COURT OF APPEAL

Dominion, Volume 14, Issue 246, 12 July 1921, Page 5

COURT OF APPEAL

RIGHT OF EASEMENT CLAIMED. The Court of Appeal yesterday heard an appeal from a decision of His Honour Mr. Justice Salmond in relation to the right of easement over a certain section near the Pakauo stream, the boundary between the city of Wellington and the borough of Onslow in 1903. The case had originated in a claim by the City Council against the Public Trustee (as executor of tho will of' the late Charles Cottle) and Robert M'Donald and the District Land Registrar, on a declaration that the plaintiff corporation was entitled to the transfer of certain rights of easement for the piece of land, situated in Tinakori Road, sold by the Public Trustee to M'Donald. It was stated that the corporation had an agreement from the late Charles Cottle nnd others in which they consented to allow batter to be thrown on the land, and a drain and culvert extended on it. The corporation claimed that they had a right of registrable easement of the rights claimed. His Honour’s interim judgment was to the effect that the corporation had no legal right of easement, that the rights under the agreement amounted only to a mereriicense, and that the caveat lodged by the corporation against the land must lapse. Tho Public Trustee and M'Donald were each allowed .27 7s. costs. Yesterday Mr. O’Shea appeared for the appellant council, Mr. G. G. Rose for the Public Trustee, and Mr. 0. C. Mazengarb for M'Donald. Mr. O'Shea contended that whenever there was an equitable right the Court should enforce it by ordering the person granting it to enter into a legal deed. He asked for judgment on the ground that the contract granting an easement offended the rule against perpetuities. Mr. Mnzengnrb maintained the agreement was not binding' on M'Donald ns a purchaser without notice of it, because It was a mere license on personal conduct. If it gave the corporation right over M'Donnld’s land, then the Tight offended tho rule. After hearing Mr. O’Shea in reply, the Court reserved its decision.