COURT OF APPEAL.

Dominion, Volume 1, Issue 172, 14 April 1908, Page 4

COURT OF APPEAL.

COMMITTEE V. BOARD. REGULATION OF SCHOOL HOURS. JUDGMENT RESERVED. ' i The sittings of the Court of Appeal were , resumed yesterday morning.' Tho'hearing of argument relative to tlio action, tho Wnnga'mii School Committeo (ap- • pollants) v. tho Wanganui .Education Board and Honr.y M. Payne, headmaster of the Qucion's l'art School (respondents)—an appeal from a judgment delivered on February 2-t by Mr. Justico Cooper on tho ground that the decision was erroneous in point of law —; was concluded. Mr. Myers 'appeared on behalf of the! appellants .-and Mr. Skcrrctt, K,C. (with him Mr. Hutton, of Wanganui) for the respondents. 1 ARGUMENT FOR RESPONDENTS. ;' Mr. Skcrrctt, on behalf of the respondent Hoard, contended that tho definition of public school was a school under the control and tho .management 'of tho Board, and that tho definition read into section 124 of tho Act mado it clear that all schools wcro under tho control and supervision of tho Board. : Furthermore, tlmt the Board had power to , establish and maintain schools, to establish nnd ("r-fino school districts, to provide funds fct 1 tiki sclnol committees, and to pay, appoint, and dismiss teachers, and that' tho result of the argument of tho appellants would bo that although the Board possessed all those powers they had no power to interfere in the management of tho school except in the few special instances referred .to in tho sections quoted by counsel for the appellants. The Court reserved, its decision. • THE WAiMARAMA CASE.. LEGALITY OF AN INJUNCTION. ' I NEIGHBOURS AT VARIANCE. . Argument was commenccd in tho caso bctwoon Arini Donnelly .and others (appellants) and Gertrude Ellen Meincrtzliagen •(respondent), an ' appeal from a. decision given by Mr. Justice .Edwards on Maroh, 16. relative fa a-motion to ,dischargO|an interim injunction granted by ; Mr. Justicb.' Button restraining Mrs. Dqnnclly.and others from putting stock on land in the possession, of Miss Meinortzhagen known' as the . South . 'Waimarama run. In the statement of claim for tho injunction it .was alleged, that tho location and nature of the.internal fences on tlm run wcro such, that, if Mrs. Donnelly and; the other .respondent's-put stock whero their' lands would bo ultimately .located by survey tlio stock cr.uld not but .trespass on the lands in possession .of Miss - Meinertehagcn, in which. Mrs. Donnelly and-.tho other, respon- 1 dents had no interest, and mix with Miss, Moincrtzhagen's. stock, which- consisted of; 32,000,, carefully bred sheep and lambs ami' 1600 head of cattle. It syas further alleged, that .if a. large, quantity of stock were forced on tho land in Miss-Meinertzhageii's possession 'under tho conditions of, tho then present. drought irreparablcsi; damage would bo done,to her stock ascthere'was not feed on the' run more than, sufficient for .the purpose of her stock; and at; that timo they , were practically unsaleable at; prices of even half their value,under ordinary- conditions. ( ■ ■■« ! Mr; H.-D. Bell, K.C.yaud Mjv.C. P. Skorrett, K.C. (withi them: Mr.'m Lewis, of Hastings) appeared oniibeha-lf, of. Mrs. Donnelley and others aiid;.Mr.'.;M. Chapman, K.C. (with ihim Mr. C; B. .Morison) for Miss Meincrtzhagon. . . '

THE CONTESTED JUDGMENT. i It,will bo remembered;that the hearing of argument for and against the motion .to dis- • solve tlio- injunction occupied two days. Mr. Justice Edwards, , who| ; heard the, case, delivered a 'lengthy judgments , Ho > stated,- -iuter alia, ,that the ease was a peculiar one. Miss Meinertzhagen arid ,her predecessors in title.,had, ,:for many „years. prior .to May...lS), 1907, .been; in possession; undor; which expired - on.- that," date;, of lands containing 18,495 acres,' : being parts of the .blocks known as Waiinaranm 'and Okaihaii. Be-

