LAW REPORTS.

Dominion, Volume 1, Issue 126, 20 February 1908, Page 9

LAW REPORTS.

■ —■ —» .. ~ ~,, SUPREME XOURT. ; civil sittinCj's. QUESTION OF A PUIILIQ ItOAD. > The Civil Sittiugs were i:esu!iied'.yesto-day; morning, His Honour Mr. ~Justico;,Chapmari taking his seat at 10.30 d!clock.', -i , The caso set down for hearing' was' that, between Goorge Henry BaylisJ ; of Island' Bay,' contractor, and John Carroll,- of ..Wellington;" coal and gravel denier. ' . .'•:.; ; ; Mr. Weston appeared on- behalf •of the' plaintiff and Mr. Young (instructed by' Mr- . for the defendant;" 11 '' •••= •Tho statement of claim.'set'fo^th..'thiit. ;.tli,q defendant .agreed to payvi)lairitilf qi tla6 sum, of 0110 shilling for every 'load :of gravel, taken, by him across plaintiff's'iaricl' at l lslana Bay during tho month of December, 4903)' i'arid; 1 ' subsequently, tho sum ,pl. sixpence. pqi\).6ad., Defendant had, it was ;;alj(iged,' car.tpdi loads over plaintiff's land!.up' to. arid inclu3ivo;| of April 30, 1907. Wherefore plaintiff ■claimed! to recover from the defendant :: th6"srim'. of. £44 55., being balaiicb Sue.' " As'an'alternative causo of action,' tlio plaintiff alleged t]iaV the defendant had, without..,tho,, permission of tho plaintiff, carted gravel over plaintiffs land, and that plaintif):,'? .usual .charge, ; for, permission to cart gravel- o'ver-his--property.' was t he' sum of sixpenco' ; per' load'.'" Wherefo'ro, plaintiff-claimed s's/"from dant in respect of tho alipgcdvtrpipass.^.- .„•,''. Tho Btateinent: of defence set forth - that the public had acquirqd. a road by long user over th.e.Jand.iii ; .(juestion.If it wero found that -..defendant'had trespassed upon • the' plaintiff's jandf .-.then ,-.tho damages claimed wero excesGivo/fV'lf.edefen-' dant had paid for the ustf of ,the track'he ; had: dono so in error. ~ 5 5,.,;, r ,4iV Mr.; Weston, ill opening..tiicy-.qßSOcfor itho .plaintiff,-- stated that the main question-at; issue was whether a track iaid tliroiigh plaintiff's property was a public jood. : ; The.wholo':,. of tho plaintiff's property formed jiart'.of ;Mr. ; Gcorgo .Hunter's. estate,; which-was kriowii' as the'lsland.Bay Station! (-.There-was noisettle.mont in the locality_ until, purchased and subdivided. Wright, and Joseph in 1884. The fact: that: Messrs;: Wright and Joseph had actually a road near by in\that,.year,'iftogetherV.withjother facts; was_' very,;Stro»s ..preCTmptiTO' proof that plaintiff's tropictended to bo dedicated. ; Plaintiff stated tliat.-.'iJie-vjnii'cliascd.jthb, block '..in-' question -in ISS-i,.: the track in order .to obtain^access to.;his:.quarry.Up till 1903, when ho 'went, out .of ibus.iriess: as a .road metal contractor,; no one, was ..al-,: lowed .to. use the tr'ack.-;;;Subsequontly,, until; tho Corporation made aliped near; by,: several contractors mado arrangements with him for tho use of his private; track. • ' After further, evidence,jlijlr. Yoiuiji, argued that ths defendant had, m.-law., the right to deviate from the main, which 'was atthe time in an impassaJjle; condition,' that the plan of ,to indicate the road actually used, and that no;; damage had beqri donevtrue, had made • some payments to." plaintiff, but it had suitcu-him bettor, to pay.ja-small. sum than to litigate his right^: Isaac. Short, who was^liorn/in,the o distric,t. in. 1849, stated that tlic'-piiblic- were -alloived', to use tho track in ■ days. ~ -Silico J the; the Weyin(;ton.;woi;o:.wrccked in'the locality,, about .30 years ago, thero had been wheeled trafiic.' on tho .track r -which was now very, little different in,,appearauce.i from what it was then;.,; - ,-,r ; :. A number of other : witnesses ; v alsoj 'gavoM evidence, as to long ."f" Counsel then addressed* tho. Court on-the.-leftal ■ points raised. i,:. ,J His Honour reserved •judgment. IN CHAMBERS . Sitting : .in . Chambers..-y&terdsyj His Honour,' Mr. Jiistice IChapmany?, argument- relative to ari'originating.-summons —Agnes Jarvie Pearston ;.' ; Macdpi;ald : :ip.lttirir tiff) v. tho Public; Tnistee for: directions as to. the application-of, the in the estate of ; ,'husbandj, Allan Dickson, Macdonaldl ifprnjejly lington, but lastly of Roino;'>ltaly,' died on April 27, 19,17,. ';.Th*(£;idefendaiit l is, the executor and ; trustee».Qf.lthb-will.

Mr. A. L. Herdman appeared-on behalf of plaintiff, and Mr. Frederick for tho defendant. : , ' His Honour reserved judgment