A RIGHT-OF-WAY

Evening Post, Volume XCIV, Issue 114, 10 November 1917, Page 6

A RIGHT-OF-WAY

RESERVED JUDGMENT DELIVERED. ' Reserved judgment was delivered yesterday by his Honour Mr. Justice Chapman in the case of M. A: Maisey and W. J. Haipes, heard on 12th and 14th September last. The plaintiff alleged that, being trie owner of a certain property in Mitchelltown, bounded by a vehicular passage-way over .which defendant had a right-of-way, the defendant, by his uses of the way, deposits of soil, and non-repair, had caused plaintiff's fences to be removed from their position and her land to be flooded by storm, water and otherwise depreciated, where-, fore the grant of an injunction and payment of £250 damages was claimed. ■ The defendant denied the plaintiff's allegations, and pleaded legitimate use of ths way, which had been constructed I by the original predecessor in title; and j that no liability rested upon him to repair. In an exhaustive judgment hi 3 Honour referred to the history of the properties affected and the passage-way in question, and held that no liability devolved upon the defendant to maintain' the latter, -and that, being neither the occupier of the passage-way nor the creator of it, he. could not be held liable under the law relating to nuisance. The changes in the conditions of the way which had taken placp in the course of years could not be ascribed to the acts of defendant. Judgment was entered for defendant, with costs on the middle scale and witnesses' expenses, to be fixed by the Registrar. Mr. W. F. Ward appeared for the plaintiff and Mr. C. W. Nielsen for the defendant.