LAW REPORTS.

Dominion, Volume 1, Issue 259, 25 July 1908, Page 9

LAW REPORTS.

COMPENSATION COURT. SMITH AND SP/lITH, LTD., V. THE CITY 1 CORPORATION. CLAIM FOR £1890'. ■ '• : The hearing of tlie compensation suit : of Smith : and Smith, Ltd:, v. 1 the: Wellington City Corporation, was commenced .yesterday before. Mr. Justice. Chapman,- sitting ,with Mr. J. Trevor assessor for the. claimants, and Mr. E.- W. Seaton assesisor for"' tlib respondents, . ■ " Mr. D. M. Findlay appeared on behalf of the claimants, and Miv,, O'Shea (City Solicitor) for. the Corporation. ■ Tho facts in. this ca'so-were briefly, as follow Claimants, who aro. oil aid colour merchants, hold Sections 7: and 8, ;Block ~5, Reservo K, City of Wellington, under lease from,tho Corporation for Sl-years, with right of'renewal.. The leaso : in-regard :to Section t dates from July, 1900, and that' in connection with Section 8 from September,. 1897..1n respect of Section 7, which abuts onl. Lower Cuba Street, the annual:rental is £106:12s. 6u., and ,in respect of' Section 8/: which'-..is situated at .the corner of-Victoria* Street-and Lower Cuba Strcet, the-.reiit is £126'.75',' 6d. yearly. .Claimants' warehouse.; stands... on Section 8, and the business... promises ..of Messrs. Yerex, Barker,-: and Finlay on.'..the front .portion of Section .7..; Originally claimants had'a yard, measuringx6oft.- x 42ft;,. at tho rear of Section 7:'..rUnder,;. the ".-'.Public Works Act, the Corporation acauired portion of tho yard measuring ; '30ft.''X 42ft. .Claimants now sought to. recover-'.£s4o.'from tho Corporation in respect' *ofc:their. interest in the .land-taken, and £1350 : in respect of alleged injury to the : balance'of tho property as a result of the land-in- question Being taken. ■' ; ■.v:, ... CASE FOR THE'.CLAIMANTS; :' Mr. Find Jay, in opening tho case on behalf of the claimants, that', .'orginally his clients, had a building at'tho-corner of Seer tion 8, but subsequently - had- to.- extend it right along .tho boundary of: Victoria"Street and fill up the land. The necessity then arose for taking- up the lease of Section 7, and-they actually did this when-tho extensions were.- being .made.The conditions "required them to build within.'four years'on this particular property. - Threo years -later plans of a now.building wero obtained.- Claimants .proposed to lot-the 'whole of- the r building excepting,tho basement,'.which they contemplated using for their own requirements. The Corporation intimated that; they - required part of' Section 7 for-tho -purposes of tho power house, and claimant's"replied that" they were prepared to negotiate' if;thff"Corpora: tion could give them another' scction.' Tliis suggestion was not agreed to by the Corporation, which acquired the land in question in March, 1904. There was .a . lapse. , of.-,.four months between the first notification, and the taking of .tho land. By . that time tho'building.was well, under way:; It would probably bo contended by counsel for the'respondents that the claimants .ought hot .to have gone on with the building, as designed,: when-they knejv that tho land in question was going to ba acquired. >

Mr. O'Shca: That is our position. J. Findlay: But wo would- have had to erect a building which would have been use-less—-a.skyscraper. In, conclusion, counsel asserted that tho loss to the business'in consequence of tho corporation acquiring the land m question was greater than the aniount claimed. He then proceeded to call evidence on behalf of the claimants.'. ' 'George ; Henry' Jackson, who-.carries on business in Cuba Street., similar: in . nature to that condncted by claimants', deposed that •in-the matter of yard space claimants' business required a greater: area .than, was the ciso_m respect or his business, and'a space, of 15 square feet was not .sufficient for. nim. The fact that lig had,'had to get outside accommodation had affected his: business considerably in dealing with. largo * plate-glass cases. . There was loss of time and additional labour was required; there was also the added cost of cartage. He . did not think that £100 per annum was an excessive .rental for the yard which claimants had 'leased. There was no, other trade—except perhaps tho timber trade—which, required more yard spaco than'this business, especially in the matter of .handling plate-glass. The _ space left for claimants . was, 'in his opinion, practically worthless. ; If '.witness were to lose his yard, space it would, lie considered, deprives him of about' two-thirds of tho value of his business. If the yard were separated by any considerable distance. it meant a serious loss of-time every day, and claimants did a largo business in plate-glass.. Wjtness did not think the claim for £1350 under this heading was unreasonable. ■ : Cross-examined by Mr. O'Shea, the witness* said■ he had a cart' entrance to his yard; •but it would have suited him bettor to, have built-over it and mado a cart dock. Several (other people-had cart entrances, but claimants'; had not. Within-.' tho : last year ;or'tiro claimants had-, gone into ,the painting, i signwriting,. and decorating trade. Had. witness been Smith and Smith, and had had sufficient money, lie would have built- all over the yard and used cellarage instead 'of yard, ■and dono without a : yard at all.

