A “PAPER” ROAD

Dominion, Volume 16, Issue 120, 6 February 1923, Page 8

A “PAPER” ROAD

UNPRECEDENTED LEGAL ACTION

HUTT COUNTY COUNCIL’S CLAIM FAILS

MERELY CUSTODIANS That the Hutt County Council was not Justified in bringing the action it did against Whiteman Bros, for possession of a porticn of a road on which it was alleged that the defendants had encroached, was the reserved decision of Mr. Justice Reed entered in the Supremo Court yesterday.

“A month after the issue of the writ,” says His Honour, “an Ordar-in-Council .. . declared portions of this road to be a Government road. If this proclamation bo valid, the jurisdiction of tho County Council is ousted over the greater portion of the parts of the road upon which it is alleged tho defendants have encroached, leaving only about six perches, valued at a few shillings, to which the claim can apply. The validity of this Ordor-in-Council is attacked f by tho plaintiffs.

. . . Whatever force there may bo in the submission as to the invalidity of the Order-in-Council cannot, I think, bo decided in these "proceedings. . . . The validity or invalidity of an Order-in-Council cannot be decided as a sideissue to a proceeding between a local body and a private peifcon. I shall, therefore, first deal with the case on tho assumption that the Order-in-Council is valid, and that the only question before the Court is the matter of six perches of land, valued, as I have said, at a few shillings, and which it is admitted is included in the defendants’ ring fence, and has been so for a period of thirty years, and, which tho defendants admit, is wrongly so included, and to which, as an actual matter of fact, they make no claim. .

Genesis of “Paper” Road. “The defendants acquired sections 362 and 363 of Block IV of the Akatarawa survey district from their father in 1902, who hud then owned it about 12 years. At the time the father purchased the property there wero neither formed roads nor fences in the valley. A. two-chain ‘paper’ road ran through it. It is doubtful if this road was ever pegged cut, but its position was known approximately. A bridle track ran along it; later a certain amount of formation was done; later a. tramline for the conveyance of timber was made along tho track. As time went on the settlers began , to erect fences, the line of these being selected according to the contour of the country and close to the formation of the road. It is stated m evidence that this was approved by the successive inspectors of roads. Unwitting Encroachments. “No one knew where the line of the road actually was, and the result is that a very'largo number of the settlors have encroached upon the road, the correct line of which has > been ascertained by survey quite recently comp'eted, in fact before this action was commenced. That-survey reveals that no less than sixteen buildings are on the true line of road between sections 355 and 3SB. Most, if not all, of these buildings are, now included m the area of the newly-proclaimed Government road. Ilie county road is by the proclamation reduced to a chain wide road, which has been resurveyed and lies generally within the boundaries of the original two-chain ‘paper’ road, but in a few places passes through private property. As twocbain roads are practically unknown in country such as this, the chain road probably represents the extreme width of tho road in the future. Mr. Graham, who was in charge of the recent survey, states that ho found very iew pegs to help him in the survey of the road, and 'I would say that it was practically impossible for a settler to find out his actual legal boundaries without having a survey made.’ Who Owned the School? “When these proceedings were commenced the survey of the road' was not completed, nor had the Oider-in-Council been made, but surveys had sufficiently far advanced to show that a' building, claimed as being upon tho:r property by the defendants and now included in the proclaimed Govornnent road, was within the boundaries of the paper road. Trouble had occurred over this building. A very old resident in the district, James Greenwood, who was born in the vallev in 1859, states he built the original whare and that he built it by permission of the present defendants on its present s'te, which it was believed was on the defendants’ land. This would be between 1897 and 19<X). In 1909 'he supplied timber for the purpose of buildinc - a room on to this whare. li.urthcr evidence shows that when the settlors required <v school the building was, by consent of the defendants, used temporarily for that purjiofe, a- working bee of settlers making certain repairs and alterations. Later on the building was let from time to time, the defendants collecting tho rent. It uas let in 1919 to roadmen employed by the plaint'ff council. The council in August, 1920, paid rent to the defendants for ono of these men, but under protest, it being then suspected that the building w-ns pifibnbly on the road. The building was further occupied bv other of the council’s v.'orkmen find the dofeudnuls sued the conn’cT for tho rent, hut we.re nonsuited on the ground that the council liad not agreed to pav the rent for these men. The. defendants then sued the foreman or. engineer, C.udby. and recovered judgment. This was towards the end of 1920. The council on April 21 19 - ’l, caused to be issued a writ in’the name of the Attorney-General on the relation of the council against the defendants claiming possession. The Attornov-General subsequent .y discontinued the action, alleging that he had been misled as to the position, and tho plaintiff council commenced toe present fiction in its own name. Action by Council Deprecated. “rt is claimed on behalf of the plaintiff council that the action is brought as a test action to ascertain whether the council has jurisdiction over the road, tint chairman of the council says: T do not tlrnk there i< anything personal in the matter at all.’ I am not prepared to accept that statement. This action hns becq brought in a peculiar form. If tho solo desire was to ascertain the legal position ail npplicnfc'on for a declaratory judgment or an injunction restrainin" the defendants from obstructing the road would raise all necessary questions. Instead of that the action is for possession and ‘that’ an account bo taken of tho rents and profits received by the defendants from tho said lands during the past six years,’ and ‘that tho defendants may be ordered to pay such routs and profits to tho nlaintifi.’ It is .difficult to believe that, if the desire to ascertain the legal position with regard to the road was the motive of the action, it should have been launched before even tlie survey was complete defining tho position of the road. The whole action savours of an

