COURT OF APPEAL.

Dominion, Volume 2, Issue 332, 20 October 1908, Page 9

COURT OF APPEAL.

YESTERDAY'S PROCEEDINGS.

RESERVED JUDGMENTS. The sittings of'tlio Court of Appeal were resumed yesterday, tlio Chief Justice (Sir Robert Stout) and Justices Williams, Edwards, and Chapman being present. Fpur reserved judgments were delivered.

QUESTION OF SUBDIVISION.

HARRY PLIMMER v. DISTRICT LAND REGISTRAR. JUDGMENT FOR THE PLAINTIFF. Of considerable importance to owners of land fronting streets of less width than 66ft. was tho judgment of tho Court with rospect to tho case of Harry Plimmer versus tho District Land Registrar. Tho facts in this case wore briefly as follow Section 117 of the Public Works Act, 1905, provides that where land having a frontage to an existing road or street- of a less width than sixty-six feet is subdivided into allotmonts for the purposes of sale, tho owner shall set back tho frontage of the land to tho distance of at least 33 feet from tho centro line of the road or street. By his will the lato John Plimmer devised certain lands fronting Plimmer's Lano. Tho executors, on July 20, 1908, drew up a transfer of part Section 513 to Harry Plimmer, one of the devisees. Upon tho land aro two semidetached houses which ■ liavo been on the ground for many years prior to tho year 1900. Those wero occupied by tenants as a separate holding from the remainder of the testator's lands. The Registrar refused to register tho transfer on tho grounds (1) that the caso came within Section 117 of the Public Works Act, 1905, testator having died subsequent to tho passing of tho Public Works Act, 1900, and his will speaking from tho dato of his death; and at law a.devisee being a purchaser, a devise caino within tho meaning of tho Act, and. (2)' that there was no evidence to show that the subdivisions in question wofe a subdivision for tho purpose of salo or leasing made prior to tho Amendment Act, 1900. Plaintiff now sought an order to coiiipal defendant to register tho transfer upon tho ground that it did not come within tho. provisions of the section. AFFIRMATIVE JUDGMENTS. Mr. Justice Williams said the circumstances of tho caso wero peculiar, and lie was not satisfied that any land of tho testator within tho meaning of that word in Section 117 of tho Act had been subdivided iiito i allotments. Tho Court had held in Peers v. M'Menainin that tho word "land" ill tho section referred to ail area of land having physical Unity, and that physical unity of area was the only teat as to whether the case came within the Act. The different pieces of land had been throughout as completely separated from each other as houses in a row of houses wero separate. Suppose a row of houses belonging to ono owner, but let to separate tenants for many years before tho Act of 1900, surely tho "woi'd "land" in Section 117 would apply to tho land occupied by each hoiiso and not to the aggregate of tho land occupied by all the houses? If that wore not so, and the houses abutted on a street less than 66 feet wide, tho owner would be prevented from selling tho houses separately at all, becauso ho would have to pull them down before lie could sell any part of tho land on which they stood. Neither tho words nor tho spirit of tho Act mado it necessary to arrive at such a conclusion.

It was, his Honour continued, his'opinion that Section 117 of tho Public Works Act, 1905, did not apply to gilts by will. An executor was tho owner of the foe simple as a trustee, but qua the beneficial owner ho was a bare trustee. _ Tho effect of the will was to vest an equitable estate in fee in the several devisees in tho different parcels 'devised to them. The several, devisees had the right ■to get in the leg;al cstato from the executor. The getting in a baro legal cstato from a trustee was not, in his opiifion, a disposition by the trustees within tho meaning of Subsection 6 of Section 116. Tho trustee, who was by that section included in the definition of owner, was n trustee having a power of disposition and exercising that power. He thought, there, fore, that tho Registrar should bo ordered to register the instrument in question. Justices Denniston, Edwards, and Chapman concurred.

