COURT OF APPEAL.

Dominion, Volume 2, Issue 321, 7 October 1908, Page 2

COURT OF APPEAL.

ESTATE OF THE LATE JOHN PLDIMER. REFUSAL TO REGISTER A TRANSFER. QUESTION OF SUBDIVISION. 'When the sittings of the Court of Appeal woro resumed yesterday, the Chief Justice (Sir Robert Stout) and Justices Williams, Deniiiston, Edwards, and Chapman being present, the ease ol' Harry Plimmer versus tho District Land Registrar was taken. The facts, as sworn to by affidavit, were, briefly, as follow: —Tho late John Pliimner by his will devised certain lands fronting Plinimer's Lane. On July !M, 1908,, tho executors drew up a transfer of part Section 513 to Harry Plinnner, one of the devisees. Upon tho land in question arc two semidetached houses which have been on tho ground for many years prior to tho year 1900. These were occupied by tenants as a separate holding from tho remainder of the testator's lands. The Registrar refused to register tho transfer on tho grounds (1) that the case camo within Scction 117 of the Public Works Act, 1905, testator having rlied subsequent to tho passing of the Public Works Act, I'#.o, and his will speaking from the date of his death; and at law a devisee being a purchaser, a devise came within tho meaning of "salo" in Subsection 5 of Scction 116 of tho Public Works Act, 1905, and (2) that thero was no evidence to show that" tho subdivisions in question were . a subdivision for the purpose of salo or leasing made prior to the Amendment Act, 1900. Upon request tho Wellington City Council, by resolution, declared tho provisions of Section 117 of tho Public Works Act should not apply to Plinimer's Lane. The Minister for Public Works could not see his way to recommend tho Government to approve of the resolution, and subsequently tho Minister gave his decision that Plinimer's Lane was a public street. Plaintiff then took out a summons to compel'defendant to register tho transfer upon the ground that it did not come within tho provisions of Section 117 of the Public Works-Act, 1905. Mr. Justice Cooper, who he?j-d argument on the question, suggested' that the case should be removed into the Court of Appeal, and the parties consented to the course being adopted. \ ARGUMENT FOJI THE'PLAINTIFF. ' Mr. Beere, who appeared on behalf of the plaintiff, said that the case turned ,ori. the interpretation of Section 117 of. the Publio Works Act, 1905. That' section provided that "where land having a frontage to an existing road or street of a less width than sixty-six' feet is subdivided. int-o allotments for the purposes of sale, the owner • shall set back the frontage of th 6 land to the distance of at least 33 feet from the .centre-line of tho road or street, ■ and shall dedicate as a private-"road or' street the strip of land between the frontage line so set back and the frontago line as previously existing, and the land as dedicated shall form part of such' existing road or street." Counsel contended 'that a subdivision of the land in question was made many , years ago, and prior to the passing of the Public Works Act, 1900, and that testator's will did not create any now subdivision. About thirty years ago testator erected on tho property a number of houses for letting purposes. By his' will ho gave to his grandchildren the separate parcels of the lan :.. If it were shown that the land was subdivided prior to the coming into force ,of the Act of 1900, plaintiff must succeed, because that Act applied only to subdivisions which had taken place prior thereto. To answer the question whether testator subdivided his land, as was contended, .it ■ was necessary to ascertain what was meant by the word "subdivide." Members of the Court had held that the word'was not- a word of art, but must be used in its popular meaning. • The Chief Justice: The majority .'of .the members of the. Court have held, the very opposite. . Mr. Beere, resuming, asked what was; the meaning of-tho words- "subdivided-for the purposes of sale" if a person could not subdivide his land without a saie. Mr. Justice Edwards: I must admit that your contention is a very ingenious--'one, but its adoption would lead* to. difficulties. Mr. Beere: If the Court takes the opposite view hardship will result. Continuing, Mr. Beere submitted that testator cniild not have done more to subdivide the land without sale. Tiie Chief Justice: He might have filed a map or done hundreds of other things. Mr. Beere proceeded to contend that when the Legislature enacted Section 117 of the Public Works Act, 1905, ifc had in contemp'ation vacant land. The Act was passed to prevent the erection of slums. The Court should, he urged, hold that where a man had_ previously subdivided his . lana by the erection of houses, or other permanent structures prior to the passing of the Act of 1900, tho section in question should not apply. 'the Chief Justice asked why application was not again made with the object of having tho lane kept as a right-of-way. Mr. Bcero: Wo would prefer judgment in our favour. Mr. Justice Denniston: This is a very special case, and I think in the circumstances the Covernor-in-Council might elect not to be bound hard and fast by the provision. Mr. Beere went on to say that tho provision in question, was futile. The Chief Justice:. In my opinion tho Act is one of the most beneficent that has ever been passed. Mr. Beere, continuing, said that if tho provision remained on the 1 statute-book for 100 years there would not'bo one street in Wellington which had been - widened by its operation. All that could" be • obtained through the operation of the Act would be bites out of the streets. . • Mr. Justice Denniston: Your argument is no doubt exceedingly strong, but it is thrown away hero! You should address it to Parliament. (Laughter.) Tho Chief Justice: You are asking us to legislate. Mr. Beere: No, for an interpretation of an enactment. Mr. Justice Denniston: With a slight loaning against the Government! In conclusion, Mr. Becrc stated that plaintiff was compelled to bring the case, for, if he had subdivided, the corporation would have refused to have paid him any compensation in respect of the land given for street purposes, oil tho ground that lie need not liavo done so. Counsel asked 'that his client should not he required to pay costs if the judgment of tho Court were against him. REPLY ON BEHALF OF DEFENDANT.; Mr. M. Chapman,.K.C., for the defendant, submitted that in order to take tho case out of the statute there must liavo been a subdivision into allotments for the purpose of salo before the coming into force of the Act of 1900. It was necessary to show not only that tho land was leased, but that the land was, on the passing of tho Act, still under leases, the term of which was 14 years. Supposing the leases expired at- any time after the death-of the testator,, the land came back undivided. The law prevented land going direct' by will to the devisee, and the trustees were now making the'subdivision.' . Air. li. Bell, who followed on the same side, contended that, as a right-of-way was laid off through the land, and,'as the making of a right-of-way had since 1&76 been forbidden under the Municipal Corporation! Act, the subdivision was not in fact a subdivision. Therefore, the subdivision must be taking place at the present time. ' JUDGMENT RESERVED. . . After deliberating for a few minutes, ,th« Court intimated that it would take timo to consider its judgment-.

The sweet girl strolled along the block. ■ The cheeky dudo remarked:. "Ahem!" .' Not dreaming of tho smlden shock That would reward his stratagem! The maid remarked, with humour grim:' "Your cough seems bad to-day! I'm su ro You'd best take this!" and handed him A bottle of Woods's Great Peppermint Cure.