LAW REPORTS.

Dominion, Volume 4, Issue 1125, 12 May 1911, Page 3

LAW REPORTS.

fr COURT OF APPEAL. ,TH'-AUCKLAND GAS COMPANY. ' ITS LEGAL POWERS. 'The conflict between .the Auckland Gas Company - and the municipal authorities of Devonport over the laying of gaspipes in the borough was the occasion of a case in which the Court, of Appeal gave judgment yesterday. ' : The Auckland Gas Company ■ Act, 1871 (Section 46) specifically' extends to ■ and includes'"the City of Auckland and such parts of the suburbs and vicinity thereof as lio within a radius of ten miles from a. centre at the Post Office, Shortland Street, Auckland." ■- The company in 1883 established gasworks in Devonport. These'works, which are still being carried on, were erected without reference to tho local authority which then had jurisdiction over tho area. It is impossible for ■ the company -to get a land route for pipes from Auckland to Devonport within a ten-mile, radius, and tho nearest point on the Devonport side of the harbour is 84 chains from. the Post Office in a direct line across the harbour, and some forty or fifty miles by -land. It was the above circumstances which made tho Gas Company resolve to put up the separate works at Devonport. The Devonport Borough Council, desiring to know the opinion of the Court-of Appeal as to the legality or otherwise.of these operations, proceeded under the D.e'claratarj Judgments Act. Tho questions the Court was asked to determine were:—

Whether .the Auckland ■ Gas Company ■ Act, 1871, extends to, includes, and is in force within the Borough of Dev- • onport? ....... Jf so, is the magistrate bound, when determining the plans under Section 7, to so take into consideration the permanent levels (fixed :;by the persons having control of ,the:streot), that he must require the company to lay ' their pipes at such a depth below the '. existing surface level as will ensure their remaining below, the surface when the road is cut down to its permanent level?. • ■ •

. The trouble arose over the laying of pipes in a certain street -in ■ Devonport, the. corporation wishing them laid according'to a "permanent devel" (at which, however, some / of tho streets are not j-et laid). Tlib Gas Company wished to lay the-pipes according to the present level. ' Counsel at-the hearing were:—Mr. Martin Chapman, K.C., .with him Mr, Prenderg'ast, for the plaintiffs (the Devonport Borough Council); and' Mr. H. D. Bell, K.C.,' with him Mr. T. Cotter and Mr. Richmond, for defendants (the Auckland Gas Company). . . /The. Chief Justice (Sir, Robert Stout) in his judgment,, said it had-been'con-tended that the company had no legal power to mako a bridge or tunnel.across tho harbour,, nor to lay pipes outside the ten-mile' radius, and therefore it could not lay pipes to tho borough, and hence all the land'to the-north of the waterway should be excluded from the operation of the Act. He held that this contention' was not valid, and among his reasons for.this view, he mentioned.that the inhabitants, through their respective local authorities in the past 28 years, had assumed that Section 46 applied to their locality. Surely it was now too late for the corporation-to assert that that section should have : a meaning different ■ altogether from the plain significance of the words. ' The answer to the first question should, therefore, be "Yes." As to the second question, the defendant company had. asked that a .yes or no answer should-be given, but it was not a question to which such an answer could be given. ' The Municipal Corporations Act provided for a plan being prepared by ' all boroughs showing the permanent level to which'streets had to be made. In his opinion, the magistrate «nild not ignore that! permanent;..level, :,aod if he did not make, as he might.in his discretion make, the ■ company conform to that in laying .its pipes, he should mate..such provision as would prevent the corporation being bound to bo liable for .shifting the pipes when' the permanent level was made.,..'.'. Mr. Justice Denniston, Mr. Justice ;Iml- - Mr. , Justice Chapman, and Mr. Justice Sim (absent) gave separate written judgments. All concurred in answering the first question "Yes." Their answers to the second question varied somewhat. Mr. Bell (after all the judgments had been read): May I ask, with great'respect, what is the answer of tho Court to the second question ?_ , 1 This gave rise to a discussion' among their Honours and counsel, in the'course of which, Mr. -Bell said>that the expression of- opinion was couched in different terms by each of their Honours, and he would respectfully ask that the answers to the second question be reduced into a single statement. Ha also said that each of the answers, seemed to be No, but with different limitations. Mr. Justice Denniston: "Both the questions have been answered by every judge, and vou must find out what it means.' His Honour also observed, a little later: "Two of the members of the Court have answered 'No.' I gave a: sort of yes-no answer, like a certain, welMsnown character." Mr/Justice Edwards:-"I W the magistrate has got to take everything into consideration, and do justice to all parties.' Mr. Justice Denniston: "I say he is not bound, but may" (i.e., do as stated in the question).'' .' WILL OF THE LATE T. CARTER. ' AN INTERPRETATION. >Tho Court.of Appeal, consisting of Mi. Justice Williams, Mr. Justice Denniston, Mr. Justice Edwards, and Mr. Justice Chapman, delivered judgment yesterday in an appeal from the decision of the.Chief Justice' in tho case- ol Charles Manly Walker and another (appellants) v. Alfred John Litchfield and others (respondents). Tho cose was solely concerned with the interpretation of tho will of the late Thomas Carter, sheep-farmer, of Burleigh, Marlborough. . .At the hearing of tho appeal, Mr. T. F. Martin appeared for the appellants; Mr. 11. Chapman, K.C., with him -Mr. Newman, for the trustees; Mr. It. M'Callum for the children born during the lifetime of the testator; and Mr. J. L. Stout for the Public Trustee, and representing the children who have died since the testator's death. . Tho testator by his will directed his trustees to ' carry on - his business as a sheep farmer, and out of the net income and profits arising from the' business to pay. an annuity of £100 ;to his wife during widowhood, and an annuity, of ,£SOO to his adopted daughter, Ada Owens, during her life.. The will : further directed that, the ■remainder of the net income and'profits should be divided among.the grandchildren of the testator's late half-brother, John Walker; of Brigg. Lincolnshire, England, and the grandchildren of testator's halfsister, Elizabeth Hogg, in equal shares. ' ' "The question to be decided," said Mr. Justice Williams in his judgment, "is whether under the gift, of income grandchildren of John Walker and Elizabeth Hogg born after the death of tho testator are°cntitled'to share in it." After quoting and discussing Jarman. on Wills and | several decisions, His Honour concluded: "I think, therefore, that on principle, and on the balance of authority, the afterborn grandchildren in tho present case are entitled to share in tho income. So far I have considered tho case apart from the subsequent provisions of the will. I think that these provisions show that it was the intention of the testator that after-born grandchildren should share in tho income. There is no doubt that after-born grandchildren are entitled to share in tho distribution of the corpus Shortly put, if a testator makes a gift to the grandchildren of "A" of income, and afterwards makes n gift of a part of the corpus to those grandchildren and their issue living at the date of the distribution of tho corpus, he must mean the bequest to be for the same set of grandchildren. If it is plain that in the one case ho includes after-born grandchildren, the presumption is that ho meant to include them in the other caso alf/O. I think, therefore, that the appeal should be allowed." ' The other Judges concurred. ' Costs were allowed to both Darties, to be taxed by the Registrar, and paid out of .the corpus of the estate. The Court, of' Appeal adjourned until Frid.iy, May ID, at 9.30 a.m.