first'became legally entitled to receivo such grants, re;.spcctive;ly,:.'•although' such', person?;'have ! ' or. shall 'have'died , or transferred their interestprior'to the execution of such grants', shall and shall;bo.deemed to have boon and to bo ;of':th'e samerf bree •,and validity as though they liad.beeiv-or; slioiild'bo executed during thp ( 'lifetime'or.'b'eforp. the, transfer of the in.torest' of'.the porsoiv so.'originally entitled, provided that nothing ,in\this ..section con-tained.-shall operate upoiv.-.praffect tho preparation Crown grants of land to^derivativb■ purchasersJ'cjajifiing under con■tract.iwith the Now! Zealand Land Company." What effect (if any) had tlnVariti-vesting section on Palciripi's title? Didvhis successors succeed to his share of the.block? A grant similar in terms was y interpreted by the Court in Euraitiana y. Sutton, and it was held that the words in the grant created a 'joint tenancy, English rules and precedents 'boing followed, That case, though binding; was not conclusive in tho case beforo the Court. First, the olfcet of Section 3-1 of tho Crown Grants Act, 1866, was not beforo tho Court/ nor/'second,' wasthe Court invited to deal with the elFect of the communal titlo of the Natives, nor with Nativo custom, nor to receive evidence as to the status and position of the grantees to consider how they got. their title or grant..,. This, grant was under the Native Lands Act, arid -the Natives held a communal title and were-living a communal life, even, after the grants were issued. In the ca'sp ofvmercliants, though the grant was 'to two or more,' and in the form ot this grant, tho holders would be held tenants in common. Further, if the grantees did not hold in equal shares, the grantees were not joint tenants. Again, it had been held that parol evidence was admissible of surrounding circumstances, to prove an intention to hold in sevoralty. Evidence could easily bo obtained tliat no Maori ever contemplated joint tenancy, -andj. further, that in all cases tho, shares wore unequal. "Manii," position in.the tribe; genealogy, etc., all came in, when the Court had-to partition a block that may have been granted to persons jointly as in this grant. That tho ■estates-of ■••grantees under the Native Land 'Acts woro unequal wad recognised in the Na,tivo Land Act, 1369, which enacted (Section :14): "Tho estate .'.'or interest ;. of ; .each'-of several grantees, whether heretofore granted or hereafter to bo granted, shall not bo deemed to bo equal or of an equal value unless it shall be so stated in their grant, and every graiit shall contain,tlm'iioh'nition of the estato°or interest or proportion of interest in the land granted,'which..' shall be ■•■sot forth in : - the ceVtilicato •■ of title/' on which the same is founded, if ,Iny such is sot.forth,therein; provided that this provision shall not' apply to shares', estates, or interest already purchased from any such grantees, which, for tho purposes of such transaction, shall be deemed to hnvr bee:i equal." .That section, by 'declaring the es-

