RESERVED JUDGMENT.

Dominion, Volume 1, Issue 148, 17 March 1908, Page 4

RESERVED JUDGMENT.

' THE WAIMARAMA; CASE. V : >.i; NEIGHBOURS AT VARIANCE; V / 5 1 Mr. Justice Edwards has given, judgment in the caso between'.Gortrudo Ellen .Meinertzliagen (plaintiff) v. Arini Donnelly and others 1 a/motion ;by defendants for tho cancellation of an inle'rim injunction' restraining them from puttings stock .on.'lands .-in' tho ; occupation of plaintiff, and' a: motion ' by. plaintiff for a perpetual injunction. ■"■;',".- At the heating of argument, which, occupied two days, . Mr.. M. Chapman, K.C. (with him Mr.' C. B. Morieon), nppoared, for the plaintiff, 'and '■■Messrs. Skerrett 1 ' and 'Bell, jLC.'s (with'thom Mr. Lewis, of Hastings)'; for the defendahts.

His Honour, who prefaced his judgment by stating that .the case was a 1 peculiar one) pointed, out'that plaintiff and her predecessors'in title ,had for many years prior, to HaW, 19.07y been in possession under'leases which' expired on that .date of certain land containing 18,495, acres, being parts of the block's knowK'ai'.Waimarama and Okaihau. Befora ■ the" expiry of, the leases, plaintiff obtained from a large majority of. the Native owners renewed leases. , The approval of tho Ikajoa';Lahd,. Board , was,, however; rightly refused, on 1 the ground that a, declaration required, under, the Act bed not been lodged' Prior to , December, 1906, the' parcel 6f land, this title .to, which it was necessary most particularly, to trace, was, , observed His Hoaour, known as Waimarama No. Ba, and contained 15,825 aerM. By- partition orders dated December, 1&06, the :Nativo' Land CoUrt further partitioned the block into seven areas. Of ,theso,. it was necessary to mention specially,i No. 8a No. 6, which'so partitioned' contained6489 , seres, but on appeal th® area was increased to 6636- acres Tn« boundaries of the., several; blocks • had.- not been' BUfvejred. V All the owners of No. 5a No. 6 desired that.plaintiff.should have leaseii' The defendants contended that, notwithstanding the ■~proceedings, of. the Native' Land, Court, all the. Native owners _ of No. •. Ba, including the defendants/ remained tenants in common'of this whole of. 1 tho block, and that.consequently the I ,Natives,declared to be. 1 owners of No.. 3a No. 6' could not put .the plaintiff into .' exclusive possession . of tho-' block. \ However, the authorities cited :on their behalf did as in neither cf them was there any description from which tho land, the! subject; of the'adjudication, could bo identified: Dofendants' further • ontontion, that, as no order, as defined by . tho interpretation; clause; had been signed and scaled, there was no'judgment of the Court upon partition, could not be upheld, i The block immediately adjoining No. 3a Nor .6,-' containing' 6090, acres, was. His ■Honour continued,-' called No. 3a Noi; 5, '.and. had...b.een_awardcd: by the. Native Land Court to the defendants. The northern portion" was , in - occupation; of defendants Tdr some of .them. The Nativo owners who. wero not defendants'; iri: this, action' 1 executed -jtoplaintifr leases' of thoir interest in tho block. In the opinion of tho Court the leases so far as concerned the objections raised to. them, by : counsel, for' {defendants ... were,; although invalid as. leases; good ; . as "contracts, and. plaintiff,, who, was in lawful possession, ,was"in ; the position of co-owner with the defendants yin No. 8a No. 6. Thero was also a -considerable ; area, : which repre-' sented purchases' made, from ; the Nativo owners by the Crown, , and ■ a largo portion of it was in the occupation of the'defendants or some of them. .Plaintiff, claime'd to bo entitled to tho 'whole of this are<i as tenant under the Crown. She had produced a receipt from the Receiver of Land Revenue for a half-year's, rent from' January <16, 1908, to July 16, 1908,' for 10,027 acres in Waimarama and other blocks. ' On behalf of]tho defendant's it ; was alleged that her; license in respect of the- Waimarama run-had been cancelled,..but tho''Court, was linßblo to see-that the license/could be cancelled before July next if it had been' ; lawfully granted.' * - - , The statement of claim set forth, that if defendants put stock on their oVn lands within 'the 'boundaries' at' present; occupied by;plaintiff, such stock' must inevitably trea-. pass upon land in which defendants have no interest, and of whieh plai'ntiff 'is in possession. .'lt was ; further'alleged that'in that event, there 1 would be less of\, herbage, and loss arisirif* by reason 'of the contamination of plaintiff's flock, which numbered 32,000, and which' had • been carefully bred. And further that, as plaintiff's boundaries could not . at present be fenced, her only remedy if an injunction were not granted w.ould _ be to drive the stock of defendant trespassing on her land to the nearest pound. It was admitted on behalf of plaintiff. that the injunction 'order - was too'.wide'. N in. its.terms,, but it "was claimed that she was , entitled to an injunction: restraining 'the;-defendants from 'allowing stock r to - stray: on ■to unfenced land' in occupation of plaintiff; The defendants'.resisted the injunction in tho form suggested on the ground that it' would prevont them from stocking their land. . . Contiriuingj His Honour, stated, with reforenco to "defendants' Jirst submission, tho Court found ■ that' plaintiff was entitled as against 'defendants' at 'least' to exclusivo; possession of -No. 3 a' No." 6. Secondly, it was' submitted- that -an', injunction. - was not granted'against trespass unless (a) tho/trospnss was an assertion of titlo or (b)'the trespass was a destructive trespass. Ho '(His Honour) could not,,however, doubt that tho .Court' had jurisdiction |o restrain tho threatened- trespass. . The difficulty in the cas,e—«uid it was a very serious difficulty—-waa that the plaintiff s sheep were trecpotsing -npon defendanta' land. "Upon tho whole," Hi« Hoaour coiitiuued, "I think _ I am guito justified in granting tho. injunction subject, to such, conditions as mil enablo tho defendant,! to rscovor from tJio plaintiff damages if hoi- stock trespass upon thoir laiid. I. um, mora disposed to tako, this view becauso I am sativ-liod-.that t-ho real objects ,of tho; dofondaaits is not to oatablish for tlio'first tirno upau this land, and to carry on tho busiucss of siieopfarmoi's, but to compel tho plainfjff to yield to whatever demands t-hey may'chooso tho prico of tJio proswration of plaintiff's business."Tlio order made by His .-Honour was that an injunction do; i&suo restraining' tho defendants from allowing .thoir stock; to tres-. pasi upon No. "3a No. 6, plaintiff undertake

