LAW REPORTS.

Dominion, Volume 1, Issue 174, 16 April 1908, Page 4

LAW REPORTS.

COURT OF APPEAL. THE WAIMARAMA CASE. LEGALITY OF. AN INJUNCTION. ARGUMENT FOR. RESPONDENT, ; The sittings of tho Court ef Appeal wero resumed yesterday, "when argument in tho caso between Arini Donnelly and others (appellants) and Gertrude Elleu Meincrtzhagen (respondent) was. concluded. This was an appeal from a'decision of Mr. Justice Edwards, who granted an injunction restraining appellants from allowing stock to , stray from certain unfeneed Waimarama lands, and in which tliey have an interest, on to unfeneed land in the occupation of respondent in which they have, no interest, subject' to such conditions as. would enable appellants to recovcr from respondent damages if her stock trespassed upon their'land.'' Mr. H. D. , Bell, K.C., and Mr. C. P. Skerrett,- IC.C. (with them Mr. Lewis, of Hastings), appeared on behalf of appellants, and Mr. M. Chapman, • IC.C. (with liim Mr. C. 13. Morison), for respondent. Mr. Chapman, \vho commenced his address on behalf of tho respondent the previous day, contended further that the exact .locality of' tho parcel of 5000' acres, of which 'the lease, had' bi'en awarded to respondent could bo determined by a surveyor from the judgment of the Native Land Court ,on the matter, and that tho lease granted to the respondent by the; Native owners,. although invalid as a lease, was good as'a contract. . , Mr.. Morison J i whp then addressed the Court on behalf of tha respondent, said that the injunction which respondent desired, nlthough final in; a sense, ■ was _ only of a temporary nature.; It ;was practically for, a stay of proccbdings until the rights of'the parties were ascertained ,by tho Native Land Court. Ponding.tho final ascertainment of the rights, of. tho parties the Court should, he would submit, maintain the ''status' quo. The fact that the Native Land Court had a lot of .business on hand was the real reason for the delay which was taking place. Proceedings in that Court ,'wero ; somewhat longwinded, and, there, wero, it was, understood, insufficient' judges in .that ' Court., 'All the parties could do would : be •to wait 'patiently until the Court could find tinio to put matters right.,, Appellants 'had' contended 'that if jan* injunction: could be, granted-"against them, it could only be on" terms of respondent being made 'subjcct to a similar and equivalent., injunction in rospect of tlieir lands. Ho (counsel) .would submit that in this instance the encumbrances' wore ■ such ; that the, Court would not graiit an injunction against.; respondent, and • that Mr. Justice Edwards's injunction would '.bo. hold to i be" justified. . A .Court of Equity, could suspend the enforcement of appellants'' legal right, i and ,tho respondent: was entitled to say that the time during which'a Court.would suspend that right was -.tho i time / during. which. the injunction applied'for by, respondent ought to be .'granted. Tho value- of appellants,'/! •logal right;'"as an answer ;to respondent's claim: depended on whether or not they could enforce it in a Court of Equity. The circum- . stances I were, bo maintained,' such .that, the .Court .' would protect respondent's ; right by granting an injunction and-suspending tho logal right, of , appellants.;, The respondent was not'an intentional wrongdoer,' s.nd did , not deny,; that. appellants; .wore ■ entitled; to compensation. Some form or othor of oppress sion .would entitle .the Coui-t to prevent' or suspend tho (legal."right., of. appellants. It . would bo, difficult' to. say '-how far ~matters would go if the .Court declined to intcrfero. Counsel contended that it, would'only .be ioit! under the circumstances .to;'allow, respondent to .graze her* stock on/ tho land, in- question until tho propor-season, for selling. Respondent' had never : disputed' appellants' legal, right to .the-land,-.and,' as tho'land .was uiide'rl tho; VAtK , not' ;neeesVarp'i'n n 'aid .'ot/the'-'legal-prevont respondent's wrptigful. occuprition developing into ndyorie title. •, Tho present position' was not .'due'-tp-tho fault .ofeither; party. . . It .had'"ariscn ii owing to the, fact, that tho parcel of 5000 acros awarded to tho respondent>had not been defined; that tho survey which was ;to follow 1 . upon .tho partition of tho' Native'Land.Court had 'not been, made, and that a drought had prevailed,'and, in 'consequence, the stock wero unsaleable,. excepting at.a great sacrifice. If tho, injunc-. tjon 'refused the ;lahd 'would; b'o ■'flooded':' withitho appellants' stock, and, indeed, respondent .could expect .nothing- but , tho' harshest possible treatment. . It'would.mean.that tho respondent would havo to sell 23,00p sheepi'at once'.for whatever they "would' fetch. Whilst tho injunction .had been I 'in'force respondent : had effected sales whenever opportunity offered. The essence of the claim was the protection, not so much of tho land, as of the stock. '.; ; , ~

'' Mi-.,8e11, in reply, said that the legal delay ■with .reference to. the' definition 'of. the .5000 acres,',the lease of which had been awarded to'thd.'rospondent',.whs;not:duo to the Native Land- Court. ; The Royal Commission (Sir Robert Stout arid Mr.; Npata)''liad defined tlio area, but the Governor had not'as y-et publishecl.their final'report. ', " ' J']: The' Court.'reserved its decision, 'arid then adjourned until Monday, April 27, at 11 o'clock. •