COURT OF APPEAL.

Dominion, Volume 1, Issue 162, 2 April 1908, Page 4

COURT OF APPEAL.

AN AUCKLAND CASE. PUBLIC OR PRIVATE STREETS?* , The sittings of the Court of Appeal wero resumed yesterday .morning. In the unavoidable absence of tho Chief Justice (Sir Robert Stout), Mr. Justice Williams presided. There wero also present: Justices Dcnniston, Edwards, Cooper, and Chapman. . Argument was heard relative to tho action between the Grey Lynn .Borough Council and tho Assets Realisation Board—a case removed into tho Court by consent upon a statement of facts agreed upon by tho parties. Plaintiffs. ■ claimed from defendants the :sum of £G3 13s. for work done in Princeps Street and Firth Road, which are situated within the boundaries of the borough. The dcfonce to the action was that the streets wore public and not private sheets. v Mr. Hoskings, K.C. (with him Mr. Reed), appeared on behalf of the plaintiffs, and Mr. Skerrett, K.C. (with him for the defendants. - Tho statement of the case set forth tliat in 1882. the wholo. of tho Surrey Hills Estate was held under certificate, of title under the Land Transfer Act, 1870.. The owners in 1883 cut up Ihe Estate,! and submitted tho subdivisional plans to this Newton Road Board, for its approval.- Owing to numerous narrow lanes leading off the principal streets the Newton Road Board resolved that no road bo allowed within the boundaries of the' district of a less width than one chain. New . plans were then prepared, eliminating the narrow' lanes, and the Newton Road Board then made no objection. During the latter end of 1883 the plans wero duly deposited in tho Land Transfer Office. When parts of the property were offered for sale on October 25, 18S3, the vendors intimated that all the' roads (including, those in question) would be at once formed and 'metalled at tho expense of the Estate. In 1884 tho Newton' Road Board, and subsequently_' the Newton .Borough, s agreed to contribute one third of tho cost of certain roads in the Estate, the owners' of the Estate contributing ;one-third, and tho. owners of-allotments one-third. Since 1887 tho local authority has from tinio to time spent money on a large number of the roads in the Estate, includ-' iug Princeps Street, but has never spent any money on Firth Road other than tho amount claimcd in this action. No objection was taken, by tho Newton Road Board, arid subsequently by the Newton Borough, to tho laying of gas mains by tho Aucldand Gas Company, through various streets, including Princeps Street., Shortly after the formation of the borough, the owners, by arrangement with .the local authority, paid £50 towards tho cost of fixing the. levels. These levels were submitted to the owners, and approvcd\ in the early part of] 1886. There was nothing on the map submitted specially to indicato that any of the streets wero, or were not, private, streets. In 1889 the Newton Borough Council purchased a part of the Estato, and erected' council chambers thereon.' Three years later tho Council. called upon tho Assets Realisation Board (the then owners of the unsold portions of the Estate) to remove'fences across certain of the roads,, but at 'tho'requost of-the Board consented to .the, erection-'..of swing; gates across .'the roads;-'. but insisting: at the -same s time that the words '" public road " -should bo placed on each side of the gates pursuant, to Section 12 of the Public Works Act 1 . Amendment A'cty.' of 18S9. ... Tho name of the Newton Borough - was .changed : to tli« Grey Lynn Borough Council in 1000. Two years later tho Borough caused a map to -bo-prepared showing a drainage scheme,. which' involved the 'laying of a main; drain s or, sewer, down Princeps, Street. Tho scheme was duly cart ( ried ,out. 1n.1904 the 'Auckland- Gas Com-; pany .-.sued ' the.Borough,; Council..,for : : the alterations ill- tho gas mains consequent on the . alterations. .. of tho.' levels' ;, of, streets, and -judgment was.given against.tho Borough Council. Two years ' later, tho. Board; .took outa summons requiring. the District Land Registrar to' register a transfer,,of a .section, and Mr. . Justice . Edwards ordered' that the., transfer' ; should ;be registered. In February, 1907, 'two residue-cois

tificates.of .title were issued. .For a. period; exceeding twenty years .the roads and'streets have appeared oil public ma'ps of,'the district with' nothing to- indicate that they were other than public, highways. • The 'Borough 'and, its predecessors "spent large sums' of money in lorjning and' making 'Princeps, Street, and also'expended .money in laying a water main down the street. All : the roads or,streets in the Estate have been continuously open to the! u'so, : of the public.;for a period' pf over twenty years'; For' several days in March;. 1902, the local authority advertised that, it. did not. .admit that; x.ny of the roadways in -tho estate' 1 wero public streets, but contended that they, were private streets,. and that owners of the land abutting on. tho streets were pliable for the cost'of .effecting repairs. No rates have been paid in respect of the roads since the,subdivision of the Estate. , .-"■:. : Mr. Hoskingsj .on, behalf of, the plaintiffs; stated that the question raised by the,'proceedings: was whether tho Borough , could claim that the streets in; question, were private : streets, and whether; it could impose on :tho owners of , the frontages, to them tho liability . of constructingthem.. . Plaintiffs' claimed, that they could recover the amount in. dispute under Sub-section ■ 2 of Section 231 of the Municipal Corporations Act, 1900, which roads as follows:— ' '

"The Council may', by notic'o in writing, require, the owners of land: or buildings abutting on a private street to construct or repair the same with tho footways, kerbing, and channelling thereof. Every such owiier shall bo liable for tho construction and repair of so much of such' private street as lies botween his land and tho middle line of such street." .' . ■. : . . -. Council submitted that tho■ evidence was insufficient to ; establish dedication '-.of ' the 1 roads>.in question as-public highways.up to. November 7, 1885, the date of tlio constitution of ther borough.. Assuming the; streets'j to havo been public highways for all purposes at that,date, they did not,; lie: contended, vest in tlio borough according to tho true construction of the 'Municipal Corporations Act, 1878, although they wore highways.', Mr. Skerrett, on behalf of tho defendants, contended that the effect of the main, point made by. counsel for, tho plaintiffs was that even assuming tho roads werp; public roads there was contained in the Public Works Act, 1882,- .which was then, in: force, a pro; hibition against the dedication of such roads: He (Mr. Skerrett) • submitted that there was ho such prohibition. . Under tho Act in, question, there -could, he urged, be a private dedication, because ' Section -78 -• declared that a ' road ' ■■meant a.. public highway, and unless ' .repugnant: to the • context, included roads .which might thereafter be set, apart under any-.law. The laying out of I'a road had'been held'to mean, when it was pegged -out • arid '• surveyed!< • A>, street, could not be, a private street' unless it : wera laid out in a borough./ When : the streets in question were laid out, the Estate was part of a road- district,. and;.therefore-the' Municipal Corporations Act of. 1878 never had any application to .them. The roads were, lie contended;''public 1 roads when the. borough was constituted. J Counsel for the defence had not. concluded his argument when ,tho. Court adjourned until this morning.