ing that in any action . which might bo lirought against her for the recovery of damages in tho event of hor allowing stock to trespass on the land of the defendants she would not rely upon the Impounding Act as a defonco to such action. Plaintiff 'was also to undertake that so fir as concerns the land in question she will not rely upon possession under the co-owners with tie defendants, or suoh of the defendants as hare, an interest .therein) as a defenes to any action which might be brought against ,hcr by tho defendants for the recovery of damages in res poet of trespsiis #f her. stock on the land, end in any such action'tbs plaintiff Bhall admit that the defendant# bringing suoh action hare the same rijjlit to. recover damages as though the: area had been awarded to defendant! in severalty. In conclusion, His Honour pointed outtiiat the order did not infringe'any legal right'of the defendants in so' far «-s it restrained them from tho illegal act "which they, threatened, 'to frcspass upon plaintiff's land., The conditions which _he had . st-tflched ,t>o tk« order; wore conditions 'to which defendants ' woro' justly entitled. They might 'or might" not avail themselves of them as they pleased.' It would probably be to the.' benefit of both . parties that in lieu of the • eonditiaas," tho' condition should bo in the form suggested by counsel for the plaintiff. Without defendants consent tho Court could not adopt tho form of condition* suggested by tho pliintiff, as tado; so-Would bo to compel tho defeaid,ants to sell their pasturage-to the plaintiff.' Men party .was'ordered to pay-their own costs. . ; '■ ' :