foro tho expiry of'.the'loascs/'Miss -Mcinertzliagen obtained from a largo .majority of tho Nativo. owners of tho lands tho execution of

documents! which purported: to be renewed leases, but which tho Ikaroa Maori Land District Board rightly refused to approve because she .'had' not lodged a declaration required by the . Act. On December . 11, : 1906, tho- Nativo 'Land' Court partitioned Waimarama No'. , 3a, whiclv..contained 15,835 acres, into-7 blocks, tho boundaricH; of which had riot been surveyed! THe'Nativo Land Com-

mission who was appointed {pn January 21 1907, recommfcnded .that Miss, Moinortzhagen should bp granted a ilease only of 5000 acres

in Waiinarama Nq M ?a. All the, owners of No. '3a No. '6 .'desired that Miss' Meirifcrtz-

hagon should have a lease as recommended by the-Commission.lt was contended oh behalf of Mrs. Donnelly and, (jihoni that'notwithstanding the proceedings] ;of-the Native Land: Court ,p,ll the ; Native ojmprs.'.of No; .3

including themsnlveß remained:..tenants', in common of tho whole of thatiMqck, and that consequently .tho,-Natives declared to ho tho ownors.of; No. 3a No. 6 could : riot put Miss Moinertzhagcil into ' exclusiv(j:possession lof that block. His' Honour; found'that Miss Mcinertzhagen, whose possession:was recognised by the . Legislature, had established

'her right to • the exclusive.,;-possession as against Mrs. Donii'olly, aud othors to tho parcel of land and- except, in so! far as her remedy has been taken, away'bjv tho Impounding 'Act,-1884;. section'.s, could maintain an action for trespass "if that right were interfered witlu The block immediately adjoining No. 3a No. 0. was ealledr-No. 3a No. 5 and had boon.awai'ded.by, tie.Native Land Court t-o Mrs. Donnelly andjlraia Karauria and, Swo other Maoris nameu-Fani Karuaria and Tu Tiakitai. ,; It' contained altogether 6090 . acres. Tho. lastmentioucd Natives, who were not parties ' to; tfje. proceedings, executed to Miss Meinertzhagen : a. leaso of their interests in , tho block [and she -was in

possession. This was one ofj.the .leases which had been hold to'be invalid. His .Honour found' that ; the ; leases , executed to Miss Meincrtzhagon by'the-Nativp owners were so far- as : concerned, the objections raised to them by counsellor! Mrs):,-. Donnelly and others' good as contracts invalid .as leases, and that Miss. Meinertznagen was in tho of co : ownoriwjth Mrs. Donnelly and others in No. 3a N0.)5. Adjoining No. 3a No. s..were several !smaller, blocks to which Mrs.. Donnelly andf.othcrs or somo of thorn were admittedly solely'-entitled. ' There was also, a considerable/area:, which represented purchases made, from the Native, ow-

ners .by. the Crown./ This area extended northward.-'of-the land; Actually occupied by Miss Meinertzhagen ■■ and a : considerable part of it was in ;tho occupation'of Mrs. Donnelly or others. Miss Meinortzhagen claimed to be, ont-itled- as tona'nt-under tho Crown to,tlie ; whoia of this, area; and to be in actual possession" of such part of it as was in her occupation as sue.h. tenant." On behalf of Mrs. Donnelly and-otliel'.s it was alltged that her license had .been cancelled by resolution of the'Boafd, tiut.the Court;; was unable-to seo that the licenso. should be cancelled before July 16 waxt if it'..had; been lawfully granted. Miss Moinertsshagen, by her statement of claim, alleged that,as her. boundaries could not;at present .be: fenced her only remedy if an injunction wore not granted w.ould bo to drive stock trespassing on her land to the nearest pound which was distant over tw'.mt.y miles from .AVaimarama and that such' pound could not accommodate the live stock/which Mrs.. Donnelly and others intended to put upon, the land in her possession./ It was admitted on behalf of Miss Meinortzhagen that.! tho interim injunction order, was too wide ,in its torms, but, it was claimed that slio was.entitled to an injunction/restraining Mrsi Donnelly and others until Some date to kv fixed by, the Court, or tin/ completion of tho survoy of No. 3a No. G; stud tho expiration of a further time thereafter sufficient to enable a fcnce to hi, erected,■ from . allowing tlieir live stock to .stiay from tho unfonced lands in which they have an interest on to tho unfonced lands in tip occupation of Miss Meinortzhagen in which thoy have no interest, Miss Meinei-tz-hjtgen undertaking to pay to them so Ion" ar. sho shall use, exclusively tho grazing of t/io lai\d m which they have an interest such sum as ,tno Court .may order, such sum, if tho parties could not" agree, to be iiwt rhv a reference to tha Eeiri£trar at

