SEAFORD COAL COMPANY.

Evening Post, Volume LXXIX, Issue 79, 5 April 1910, Page 25

SEAFORD COAL COMPANY.

* ACTION CONCERNING A TRAMLINE. JUDGMENT FOR DEFENDANTS. His Honour Mr. Justice Williams gave hiii reserved judgment to-day in the Supreme Court action the Seaford Coal Company, Ltd., iAd another v. John Shaw and another. The action was one for the specific fjer forma nee of an ngreement for the ease of land for a tramway. The action was heard and the evidence? taken before Mr. Jus-lice Denniston at Nelson, but the further hearing was directed to be at Wellington. In order that plaintiff* might work a coal field, an agreement won entered into on 19th September, 1905, and it was agreed that defendant should permit one of the plaintiffs, E. G. Pilcher, to lay a tramway over Shaw* land. ThU ngreement was supersede J by a later one, dated 23rd May, 1907. The lease was to bo for forfy-two years, the consideration bomg an annual payment of £50. It was contended by the plaintiffs that the effect of reading tho two documents covering the respective agreements was to show that the teun of 42 years' was to commence from the 19th September, 1905. HU Honour did not think there was any foundation for this contention. The right given by the agreement of 1905 was a present right to immediately enter on the land and construct tramways. The right given by the agreement of 1907 gave no present right to enter on the land and construct tramways, but a right to a lease in the future, when the land over which the tramways were to bo constructed had been ascertained. The effect of the agreement of 1907 was to rescind the agreement of 1905, at any rate so far an the grant of a right to place tramways on the land for twenty-one years, and as to the obligation on PUcber to pay a tonnage rate for coal carried on them. The fact that the agreement for a lease in 1907 could not be enforced did not prevent that agreement operating as a recihrion of the prior agreement, and the plaintiff could not now rely on such prior agreement. The plaintiffs, moreover, did not ask for the, right given by the agreement ot 1905, but for a lease under the agreement of 1907. Continuing, his Honour said :- "TJiere were cevcral other grounds on which specific performance was resisted, but I do not think it necessary to come to an absolute decision on any of them. I am strongly of opinion, however, that the whole conduct of Mr. Pilcher wan sucl\ as to disentitle him to relief by way of specific performance. . . . Air. Pilcher, having the agreement of 1905, applied to the country for tramway right.", which apparently would have imposed an additional burden on Mr. Shaw. Then, on the 17th of January, 1907. Mr. Pilcher threatens that if Mr. •Shaw will not modify the terms of the agreement of 1905, and »ell him a piece of land, he will apply to have the land taken under the Public Works Act. Tho very same day, and without informing Mr. Shaw, he writes to the Minister of Mines, milking application, under the Coal Mines Act for land to be taken under the Public Works Adfor a railway line between his mine and a proposed shipping place. Having made a contract with Mr. Shaw, he thus takes steps to bring the law to bear upon Mr. Shaw, in order 'that Mr. Shaw may be compelled to give something which ho has not contracted to give. When the agreement of 1907 was signed there n nothing to show that Mr. Shaw was aware of the proceedings which had then been initiated behind his back. These proceedings were continued by Mr. Pilcher's letter of the 4th October, 1907, to the Minister for Mines, forwarding plans. Mr. Shaw went to England immediately after he signed the agreement of May, 1907, buC returned at tho end of October in tho same year. Mr. Pilcher had done nothing whatever on tho land from 1905 onwards. It was not till August 1908, that Mr. Shaw wa« made aware of the proceedings to take the land. He took steps to object, and at the hearing before slr. Vickermann, in November, his objections were sustained. If Mr. Pilcher had intended to re"ly on the contract, he could, at any rate, have commenced proceedings m October, 1907, when Mr. Shaw returned from England. Instead of doing that lie continued the proceedings that he had btarted behind Mr. Shaw's back for the purpose of compelling -Mr. Shaw to ffiv© him something other than the contract. In tho&o proceedings Mr. Pilcher treated the document of May, 1907, not as a contract, buit as an offer which he would not accept." Judgment was given for defendants, with costb as if £500 had been claimed.