COURT OF APPEAL.

Dominion, Volume 1, Issue 193, 9 May 1908, Page 13

COURT OF APPEAL.

•(.LIABILITY: FOR A LANDSLIP. ' AN IMPORTANT POINT. " "Hie case between Johanna Byrne (appellaiit);and George Judd (respondent)—an appeal ( fjom tl)o decision of His Honour, tho Chief : Justicor-was :licard yesterday beforo Thoir Honours Justices Dcnmston, Edwards, Cooper, ;and Chapman. ; : . Mr; Devine appeared on behalf of tho ap- ■ pollant, and Mr. Skerrett, K.O. (with lnm 'Mr. Weston) for tho respondent. .'~ , y lt : :was'stated in ,the contested judgment ■that:the case raised a very important question. < Ono Jeremiah O'Brien owned ccrtam freehold'land ;m tho city of Wellington from ' 1880 or 1881. till his doath on January .9, 1896.- By his will ho devised the land to - Johanna Byrne for lier life.Judd purchased the' "'adjoining' ' land ■ in' 1899. -; In .the eighties " O'Brien made' an excavation on ' ,vhis ''own 1 land which'removed'the l&ter&Lsupr ■ ' port/'of- the land purchased by Judd. To . -.prevent "damage or. a slip lie substituted a 'woq'den| support' for, the natural support. This . .during O'Brien's Hfe, r and he from time to time repaired it. Seven . :years : after O'Brien's ■ death' the. breastwork ■ haying . through ; exposure to, wind' and rain perished' ceased to be a support arid a big '■■'v.- slip of. Jiidd's larid occurred. To save his , laiidt Judd had:to erect a concrete wall and to make it a support for his land, and ho claimed for the slip'assessing his damages at the.'Ms't'of the wall, £117 10s. Two ques- ' tions were raised :,,(1)' Was the .' life' tenant liable?, (2) Were tho executors of O'Brien 51agistfa%'.had held that as the life tpnarit did not icx'cayate therewas no lia-. ;. /...bility on her part, and- that if O'Brien were, guilty, of "a tort the rightofaction died with him. :It was,. His Honour said, " clear law that an owner could.mako excavations on his Vowri laridVso long as,there was ho' damage / sustained-by that of his neighbour, and that no action would lie. until'' damage accrued. .. Here; there was a ; substitute -foi\ natural support, of support,, which, if .neglected ~ arid/: allowed to fall into disrepair, would 'cause slip. No aiction could lie'against the executors, because no tort was committed in .' O'Brien's lifetime. } ; Tlie question then.was whether , tho . successor,., in . . title having ob-. ': tairiM,v ( thoiland ..witL tHat'artificial-.;supisort could<stand-by arid allow.it to perish and be , ; freei'.from liability. If, artificial support had . not been substituted,; by O'Brien, no doubt .a slip - would havo occurred after the first heavy ehower/ofirain; .and an action could havo been; commenced against O'Brien. He,; however, by' substituting a breastwork for. the original ' , ' Spil vpreyerited a slip, and this - slip had occurred' because his.artificial support;had been .. n'eglc'cted v'and not maintained. ■/. - The slip, ;tiierefo¥ep,'liad 'occurred'by-the neglect: of/tho • present owner. It appeared to His Honour , .tba'fori principle, the "'life tenant was liable. " If : ;She'(had;removed' tho Bupport it could not ~ 'hfiv6 r'beenf;'contended /;that she would not have been' liable. : Allowing the support to fallMntoi'.disrepair'fwas; in his opinion, oqui- • valerit to ;TeiJioving it. In a town like -Wellington, so hilly 'and so precipitous, the case 1 was of immense importance.". If ian owner of land could make excavations' and leave them .supported so as to prevent an action in. ■t his lifetime, 'or'whilst he remairied owner, and; theUncoming : owrier%as liot';liable,. then a very serious inroad, had been mado on tho rights of ..property." There was no precedent \for sustaining''''Judd!s - right, • arid the l two cases that had been referred to were, so far ". r »s .-some of;.,the; L expressions "of the Judges '.wore concerned, against it, but m reason and logic, J and according to: the law of real pro- , : perty,; JuddVright against Mrs. Byrne ought : ■to be maintained. v His Honour allowed tho appeal.from the decision of the Magistrate -as Mrs. Byrne was concerned, and r p : remitted-the case to the Magistrate to assess •i damages : on- thoi- assumptionnthatiiisho was • ' liable 'for'the 'slip- 1 unless nfcicould j.-be shown O'-by-her iwaß'>B6m'e which . ■ ■ was- tho' causo of tho slip, -and' that tho was not neglect to keop the breastwork in order. i ."" -The! 1 Courts intimated r that. it - would take i tuno.to consider its judgment. " I VALIDITY OF SECURITIES. RE-TRIAL OF CASE ORDERED Court , gave its decision with respect • to the: appeal of Levin and. Co., Ltd., 1 from tlie"]udgment of. the .Chief, Justice-in, tho actioii- botween the representatives of; the , Jato:'James,;Reed, formerly/ of Paimerston North, '• and afterwards of Sydney fractitioner), and- Georgei A. Simpson;: (of oxton, i-ilaxmiller),: wherein',His Honour adjudged certain securities' held by Levin and iCo., Ltd., to .be void as affecting tho property of-, the partnership of Messrs. . Reed . , and. Simpson. . .<■ ■ . decidcd:.to refer,'the case ~back'to:tha 'Supreme: Court for-re-trial/.both as to lawr and factj ■ : allquestions of. costs of the appeal. as well as tho costs .in the Supreme Court.to be settled at the,r&-trial. Mr.*: Bell, K.C. , (with- iim Mr. Ostler), appeared on behalf of Lovin and Co.j Ltd.: . (appellants),-and Mr.- Skerrett, IC C. (with ■ him, Mr.:,. Gifford.i. Moore, of Palraerstou North), for. tbo. reprosentatives. of tho. lata . Dr. .Reed (respondents). • .