endeavour to recover the money paid for tiie occupation of flic l»uildiii>; now shown to have been within the read line. ... In my opinion, in view

of all the circiimstances of the case', it would have only been on an adverse claim being set up that the plaintiff non Id have been Justified in bringing an action of any description. Question of Possession. “But. J do not think that the plaintiff council is entitled to succeed in an action of this nature in any event, either in respect of the .six perches, or if the Crown had not intervened and taken it away from the jurisdiction of the council, in respect of the portion of the road upon which the building has been erected. It is an action for possession. The law presumes that anyone in possession of land is entitled to ho'd possession of it. It is a rule of common law that the plaint-’ff must recover ‘by the strength of his own t'tle and not bv the weakness of the defendant’s.’ Even though it js abundantly clear that the person in possession has no right to be there, still, a plaintiff in an action for possession cannot turn him out unless he can ’ show in himself a title which is —prims, facie, at all events—good, against all the world. If the person in possession can show that some third person has a better title than the plaintiff, the action fails, even though such third person has not placed; the defendant in ’The pln.-ntifl council in this case must, therg; fore, hi order to succeed prove ; ts title to the land in question The position, therefore, with regard to the land that the plaintiff council seeks to recover possession of is that the Crown is the owner of such land, but the council has the care and management of it for the strictlv limited purposes of forming, constructing, improving. repairing, .and maintaining it as a public road. That being tbc position of the council, has it the right to bring an action in its own name for possession of such a road against a person in occupation of a portion of it ? Council’s Two Remedies.

“In the present case there has been an encroachment upon the road. The Legislature privities a simple and inexpensive means of dealing- with it. .Section 145 of the Public Works Act, 1908, provides: ‘Every person who

. . .. (a) encroaches on the road by making or erecting any building, fence,' ditch. or other obstacle thereon

. . . shall bo liable to a fine not exceeding £lO for every day upon which such offence is committed-'or suffered to continue, and to a further sum equal to the cost, incurred by the local authority in removing anv such encroachment, etc.’ Prov'sion is made restricting proceedings under the section to those laid by authority of tho local bodv. There would appear io be amnle power in that section to d-al with a case such as the present, hut. in some cases there may bo a doubt as to the boundary of the road, in which case, nuiio nroperlv, the law permits the local body to hravo that line defined by n declaratory order, or there may bo circumstances connected with an encroachment or an obstruction that necessitates an injunction being obtained ; this the law also allows. There is always an ancillary remedy in equity by injunction to protect a right. An Unprecedented Action. “But these- two remedies . . . are consistent with tho rights and duties of tho local body in carrying out its special statutory duties. Tho present claim is in quite a different category. The council sues for ‘possession’ of the portion of the road. There is absolutely no precedent for a local bodv, possessing the limited rights of tho plaintiffs, bringing such an action. . . .

The plaintiffs in this case have no estate or interest in the land. Tho soil of the rend >s vested in the Crown, •and the plaintiffs were, merely custodians in charge of the Crown’s property with certain limited rights. Such rights do not constitute either an estate or interest- in tho land, “For tho reasons stated, therefore, judgment must be for the defendants with costs or the lowest scale, and I cortifv for £l5 15s. for one extra day of trial.’’