Napier. On the other hand Mrs. Donnelly and others resisted tlio injunction in tho form suggested upon tlio ground that if an injunction worn granted in'that form it would prevent them from stocking their land. His Honour found that -Miss Meinerfczhagen was entitled as against Mrs. Donnelly and others to the exclusive possession of No. 3a No. (5, and that the Court had jurisdiction to restrain a threatened trespass in the circumstances of the rase. He felt that ho was justified in granting'an injunction subject to such conditions as would enable Mrs. Donnelly and others to recover from Miss Mcinertzhngen damages if her stock trespassed upon their land, and ordered ■that such an injunction do' issue. GROUNDS OF APPEAL. Tho grounds of appeal from the judgment of Mr. Justico Edwards were as follow:— . (1) That, notwithstanding that tlio interim injunction granted by Mr. Justice Button on .1 obriiary 15 was discharged as being too wido in its terms, and constituting an infringement of tho uppellants' legal rights, no inquiry as to tho damages suffered by the appellants by reason' of tlio said injunction has been ordered by the Court.

(2)' That the injunction granted liy tho present dccreo constitutes such an interference with tho legal, rights of the appellants as freoholdors of certain lands as ought'not. to ba enforced in equity. (3) That practically the decree enables* tlio respondent to continue the possession and occupation of largo tracts of lands |.of. tho appellants, to which tho respondent alleges in some cases no title of aiij; kind, and in other cases alleges at most a right of occupation in i co-tenancy with the appellants, and prohibits the appellants from exorcising, their legal right'to occupy , and use . their own lauds. '

; (4)' That, in any case, if such an injunction could bo granted against tho appellants, it qould only be on terms of tlio'respondent'being made subject to a similar; and equivalent injunction in respect of tho lands'of the appellants.. '

(6) That the absenco. of fences ..bounding the .separate blocks is not duo to any default of the' 'appellants,.-whose land has'been in the occupation of : tliorespondent for twenty-two years. .. '

(6) That, the respondent lias in fact- and in law. no title of any kind to ' any,part cf tlio lands, oxcoptiari inchoate statutory right to £>000 acres, part,of the Block N0.,3a,.N0. 0. \ (7) That as to tlio. crown, lands, tlio respondent |hns no title, of any kind, but if t-h'o respondent has,any.temporary right of occupation of such lands, t such right cannot at law or in.equity bo set up to prevent the use and occupation by the appellants of their own lands. . • .. ; .-~ '

(8); That, in respect of the finding by His Honour in his judgment herein of motive of tho appollants, first, there: is no evidence tp'; support such finding, and secondly, tho,question of motiro is immaterial to the question of the .right of tho appellants to occupy anil use thoir,own lands. : .. -

(9) That tho. finding of His Honour.'that the renewal'-leases to the respondent) though void as leases', wore good as.contracts, is contrary to the statutes affecting Nativo lands, i -.(10) That the .finding, of IBs, Honour that a right'of .occupation in Native lands can be granted without leaso, upon which right the occupier can. rely as against, or in conflict with, the - titlo of Native owners; who. havo not granted-such right, is contrary to tho statutes affecting Native lands. ; (11) .That the conditions imposed upon tho respondent. aro rendered lingatpry -by tlio final;provision of the'decree, tho remedies of .a. ico'-tonant out-of occupation against a cotenant' im occupation boiiig of',- no practical benefit. - " '. .

