SUPREME COURT.

Dominion, Volume 3, Issue 773, 23 March 1910, Page 4

SUPREME COURT.

FIFTY YEARS OF "TRESPASS." OLD CITY STREETS. Judgment was delivered by the Chief Justice, Sir Robert Stout, yesterday, in the case of tho Mayor, councillors, and citizens versus Italia Conch,' the Government Insurance Commissioner, and Edwin Bamford. '~... The corporation alleged, when the case was heard on Friday, March 11, that Mrs. Corich was wrongfully in possession of a part of Wingfield Street. The claim was (1) for possession of the land in question, and (2) that the cer-i tificate of title be corrected by excluding therefrom, tho portion of Wingfield Street in question, and that .the district land registrar, be ordered to require the certificate to bo delivered to him for the purpose of making that correction. Tho ■ defence' was that the'land had been, rightfully included in' the. certificate of '.title, that unlawful pos:session had not been-taken,, and that the .land was not part of a public' Mghway." ■■". - •..

■' Mr; T. F."Martin,and Mr. J. O'Shea (city solicitor) appeared for the plaintaff corporation; Mr , ; Martin Chapman K.C.; • for- the district land registrar; Mr. R. C. Ktrk, for .the Government Insurance Commissioner, anfi (with Mr ]i. Lovvey) for Mrs. Corich. _In. delivering judgment, the Chief Justice said that towards the end of 180/, or early in 1&8, the sections in the neighbourhood of Wingfie'M Street were surveyed and mi into i lots, and the street l was laid off. Section 535 was Bold on March 2, 1859 and several of the purchasers in building encroached on the street. A Mr. Lindsay was the first to encroach on the and c Mr. Bolton put "out his fence in line with this encroachment. The encroachment still remained That Wingfield Street was a public street now .was not disputed. The question was whether the street should be deemed to be the land within- the present'fences, or whether the corporation should claim the street as originally pegged out, and that Mrs. Corich was in possession of part of it. -Mrs'. Corich possessed a title under tho Land Transfer Act, and, if she waa doprived of her land, she would, of course, be entitled to compensation. Tlie defence contended that Wingfield Street did not become, a public street till 1867 or 1868,. and vthat it was only then that the corporation accepted the dedication of Wingfield Street. If that were so, the question would be: What was the dediqation. accepted? Was it not a dedication of; land set out on, tho ground by the original.owners? Could it be eaiS that the unauthorised trespass of. the owners of tho lots fronting the street Varied the offer of a street that was made by the original owners. At the time of the acceptance of tho street, it could not be said that the persons who had fenced in were.other than trespassers on this piece, because the truo owners had not given them any title te.it. Therefore, if dedication was not complete, till. 1868, the dedication must still have reference to what was offered to be dedicated—a width of about 30ft.,. part of which had been fenced in by the.owners:of lots fronting the-street. It had been-contended that the dedication; accepted'was the dedication of. what .was left, between the fences-.after the. enrpachments had been made, and that, as a public .street less than. 33ft. in!'width, could not be laid off, tho, dedication of the street couldnot bo accepted. There ' was, -howover,-.in-his.Hcmour!s to accept a. street that did not conform to the requirements of the. statute,, and this power was ..exeroised .by -the corporation,-as it had spent funds on the street. His Honour was of opinion that the corporation-was entitled.to the land mentioned as ha/ring' been part of the street, and judgment, would, be given accordingly, with costs accord-, ing to scale, as if £200 ; had ' been claimed, witnesses' expenses, arid bursements, and fee for second counsel.