CHIEF JUSTICE DISSENTS.. Tho Chief Justice (Sir Robert Stout) held that tho District Land Registrar had acted l'ightly. Discussing tho first question whether tlio word " salo ". included a disposition by will, he said ho failed to see why a testator should by a will bo allowed to disposo of land ho could not disposo of by transfer. He saw no niischifi? nor difficulty in carrying out the statuto to the. very letter. Suppose tlio testator had transferred by deed tlio lot he transferred by will reserving to himself a life interest and a power of revocation, could it bo said that such a deed would not havo been a "sale" within the meaning of Subsection 6 ? And yet tho transaction would have had the same effect as his will had. Or, i&pposo ho had dedicated tho land and executed a deed in escrow—not to havo effect until his death. Would tlioro have been any difference in effect to his execution of his will? To suggest that the effect of the peremptory provision of the Act would bo got rid of by such instruments without complying with the statute or widening tho street was surely going beycad the clear definition in Subsection I!. Ho therefore failed to see anything in tho context that modified or limited tho definition of "sale" given in tho statute. With respect to tlio second question, had tliero been a subdivision before October 20, '1900, and also before tlio will was made? His Honour said that what was done by tlio. testator was not really a subdivision of his estate in terms, of tlio section. The subdivision for purposes of sale beCamo complete when the transfer or plan showing a subdivision and a sale wore proved. Tlio using of a prior subdivision made not for the purposes of salo and making it a subdivision for tlio purpose of salo would, in his opinion, bring tlio act of the owner within tho statute. Tho owner mndo no legal subdivision of his property into allotments till his will operated. Ho,divided his property ono day and could havo altered tho subdivision the next. Tho answor to the question must unquestionably be " No."

Tlio ltegistrar was, therefore, ordered to register tlio transfer and the cost of both parties to Ijo taxed as between solicitor and client were ordered to bo paid out of the Assurance Fund.

Mr. Bcerc appeared on behalf of the plaintiff, and Mr. M. Chapman, K.C. (with him Mr. W. H. D. Boll) for the defendant. /

KILBIRNIE TUNNEL CASE.

J. J. BOYD v. HATAITAI LAND COMPANY.

JUDGMENT FOR THE APPELLANT. Liability for a donation to a contribution towards the cost of tho Kilbirnie tunnel was the point in dispute in tho caso of John James Boyd, builder, Kilbirnie (appellant) v. the Hataitai Land Company, Ltd. (respondents). Shortly put, the facts in this caso were that tho Hataitai Land Company agreed to pay to the City Corporation £10,000 towards the cost of the Kilbirnie tunnel, other land-owners in Kilbirnie having previously iigreod to contribute towards the sum at tho rate of Is. per foot of frontage. After tlio tunnel had been constructed, Boyd, one of thoso who had promised to contribute, refused to pay, on the ground that tlio tunnel was to be' a tunnel for tho purposes or a tramway and a, footway, and, as 110 footway was made, tlio tunnel constructed was not the tunnel towards tho cost of which ho had agreed to contribute. 111 February last tho company brought a suit against Boyd for £27 !)s. 7d., and Mr. Justice Chapman, who gave judgment for tho company, held that Boyd and tho other contributors had substantially acquired what they had bargained fori Tho appeal was against thai judgmont.

The Chief Justice said the important question in the case was what was the subject mutter of the agreement made between the parties. Tim words of the lirst recital in the agreement were, "Whereas a. tunnel under tile town belt connecting Kilbirnic Ward with the western boundary .of the town belt, to bo constructed by tho Wellington City Corporation for the purposes of a tramway, is projected." The deed witnessed, "that in consideration of tho construction of tho said tunnel," the agreement was mado. Without calling in aid tho surrounding circumstances, it appeared from tho agreement that tho subject matter was (1) "a tunnel,'' (U) a tunnel under tho town belt, (3) a tunnel connecting Kilbirnio Ward with tho western boundary of the town belt, (4) a tunnel to be constructed by the Wellington City Corporation, (5) a tunnel for the ptirppsesi of a tramway, (G) a tunnel that was then projected. Tho respondents had contended that any tunnel constructed under tho town belt that would bo available for the purposes of a. tramway was tho subject l matter of tho agreement. It was not necessary to invoke tho aid of tho extrinsic ovideneo further than to inquire was there a tunnel projected, and, if so, what was its character? Thero was, wlion the ovideneo was admitted, no doubt what tho projected tunnel was. It was a tunnel of a particular kind, namely, olio described by tho engineers of tho projectors as being largo enough to have a footway separated from tho part to bo used for tramway, purposes "by wrought-iron railing or grille." I'lans and ■a, description of tho tunnel had both been prepared. The projected tunnel was to fullil two purposes. One purpose was for a tramway, and tho other wn.-j for a footway. Tho tramway was no doubt tho. most important matter, but ho was <A opinion that it was clear that tho tunnel that had to bo constructed had not been constructed, for it could not be used by foot passengers. Another kind of tunnel had been substituted, and thereforo there was a total failure of 'consideration, just as if a person agreed to build a three-masted schooner, and tendered in performance of his contract a schooner of two masts and of a smaller size than tho one contracted for. Ho did not think tho Court could read the recital as if tho descriptive words "is projected" were struck out. . In his opinion, appellant was entitled to succeed.

