SUPREME COURT.

Dominion, Volume 1, Issue 301, 14 September 1908, Page 4

SUPREME COURT.

BARBER AND OTHERS v. PETONE CORPORATION. IMPORTANT; JUDGMENT. On Saturday morning Mr. Justice Cooper delivered reserved judgment with respect to tlio caso of W. H. I'. Barber and others (plaintiffs) v. tho Borough of Petone (defendant a), a special caso stated for the opinion of the Court under Rule 241 of the Code. Hi 3 Honour said that plaintiffs had been tho registered proprietors undor the Land Transfer Act of allotment L of Sections 1 and 2 Hutt district since January 20, 1906. For tho purposes of the questions he had . to determine it might bo assumed that the land had still a frontage to the Hutt Road. Plaintiff's title was based upon a transfer _ from Margaret Blythe and George Saunders. Tho land was when transferred to the plaintiffs subject to a right-of-way extending from the Hutt Road northwards to tho southern boundary of Lot 2 G, which became tho property of plaintiffs on', February 26, 1907. Tho fee simple, of tho right-of T way up to the dato plaintiffs acquired Lot-L vested in Mrs. Blytho and Saunders and was appurtenant to Lot 2 G which was then owned by a Mr. Bentley. Defendants appeared to have prior to September 23, 1903, obtained verbal permission from Mrs. Blythe and Saunders to uso the right-of-way in connection with tho construction of their waterworks. Mr. Bentley raised some objection to such use,: and. defendants Saim-H dcrs for his:written permission for them to , uso the right-of-way. In reply Saunders on September 30, 1903, wrote that s'o ! far, as Mrs. Blythe and himself were concerned dc- ' fendants had the' right to' use tho i:ight-of way for any purposa n;hich" thoy might' require it. _ After' "rcceipt of this fetter defendants laid under'the right-of-way water pipes for the Ipurposo of,, conducting- water from their rosorvoil' .to',consumers an; the borough. Defendants alco metalled the right-of-way, and .had'ever sinco used -jfc.as 'a means of access 'to their reservoir. The per- . mission given by ; ':MrsV : Blythe''iaiitl .iSaunacrs had not been-revoked. No, memo,of transfer was executed by tliora in.'-favour jof.stho-.de-fendants creating any easement'in tho laud. Nor had any memorial of Saundbrs's-letter or any instrument creating" any casement in favour of defendants been entered upon the certificate of title. Early in 1907 defendants without tho knowledge of plaintiffs, of whoso purchase defendants were ignorant, crected a telephone line along the right-of-way. Plaintiffs, had brought an action against tho defendants claiming an .injunction and ■ damages in respect of the laying and uso of tho water-pipes and the erection of the telephone line. After referring at longth to tho' legal points raised, his Honour answered the questions stated in tho case as follows:— Question 1. —Did Saunders's letter create such an casement or incorporeal right as to entitle the corporation to lay the water-pipes or to use tho right-of-way as a means of access to the waterworks? and question 2.—Was the consent alleged to have been given by tho letter such ft consent as to justify the' ' corporation in doing so? —Answer: It is open to the defendants to provo by parol evidence that the letter was intended to be a consent to tho defendants to place tho water-pipes under the right-of-way, and to prove that they did with tho knowledgo and concurrence of Mrs. Elythe and Saunders and acting under the consent contained in that letter place the water-pipes thore. If this is proved then tho council havo a right nndsr Section 291 of tho Municipal Corporations Act, 1900, to keep tho water-pipes there; and thereafter and so long as tho pipes aro a part of the waterworks to enter upon the land for the purpose of repairing them. No question is put in tho special case in reference to the metalling of tho right-of-way and to the legal right of the council to use that right-of-way as a passage to and from , their reservoir. Such a use does not, in my ' opinion, however, constituto the metalled way a part of the waterworks within tlw definition of ''waterworks" contained in Section 257 of tho Act, and, therefore, it is not a part of tho waterworks within Section 291. Question 3. —Did tho letter create such an casement or incorporeal right as to entitle the corporation to erect the telephone line? and Question 4.