TWO i)tJCO. OASES SETTLED. • : A'special jury had been summoned 'to attend yesterday for the purpose of hearing the case or Ellen Lang Tucker Waddilove and William Wardrop Waddilove versus the Wellington' Harbour Ferries, Ltd.,- a claim for £1500 damages for loss of life on'the steamer Duco.: The claim was made by the plaintiffs as executrix and executor respectively of William Waddilove, chief officer:. of the Duco. ..The case-did not come on for hearing, it having been settled by the Ferry Company paying certain: compensation. Tho maximum compensation payable under the Workers' Compensation Act was £500,. and the- Ferry Company admitted liability under this Act. '..•■■ ■-• ■:■ ..;, Another special jury case-was pending in which Elizabeth. Jane Menard, widow of' Alexander. Laird Menard, chief engineer of the Duco, claimed £1600 damages. : This also has boon, settled. Messrs., Young. and ■ Tripe appeared for plaintiffs, and Messrs. Chapman, Skerrett, Wylio, and Tripp (instructed by Messrs. Findlay and Dalziell) for the Ferry Company. ~ Other compensation claims have yet to be disposed of. ' • ESTATE OF.. £149,000. - : In the caso of; Alfred John Litchfield and others versus Charles Manby Walker and others; the Chief Justice also gave judgment yesterday. The case was argued on Saturday last. It was an originating' summons, brought' for the purpose of obtaining 'a piling' of the Court upon the construction of tho will; of Thomas Carter, sheepfarmer, of Marlborough, who died in February 27, 1900, leaving real and personal estate valued at over £149,000. Mr. A. Blair appeared for the trustees ■of the willj Mr. T. F. Martin for the' grandchildren born after the testator's J death , ; Mr. R. M'Callum (of Blenheim) for the grandchildren born before, the testator's death, and still alive.; and. Mr. J. Ij. Stout for the Public Trustee, '.on behalf of the representatives .or grandchildren who ; had died since the testator's death. v. •. . ' ,

In .giving'judgment, tho Chief Justice said that the testator had declared in his will that,''after: the payment to his wifn of the amount fixed for her,and after payment of .an amount-left to an adopted daughter, the remainder of the income was to. bo divided-among the grandchildren of his lato halfbrother, - John Walker, of- Bigby, near Brigg, in the County of Lincoln,' and among the grandchildren of his ]ato half-sister, Elizabeth Hogg, in equal shares. The . question raised. ■ was whether grandchildren-born .after tho. testator's death benefited under this gift. Thore were three grandchildren in that position: James Ansty Walker, Charles Manby Walker, and Bessie Walker. It had been admitted that the general rule was that, when an immediate gift was made to a clsss, none could participate! who were not in that clsss when the gift took effect. The contention, however, was that, as "this was a gift of income and not of corpus, a different rulo must bo followed from that followed when tho corpus was disposed of, and this appeared to be a valid construction. His Honour was of opinion that these three grandchildren could not receive any benefit under the gift. They wero not grandchildren ot the date, of ,thc testator's .death. The other clauses'of the will lent lio assistance to a contrary interpretation'. The "woond point raised was whether the

representatives of the grandchildren who were alive at the time of the testator's death' but had " died subsequently could claim the shares that would have gone to the deceased if they had lived. His' Honour was of opinion that they were entitled to the shares. The parties were entitled to costs, to be paid out of the income, and to be fixed by the registrar. LOG-HAULAGE CONTRACT. Mr. Justice "Williams was occupied yesterday in further hearing of the case William Burgess and John Mitcheil versus William Vickers. This was a claim for £200 damages for alleged breach of a log-hauling contract, Mr. K. ICirkcaldio appearing for plaintiffs, and Mr. C. B. Morrison for defendant. The claim was based upon the allegation that Viokers had committed a breach of a written contract by selling the bush situated at Rcikorangi, near Waikanac, and, by so doing, put it out of plaintiffs' power to deliver the logs. There was a counter-claim for £340,. Vickers alleging that this sum was due to him as damages for plaintiffs' non-performance of their obligation to haul a minimum quantity of 60,000 ft. of timber per month, and of their breach of a covenant to repair a bushhauler. ' ; The hearing of evidence will be resumed at 10.30 o'clock this morning.