tates or interests were unequal, practically declared tho grantees were not joint tenants. The proviso would not affect this section, for it onjy provided that tho grantees who have aliened should bo deemed to have equal shares —that would bo in tho case that tho alionation would cither bo of three-fifths or of four-fifths of tho land. That section stood independently of section 12, and ho was of opinion that the proviso to section 12 would not prevent section 14 operating. Now none of these questions woro raised in Karaitiana ■v. Sutton, and it was, therefore; a matter for consideration whether, independently of ,'tho questions raised by the 34th section cf tho Crown Grants Act, 1866, the caso was conclusive of theso questions. Ho wan of opinion that neither the decision nor section 12 of the 1869 Act could prevent the successors of Pakiripi proving that the grant, 'though in form a grant in joint tenancy, was, in fact, a grant in tenancy in common. What, was tho olfect of section 34? It would not be contended that if Pakiripi had convoyed his share —whatever afterwards the Native Land Court may have held it to be —to his successors the conveyance would not h'avo operated as a good conveyance of his interest ami the joint tenancy so far as Pakiripi and the other four were concerned wou?<! havo been at an ond. The other four would havo ■.hold as-.joint tenants. Pakiripi could, therefore,- baw made his estate -v tenancy in common. ■•■' T>" Pakiripi had become bankrupt his estate would havo been that of a tenancy in common. Had his death the same effort as an alienation by him ? It surely could not bo suggested that the titles of the other grantecs-ante-vested at the date of his alienation. If ho aliened, the grant was to be deemed to have been executed before tha transfer. Did tho ante-vest the interests of those who had not transferred ? ( In . Irs opinion the'words of the/section were .not sufficient to give effect to this: If it was contended that tho section meant that tho frant for all purposes'and all estates was to e deemed dated the day before tho death ot the granteo, who died, or dato'l .tho day b* fore tho date of a transfer by a grantee who aliened; and that thus tho estates of others than' tb.oso who alien or die or ante-vested, it may'bi answered tln-t that was not expressed as tho intention "'" Ummsection.. The section was a remedfal one, and why should it be applied to create an estato in any per' son boyond what it expressly stated or what was required? It was not dealing with the cases of those who wore- alive -or ot those who not alienated; It purported to deal with the estates of those who had died or who had aliened. If it wero said that if the section was so construed as to make the estates begin at different times, the legal effect of the grant was altered, ,n fact, it was not so. as this was in effect a grant to tenants in common, though tho grant ou its face purported to grant a joint tenancy by construing, by vesting the estates at different times, the section the Court was carrying' out. what was the original intention of tho Nativo Land Court and tho Crown, as section 4. of the Native Land Act, 1869, showed. Further on, His Honour said he could make no distinction between'the act of dying-and the act of alienating, and therefore tho ante-, vesting in both cases only applied to the porson who died "in his lifetime," or before the transfer" by him. If outsido circumstances were to bo looked at, they appeared to him to bo all on the side of the plaintiffs save one—namely, tho lapse of time since tho successors wero appointed to tho commencement of the suit. The delay had been long, but if it wero true, as alleged m tho statement of claim, that Pakiripi and his , successors in title had had continuous possession since the title was investigated in 1867, then the respondents and their prode.cessors in title were to blamo in not ejecting lor. attempting to eject them. If there had ;beon no ante-vesting clause, Pakiripi's estate at- his death—no Crown grant having been issued—was still what was called " papatipu" land. It was still land held under Maori custom, and his successors became on•titled. Did tho issue. of the grant divest ■them of tho estato? it was, howovcr, unnecessary to refer to many considerations that were apparent on the face of such a transaction as this. The Crown grant, qua grant, had not been attacked. No Nativo could do so becauso of tho provisions of tho Land Titles Protection Act, 1902, unless with the consent of the Govemor-in-Council, and that consont had been refused. He was of opinion that the judgment of the Court below should be reversed, and the answer given that, so far as • Pakiripi's sharo was concerned, it became, at all ovents by virtue of ! section 34 of the Crown Grants Act, 1866, a sharo held on tenancy in common, and that to > such share the Nativo Land Court, had power to do what,it did—namely, to appoint; '.'successors. His Honour added that, inde■pondently of that section, it appeared to him as,tho shares were unequal and so declared by tho 14th section of tho Nativo Land Act, 1869, the estate was one,of tenancy in common. To so hold might, he snid, seem to conflict with tho decision of the Court in Karaitiana v. Slitton, and i,t was not necessary to do so. The case was unique in that one of the grantees died before tho grant was issued, and tho decision in this caso might not affect any other grant in the Dominion. The decision in Karaitiana v. Sutton was given in 1875, and though it might. have been a guide to conveyances since that date, the circumstances in this case were different. .Further, since 1870 alllands granted by the Crown had come under' the land transfer system. In. such cases tho title was guaranteed, and was not open, to attack. He mentioned these considerations, but so long as the principle of stare'decisses is not infringed it is, he apprehended, the duty of the Court to do justice, whatever obiter dicta'there might be in the judgments of tho .Court, irreconcilable with what tho Court might determine to be the law, and whatever might be tho effect of the judgments in,other cases.

Mr. Blair, on behalf of Mr. Skcrrott, K.C., ' asked for leave to appeal to the Privy Council. The Court agreed that the 'motion .should stand over, in order that the question as to whether the Court had jurisdiction 16 give leave to appeal on a judgment in an interlocutory matter might be considered. Mr. Ncavo, on behalf of Mr. M'Gregor, appeared for the respondents. J UDGMENT BY. THE CHIEF JUSTICE. . His LVmour the Chief Justice said that the wholo of the contest turned on the meaning of section 305 of the Municipal Corporations -Act, 1900. Two interpretations wore suggested. One was that the word "watershed" in the section did not signify land 'owned by the Corporation or used by them as their land, but that it included all land lying nbovo their land and on which water may fall and get into the creeks or streams, and from these creeks or streams be convoyed to the Corporation Reservoir; that was that land not belonging to the Corporation, not in their possession, was yet so controlled by this section that no man. could use the land for grazing or for building'or practically for anything. Tho other interpretation was that the foul liquid or ma.ttcr which, was mentioned in. the section and of which the throwing, or suffering was created an ofl'enco must ho 'thrown, poured, or suffered or nllowqd to fall or flow" into the stream which flows*through tho Corporation's land or into the : watershed belonging to the Corporation.. Tho question was, which was the,,correct interpretation of these two possible interpretations? If the first interpretation were correct, then it would happen that tho ( beneficial nso of property belonging to persons would be taken away without any right of compensation. There was no provision for compensation for such a right. The only section providing for. compensation was section 205 which read as lollows:—"Every person who hns any estate or interest in any land or building taken for any of the purposes of this Act, or in any hind or building injuriously affected by the construction under this Act of any public work, shall be entitled to full componso-' tion for the same, which, may ho claimed, and shall be detenrinod in the manner provided,hv Part 111 of the Public Works Act, 180.4.' 'It miplit. be a nuesfion n-lmthor it could lie said that the land was injuriously , affected hv the construction of the waterworks. Tim injurious effort was not Uie construction of the waterworks, but. tho power that was given if tho section were interpreted according to'the first interpretation to punish for the user of land as mentioned iii section 305. If, therefore, section 305 could he interpreted, giving nffeot to every word in tho section in accordance, with the second interpretation, it was the duty of the Court to adopt that interpretation which preserves property rights a rid gives effect to the words nf tho Legislature. Various cases might bo cited as authority for this. Look-