ARGUMENT FOR APPELLANTS ! Mr. Bell, on behalf'of appellants; quoted Mr.- Justice Edwards's Sliding-,that tho Court must, if ; it' could, grant (in injunction which iriight'in'fact; though not in form, have tho effect of preventing Mrs.'Donnelly and Others frbm using their own land as a sheep run. There wis, courisol submitted;'no precedent for the granting of an injunction restraining an owner from using his own property 'as sheep' land, because his'neighbour s land' happened •to 'bo uufencgd. '"Then, agairi;],'in making tho order, His Honour had observed that it; would'liot infringe' hny-legaFriglit' of the' presentvnp'pollahts,. which /was 'not' consistent with tho foregoing, inasmuch as the-order restrained'the appellants -fronuiising their own 'land.Further,.' His Honour said' lie was, the more disposed to tako that view,' because ho. was satisfied that tho real object of Mrs. Donnelly and-others was not to establish for the first time upon the land in question,' and to carry oil the business of sheepfarmers, but to compel Miss Mcinertehagen to yield to whatever] demands they .might choose "to mako, as'the'price of the preservation of her business! V?ith reference to that finding, counsel contended—(a)... That there wa3 no evidence''of. .stush; a motivo, and (b) ;that. no Court had the right or duty -to tako. such ,'a matter'into consideration, except .as. regards the person claiming in equity. On behalf of appellants, .ho. protested against the inference,' which ■ had been .drawn,.; and proposed], to show that there was 110 foundation.for.'it. Respondent was a lady, and His Honour's remarks went to charge appellants with want of chivalry, but. there was no ■ evidence as to that either. He; snbmittod that- no.- question' relating to Native lands arose in .reality for the purpose'of the decision in the case.'' If; in his argument, ho" used ,the illnstratiori'.of co-tenancy,. it. would bo merely • because the law relating to co-totiahcy would'mako more simple]tho. position which his side placed before the Court: If Mr. Justice Edwards's decision ,wero correct, that the documents purporting to be renewed' leases were good as, contracts, a great many people who thought they had: rib .title, becauso they also had omitted, to .lodge .the declaration requirod by. the Act prior 'to. the execution of the documents,, .would ,'riow; find themselves .possossed of.good contracts. ,;. If Miss 'Meinortzhagen had a good equitable title—a -contract valid against thq world—then-he could-seo rib reason why she, or. any othor person whoso title had beqn. destroyed by the decision in Higgins v., Ikaroa District Maori Land Board, should requiro anything further. Then, with regard tq the alternative dictum that a .title c'ould".bd. acquired-' by license'- of the.Native owners; without the. statutory requirements being complied .with,: His .Honour's doctrine need not be tho subjedt of. examination by tho Court of Appeal. Counsel submitted—(l) That no question, referring to, or decided by, Mr, Justice Edwards.relating.to Native law was.necessary for the decision of tho present case; (2) that there was no authority for tho interference- by.- a Court of. Equity with t-lio legal .right of a freeholder to enter upon his own' land at his own will, and counsel added, a fortiori, if ho were so against' a freeholder entering upon land demised by him after the determination of his lease; (3) that it is without precedent for tho; Court to interfere to provont: an alleged wrong, where the persort suing was - committing the same alleged wrong;, (4) that the. motive alleged to exist by Mr. Justice Edwards was (a)-not proved and (b) entirely immaterial ; .(o) that the condition imposed upon the respondents was-illu-sory; inasmuch ns it would tako effect only if the appellants abstained from exorcising thoir legal ,right ; and (6) that tho decree was, of the samo effect:as tho interim injunction that it discharged. -■-!-■ ;, '.' Aifc this stage, the Court adjourned until 10,30 this morning.

IN CHAMBERS. : Mr. Justice Cooper held, a sitting in Chambers yesterday morning. ' In tlie matter, of tho Land Transfer Act and Chief Judge Jackson Palmer', au order was mado.for tho removal of a caveat over land known as Mangatainoka, J., No; 4, No. .2. Mr. Young appeared in support of tho motion and • Mr. Lynch for' tho Chief Judge. : r . ■■ ■ , AVith rofcronco to tho . Mangawoka Sash and Door Company, an order was made lixiiig May 31 as.'-.the date within which all creditors are to prove their debts or claims; or be excluded from the beneiira of any distribution before such debt-or claim is proved; :an ( advertisement to bo inserted, to 1 this offoct in papers named. Mr. Lynch appeared on behalf of creditors.'.