IN BANCO.

Dominion, Volume 1, Issue 288, 29 August 1908, Page 13

IN BANCO.

' QUESTION OF EASEMENT. ; W. H. P. BARBER AND OTHERS v. BOROUGH OF PETOJfE. Argument was heard by Mr. Justice Cooper yesterday in the case of William Henry Peter Barber and others v. the Corporation of Petone.. Mr. Campbell (with him Mr. Peacock) appeared on behalf of the plaintiffs, and Mr. Martin (with him Mr. Kirk) for the defendants; ' . ..The facts in this case which was specially stated for the opinion of tho Court were briefly as follow: —The;action was one for an'injunction and damages in respect of the layihg by the defendant corporation of waterpipes, and' the erection by it of telephone posts upon a strip of land containing 3 roods 5 9-10 perches, being part of the Native Land Court subdivision Known as li' of sections 1 and 2, Hutt District. A certificate'of title for the land was issued to one Henare te Purii, on October 8, 1886, in pursuance of a warrant under .the hand of the Governor. At the time and for some, years previous to the entry by ' the defendants the land was vested in fee simple in possession in Mrs. Margaret Blythe and her brother Alfred George Saunders, as tenants-in-com-mon in equal shares, subject to a right-of-way.* 12ft, wide over part of the land as appurtenant to ■ subdivision 2G of the sections m question. On September 23, 1903, the engineer to the defendant corporation wrote to Saunders that a Mr. Bentley, • who t owiicd a; section and house at the rear of his property, had mado objection to : the corporation making nso of the right-of-way, but on making inquiries it found that all the right he had in matter was to get access to his property, ' and that' Mrs. Blythe and Saunders were the owners, and as they had already given verbal permission it wished to put'jtself on the safe sidel : Woiild he (Saunders) say 'in Writing that the corporation had his permission? On September 30," and prior to the ■ cominission of the acts' by the corporation, Saunders, with the acquiescence of his sister, white in roply: "As 1 far as my sister and self are'concerned, you have our permission to use the right-of-way for any purpose that you may require it for, and I should be sorry if through the delay in receiving the engineer's memo, it has put the ooiincil to any inconvonience." Subsequently tho water pipes were • laid by the defendant corporation under the portion of the land which formed the right-of-way, and .were used by it for the purpose of conducting water from the corporation reservoir to the consumers of the borough. In addition the corporation metalled the right-of-way and . had ever since used it as a means of access to its 'reservoir. No memo, of transfer had been executed by Saundors and Mrs. Blythe, or either of them, in favour of the defendant corporation creating or intending to create any easement in subdivision, I, In August, 1905. Saunders transferred his interest in the land, to Mrs. ; Blytho, and on January 20, 100 di Mrs. Blythe transferred it to the plaintiffs as tenants-in-common in equal shares. At a later, date plaintiffs also acquired the. fee siihple of subsection 2(5. Early' last yearthe defendant corporation, without the knowledge of the plaintiffs, of whose purohase they were ignorant, entered upon the land and erected, telephone posts carrying telephono Wires. Tho permission given by Saunders on September 30, 1903, had riot been rc- ■ voted.-- ;

Counsel'for tho plaintiffs contended that the letter, in question, was too vague in its terms to confer on the corporation the rights it claimed to have acquired. He went to point out that the corporation claimed three rights:—(l) Right to carry. water from its reservoir under plaintiff's land to water consumers ; (2) right-of-way over plaintiff's land; (3) right to_ transmit messages by means of telephone wires - over plaintiff's land. These rights were, lio submitted;. easements or rights in the nature of easements. In support of this-contention ho quoted a number of authorities. He next urged that if tile letter conferred any right it was only a license which was' revocable, and became actiially revoked on the assignment by Mrs. Blythe and launders to the plaintiffs. It was, therefore, .contended that easement to land in Now Zealand ooiild only be created by' transfer as prescribed under Section 76 of tho Land Transfer Act, 1885. ' With regard to Section 29, of the Municipal. Corporations Act, on which the corporation reliwl it was submitted that the consent therein mentioned was the consent in accordance with the existing law, i.e., a legal instrument under the said section; otherwise the said section impliedly repealed the provisions of the Land Transfer Act with regard to easements of the nature mentioned in the section of tho Municipal Corporations Act quoted. .On behalf _of the defendants it was contended that in other statutes relating ,to gas and sewors there .were similar provisions as to consent enabling local bodies to placo pipes and drains_ through ratepayers' land without the necessity of obtaining formal documents under the Land Transfer Act, and that the consent mentioned in Section 29 of the MuniCorporations Act was not required to be given m the formal manner prescribed by the Land Transfer Act He submitted that where the statutory right of a public nature was given the Land Transfer Act did not apply, and that, therefore, no. deed or instrument m the nature'of a deed was necessary to mako such consent effective. It was noxt urged that a statutory right was the highest right of all rights, and bound not only-the person granting it, but any person to whom the property was afterwards transferred His Honour said that the casp had been very well argued on both sides.' Tho points were important, and he would take time to consider his judgment.