Justices Williams, Denniston, and Edwards came to tho same conclusion.

The appeal was allowed with costs on tho lowest scale in the Court of Appeal, and costs in tho Supremo Court oil tho lowest scale.

Mr. 1). M. Findlay appeared on behalf, of appellant, and Mr. Hadfield for tho respondents.

QUESTION OF DEDICATION

WAIROA APPEAL ALLOWED. Judgment was next given in tho case of Jessio Aitkenhcad Stewart (appellant) v. the County of AVfliroa (respondents). Appellant in this case was the owner of a block of land in tho Wairoa district, bounded on ono side by a county road, on tho other side or which ran tho Nuhaka River. Some thirteen years ago tho river washed away a portion of tho road. After consultihg appellant, tho county formed a wheel track over her land and the track whs uSed by tho public without- objection by appellant or her husband for many years. In 1903 tho county caused tho deviation'to be properly formed and metalled, and sinco that time it had been used as a public thoroughfare. Last February, however, tlio appellant claimed that tho road had not been taken, by tho. county, and that it was still private property. Slio placed across the road a feiioc, which tho county caused to be removed. Appellant then brought an action for trespass, claiming £100 damages, but Air. Justice Chapman found in favour of tlio county.

The Chief Justico said the question to bo determined was whether thore was any proof of dedication of n highway by the appellant. Ho thought it was clear that tho permission givon in 1895 to make a temporary track was not a dedication of tho road. If. thero was-a dedication that must arise from what was ; ,'dono and llot done, from 1003 to 1906. WasS-ifi'-fclear that in 1903 the appellant 1 intended to dedicate tho land as a road? The moro acting so as to lead persons not acquainted, with what was taking place between tho owner--and the local authority to assume tlicro was a dedication was not enough. What took place .was; in his opinion sufficient to destroy tho presumption of a dedication from user from 1903 t-o IDOG. No ripht was claimed by tho local authority, and the owner waited bccauso of his prior permission. It was his opinion that the appeal must be allowed.

Justices Williams, Denniston, and Edwards' concurred.

Tlio appeal was allowed with costs on the lowest scalo as 011 a case from a distance, and judgment was entered for plaintiff in tho Court below for £10 by way of damages with cqsts on tho lowest Scale, witnesses' expenses and disbursements.

Mr. Bell, K.C. (with him Mr! Crisp) appeared on behalf of the appellant, and Mi;. Stock . (with him Mr. Sproule) for respondents.

RIGHT OF SHIPMENT.

WATSON BROS. v. SOUTHLAND FROZEN MEAT COMPANY.

APPEAL DISMISSED. The Court also delivered its judgment in connection with tho case of Watson Bros, (appellants), Hcddon Bush, v. tlio Southland Kronen Meat and Produce Export Company, Ltd. (respondents). The facts wero that appellants sent a consignment of sheep to tlio company without giving any special instructions as to what was to bo done with them. Without further reference to appellants, the company froze the sheep and shipped them by tlio s.s. Turakina for London. Instructions had been received from appellants by the Southland Farmers' Co-operative Association, Ltd., who acted as agents for them, that tho meat was not to be shipped, but these instructions wero not communicated to tho company,/ which considered that it was bound and entitled to ship it. When it became known that tho meat had been destroyed in a fire which occurred 011 the vessel, .it wa? found that 110 insurance had been effected 011 tlio consignment. Appellants brought an action against tho company, but Mr. Justice Williams, who hoard tho case, decided in favour of tho company.

The Chief Justice said thoro seemed to him to be no evidence to warrant any claim for insuring. It was clear the appellants could not flow say tlio association was not their agent as in a former caso in connection with a previous transaction. Tlio evidence fell far short of proving that ill every contract there was implied that a notice of shipment \hiuld be given. He was, therefore, of opinion that the onus of proof cast on the appellants had not been discharged.

Justices Denniston, Edwards, and Chapman concurred.

The appeal was dismissed with costs on tlio middle scalo as on a caso from a distance, and live guineas costs 011 the motion for leave to admit further evidence on the hearing on appeal.

Mr. Myers (with him Mr. H. A. Macdonald, of Invercargill), appeared 011 behalf of the appellants, and Mr. Hosting, K.C. (with him Mr. Lillicrap, of Ijivercargill), for tlio respondents.