To ( Mr. I'indlay: The fact; that/the claimants . had added painting; siginvriting, etc.; to their business would not require an addition to'their : , ffm. Smith, Wellington representative'*- of Smith and Smith, Ltd.,' 1 detailed 'the""mannor in which , the firm had .'dealt with-their leases of sections 7 arid'B. During 1903 thoy had plans prepared for. ; a building .to bo erected on scction 7,. whiclitn-oiild'-leave'sufH-oient yard-room arid cellarage. Tho building was commenced in November of that year," and it . was-leased, with; iho;exception ' of the cellarage,-before it was completed. " Then the firm recoived notice.' from 11 the' 'corporation that they required the Application was' made that'o3tho""corpOTalion should supply the firm with"another section,but no answer was received, tb that application. In: their trade -the; packing was frequently nearly as valuable as the goods which the packing-cases contained,' and ; a convenient yard was therefore' essential. . The yard which the firm had originally was in all respects suitable, and-thoy-required tho whole of its'space. Since; tho. yard was taken they had found- difficulty in getting a place, but it was not on-account of the extension of their business in tho direction of painting, siguwrit-ing, and decorating that a yard was necessary. . The rent, they paid for this „ yard - was £2 per-week,, but thoy only had- a weekly tenure. Their clairii was considerably less than their actual loss. The businessvhad been started in ..a-modest way, but had'expanded, and now they found themselves cramped for roorii, and their 'business was to a considerable oxtent dislocated. Mr. O'Shea: At tho time of the proclamation With reference to the'projected resumption of the land, was your company incorporated? —Witness: No. .. " . • Mr. O'Shea then raised the point that tho claim should, have been .brought by. the executors of. Robert Fergus Smith (deceased), who was the former proprietor of tho busi-, ness now carried on .by--.tho, claimants.... ,

Mr. Findlay said that the corporation Jiad ! practically "deceived 'the claimants into the .belief .that, they treated , them as tho proper persons to whom compensation should be paid. If . the corppration wished. , to' raise the objection they could bavo dono so in May. 1907. Tho point was a trivial one, whicn could be overcome by securing ail undertaking from tho executors of R. F. Smith. Ho ventured to say that His Honour had never beforo known of such, ail unconscionable position being taken up by the; Crown or any corporate body. Counsel for the corporation should reconsider'the matter. His Honour: It cannot be suggested that the Court can value'the interest of a company which was not in existence on tho date in question. ' Mr. Findlay: Porhaps the Court will express its opinion with 'referenco to tho propriety of : the position taken up by the corporation. —His Honour: I don't intend to go outsido the authority vested in tho Court by staiute. • Mr.'Findlay: The executors in'tho estate of 11. F. Smith could bo joined with "the claimants. '. - . •

Mr. O'Sliea: I do not object to that course being adopted, but the Corporation is not going ,t<) meet a claim'made by" a hew company, which is carrying' on* the business on different.lines from its predecessor.Mr. Findlay: If tho executors in the estate of R. F. Smith are hot substituted for the present claimants,, .a-lot'of time-Tvill be lost,

His Honour (to Mr. ■ O'Shea): Tho witness is one of tho ■ executors. Aro you prepared to accept his authority in the matter? , Mr. O'Shea: Yes; but tho claim must be bound by the circumstances surrounding tho occupation of the land by tho late 11. P.Smith. ' ' .

• His''Honour: Tho claim, must be regarded as'if it had bp.cn filed by R. P. Smith. ' Mr.- O'Shea: Wo contend that we can go back to the time of tho notice of intention to acquire 'the property. / " His' Honour:. Oh, that may be so. T shall'amend the claim and proceedings as has been agreed upon. Evidence was .also, given by. Edward-Chas. Evelyn ; Stills, managing director of E.'- W. Mills-.,and Go.. Wm. -Hopkirk, .a- partner.in tho firm of M'Leod Hopkirk and Co.; Frederick .Townsend,: managing director of 'Townsend and Paull; Alex.-L. Wilson, auctioneer and. land \and:,estate"-agent; and Thos. L Yourrcll, architect,' ;,'CASE FOR,THE;CORPORATION. • ■ Mr. O'Shea, on behalf of corporation, submitted that the claim -was .more..than usually,, okcessive.., If, the Lighest valuation given .on behalf of tho,claimants .were taken, tho: freehold value of the area in question; on the, assumption that it was. as' valuable« as ; tho balance of the-allotment, would ; ba-: only from £1500 to £1600. *'He would not • for.'ai moment,.however,-admit that that argu- > mbnt was a sound ono. The correspondence; clearly showed that the date Mr. Smith knew, when.- he commenced to erect _tho second' building that - the corporation, intended to resume the area,--but he preferred to put up' the most profitable kind of building, thereby sacrificing'the, yard space. ■ • -'• At this, stage the Court adjourned -until--9.30 this morning.