ing at the section itself it appeared that the watershed referred to—for everything turns on that word "watershed"—must bo a part of, or taken or used for supplying water to, any waterworks. It was not suggested that this watershed had been 'taken, but it was said that it was used. Used by whom ? In one sense no doubt water which fell on the land above would reach the stream if not interfered with, and in that sense the water which reached the stream of the Corporation might bo said to come from this watershed, but a user must mean a usdr as a right, and there was nothing in the statement which required the owner of this watershed to yield up his common law right to catch surface water, or to catch water falling from" heaven; that was water not in the stream : or creek. The owner of property had tlio right to do so, and there was nothing ■' in this section or any section' of -the Act; which purported to restrict an owner of',property from so obtaining such water and using it" for his own purposes. If the.'word'" used;" were interpreted iiv its widest sonso, it must be interpreted to mean that the Corporation -'Snd'a right to ; nil the water that might fall on the land-above th« reservoir. That would be n creation of property right which was not sanctioned by the statute, and which would have to he granted and unambiguous terms. He was of opinion that the words of the section must bo interpreted according to the second interpretation, and that was that thn "wnor of the land would be prevented from doing anything on his land that would foul the water down below, or foul land down below, belonging to the Corporation. That, no doubt, restricted its use very greatly, but at common law ho would hav'o no right to force a lower proprietor to accept his drainage, his. foul liquids or foul matters, and it appeared to him that, if it,were true that ho could not turn.his land into building land unless the lower proprietor received foul matter or foul liquid, then he must bo content to uso his land, not as building land, and the Assessment Court must so assess it. It was clear that he had no, right to' demand that the lower proprietor should do anything but receive clear and pure water in the stream, and he had no right to put any impure, matter on his neighbour's, .land. He ' was- of opinion that this section was not meant to create a greater liability on an adjoining proprietor than existed at common law, but it was L ,i useful section in giving owners of waterworks a more speedy remedy to protect their property. Instead of having to go to the Supremo Court for damages or injunction, the offence of putting impure liquid or impure matter into streams or watersheds was made a criminal offence, and the Corporation could proceed for a penalty provided for in the section. As to question 2, he yas of opinion that " watershed" meant "■catchment area," and that the catchwater area, or watershed, mentioned in section 305, must mean the catchwater area or section belonging to the Corporation under tho land lying above the Corporation land, and that it must bo so interpreted in section 287. Tho claimants were entitled to costs, which would bo fixed by the Compensation Court.

Justices Williams, Denniston, and Button concurred.

Mr. M.' Chapmjn, K.C. (with him Mr. Fitchett) represented Fitchett;-Mr. D. M. Findlay appeared for Harrington; and Mr. A. Gray (with him Mr. J. O'Shca) for the Corporation. WHAT IS A PUBLIC ROAD ? HANK OF NEW ZEALAND v. LAND REGISTRAR AT AUCKLAND. This was an appeal from tho decision of Mr. Justice Denniston, who hold, that; assuming that section 107 of tho Lands Transfer Act 1870 did not make tho deposit of a plan in itself a dedication of roads to tho public, none of the strips of laud claimed to bo public roads in an estate (containing 25,000 acres) in the Waika'to district, owned by the appellants (successors to the Assets Realisation Boards), wcro public, roads. Tho Court disjnissed the appeal. No costs were allowed to cither side-; the costs of tho District Land Registrar to bo paid out of assurance fund; tho District Land Registrar to receive costs for the appellant in tho Supremo Court, to be fixed by that Court. ■ Mr. Skerrctt, K.C. (with him Mr. Hanna) appeared for tho appellant, and Mr. Chapman, K.C. (with him Mr. Swarbrick) for tho respondent.

Tho Court then adjourned until November 20 at 10 a.m., when judgment will bo delivered in tho case Annie Quaylo Townend, of Ohristchurch (appellant) v; the Commissioner of Stamps (respondent). Tho question of evasion of death duties is involved in this case, which was removed into tho Appeal Court for argument.