SUPREME COURT.—Monday. CIVIL SITTING. [Before his Honor Sir G. A. Arney, C.J., and a Special Jury.]

Daily Southern Cross, Volume XXVII, Issue 4401, 3 October 1871, Page 3

SUPREME COURT.— Monday. CIVIL SITTING. [Before his Honor Sir G. A. Arney, C.J., and a Special Jury.]

The Court resumed sitting this morning, taking the first of the special jury cases. His Honorjtook lu3 seat at 10 a.m., but on the names of the special jurymen being called over, two failed to appear, and considerable dolay occurred before the cause ctawn for heaving could be proceeded with. MoNicol v. Wallis and Others -Mr. Heslcuth appeared for the plaintiff, aud Mr. MacCormiok for the defendants. This was a trespass case, brought by McNicol against the trustees of the Wairoa Road Board. The plaintiff -was a fanner and land-owner living at Wairoa. Ha had been in occupation of two allotments for a period of eighteen years. In 18G5 Mr. Graham, then Superintendent of the province, was desirous of locating a number of immigrants at a place called Otau, near to Wairoa, but a difficulty presented itself. This was that a road from the land-ing-place to the settlement would almost of necessity have to be carried through McNicol's property. Now at that time, that is to say in the year 1865, the districts of Otau and Orangahauhau near to Wairoa were very sparsely inhabited j and the farmers, among them more particularly Mr. McNicel, were anxious for a population to settle down iv proximity to their holdings ; but Mr. Graham objected to forward immigrants to the district unless there was a proper road from the Wairoa to the settlement. It was at this juncture that Mr. McNicol came forward and agreed with the Superintendent to give the land fora road through his property, upon the condition that the Provincial Government formed and fenced it in. The Superintendent consented to this, and so the immigrants wer« placed on land at Otau, and for a long time were allowed to uao the road ; but the Government failed within "reasonable time " to fulfil its promise to fence in the land. This was not alleged to be the fault of Mr. Graham, the then Superintendent, inasmuch as just at that time he went I out of office, wheu the duty of fencing the road which Mr. McNicol had dedicated to the Bottlers fell to his successor. It was endeavoured to be shown that Wr. McNicol was himself the cause of tho road not being fenced in, as he had refused to allow any other material than hard wood to be employed for the purpose. It wag an inferior wood cut from the plaintiff's land that it was proposed to use. This however waa denied by McNicol. After a time the'plaintiff, considering that the Provincial Government had not fulfilled their part of the contract, looked upon his promise as not binding, and be stopped the road by running a fence across it. The defendants, considering the road legally a public thoroughfare, removed the fence, and hence the present action for trespass, the plaintiff laying his damages at £500 -, but the action w*as brought to test; the plaintiff* right to retain the land he had only alienated upon certain conditions, which conditions had not been fulfilled. The defence was virtually this : That, although the Provincial Government had not acted with bona fides, the defendant was not justified in ro-possessjuig himself of the land, bis course being, an action against the Provincial Government for relief for the plaintiff. M*. Duncan McNicol was the' only witness examined, in support of the action. For the defence, Mr. Kobert Graham, and Mr. Ouffus, surveyor, were examined, and -the Court then adjourned until next day (Tuesday).