—Was tho consent alleged to have been.given by.the letter,such a consent as to justify" the corporation in erecting the line?— Answer; I am of opinion that the telephone posts do not appear to havo been within the purposes contemplated, by the council when the consent of Mrs. Blytho and Mr. Saunders was obtained. At the time they were placed oh the land'-the-plaintiffs- were' • tho registered proprietors, and it is clear that no consent was'given by them. The right of the council to keep and maintain these posts was not strongly urged at tho hearing before 'me. I answer Questions 3 and 4 No. _ Question s.—Assuming that the letter entitled the corporation to lay the water-pipes, or to use the land for the purpose of access to tho waterworks, are tho plaintiffs under Seci!w> 'k® un '?ip a l Corporations Act, 1900, or otherwise bound to allow the cor- • poration to enter upon tho land from timeto time to repair and replace the pipes, or : for the purposes of gaining access to the • waterworks (a) If they had notico'of 'the : letter when they bought tho land, or of tho existence therein of the water-pipes? (b) If . thoy had no such notice ?—Answer: Tho 'defendants havo a right to enter upon the land from time'to timo to repair tho pipes. Included in the right to repiir is the right to replaco any pipo which is out of repair. This right exists whether tho plaintiffs had, or had not, notice of tho letter. Question 6. —Has tho corporation obtained i rC i s ?i n such, letter and of tho premises and of Section 291 of tho Municipal Corporations Act, 1900, a statutory right at all times ,to _ enter upon tho strip of land, and to rcooJL^ n( ih rC i?' aco " 10 P'Pos as, and when occasion shall, require, and that notwithstanding tho Land Transfer Title held by'tho plaintiffs. Yes, on tho assumption that tho defendants can provo that tho consent meant a consent to the placino- of the pipes. ■' v Each party was ordered to bear its own costs. Messrs. Campbell and Peacock appeared tor the plaintiffs, and Messrs. Martin and Jlirk for tho corporation. WIDENING OF WILLIS STREET. - \ CLAIM AGAINST THE CORPORATION UPHELD. Judgment was also given by Mr. Justice Cooper in the case of the Corporation cf Wellington (appellants) and M'Lean and Archibald (respondents). ... - , ■ Tho facts in this case were, briefly, as followsßespondents sued tho appellant corporation in tho Magistrate's Uouro ■ for £'Jd tor extras paid by them to their contractors in rcspect of certain building operations necessitated through tho widening of' Willis Street. The magistrate found for respondents, and the corporation appealed on the ground of the legal construction of certain clauses in the deed of covenant between the parties. His Honour said the contract was entered into upon • the faith of a notice by. the . town clerk 'that tho depth taken was ten feet. Tho action of tho council in taking a slightly less "depth necessitated the extras , which the architect had certified to; and these must, in' his Honour's opinion, ho construed to bo the extras contemplated in tho deed ;of covenant, tho extra work being rendered, hccessary because of tho alteration in depth, and, therefore, he thought tho magistrate-had come to a right conclusion. .The. appeal would be dismissed, with livo guineas costs. ' " Mr. O'Sliea appeared for the appellant cor-, poration, and Mr. Dunn for tho respondents. IN CHAMBERS. Sitting in Chambers, Mr. Justice Cooper granted probatoof tho wills of the following deceased persons:—James,Bumble, plumber, Greymouth (Tho Public Trustee); Mary Jane Brown, widow, Wellington (Mr. Beero); An- . Dio Burnett, married woman, Wellington ' (The Public Trustee); John Mackenzie Campbell, Woodvillo*(Mr. Webb); Jcssio Gilmour Poole M'Kenzio, widow, Wellington (Mr. Webb); Andrew Percy, carpenter, Hastings (The Public Trustee); Susan Robb, or Susan Blott, widow, Auckland ■ (The Public Trustee) ; John Verry, farmer, Waitotara (Tho Public Trustee); and Annie Brownj widow, Wellington (Mr. Morrison).