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A DISPUTED ROAD LINE., Issue 8043, 21 October 1889
A DISPUTED ROAD LINE.
■ • SEEKING TO CORRECT A CROWN GRANT.
In Banco this morning Mr Justice Williams delivered judgment in Regina v. Brooks, which deals with a Crown grant issued nearly a quarter of a century ago, and which it we s now sought to attack on the ground cbat tin rr- was a mistake in it, As the matter in ul special interest to county councils and other local bodies we give His Honor’s judgment in r.xtenso :
In this case tin* Ciovvn, 'moved by tlm Clutha CVunty Council, asks to call in & crown grant ismed to the defendant in 1870 for the purpose of correcting an alleged mistake in it. 1 am satisfied that on the ground of mistake alone the Court ought not now to give the relief asked for. The defendant, in March, 1864, bought the land after examining it, and after finding the survey pegs. He was shown a map in the office—probably the selection map. This map, if carefully inspected by applying a scale to the paper, shows that the western boundary of the land is not in one straight line, but in two straight lines, making an angle at a point in the boundary. This point is in no way fixed on the map, and it requires a very careful observation of the plan indeed to see there is an angle at all. This point was not marked on the ground by a peg, nor, indeed, in any way whatever. After purchasing, the defendant went on to the land, and in 1866 he fenced the greater part of the western boundary, taking bis fence in a straight line according to the only pegs ever placed there by the Survey Department—viz,, those at each end of his boundary. In 1870 the road was made by the Road Board—the public authority then representing the Crown, so far as the occupation cf the land and the construction of the road was concerned—and it was made in a straight line. Later in the same year the defendant received his Crown grant, with the western boundary given as a straight line. In 1873 there was a Crown grant issued to the proprietor on the opposite side of the road, with his corresponding boundary also shown as a straight line. In 1874 that proprietor fenced in a straight line according to his grant and according to the pegs. The record map in the Survey Office, also made up from the survey map, but by a different person from the person who prepared the Crown giants, likewise shows the boundary as a straight line and the road as straight. It is true that on the plan on the office copy of the grant a careful investigation will discover this angle, but this plan is palpably erroneous in placing the southern boundary cf the section half a chain out. ‘I he road so made in 1870 has been in use ever since. The defendant has since 1860 occupied and cultivated the laud within his fence, and has built a barn on the small piece in question, It appears that Mr Adams, who surveyed the land in 1863, intended there should be an angle at a point on the boundary, and that in Mr Adams’s field book there are data which will enable anyone with a knowledge of trigonometry to fix the point exactly. These data, however, do not appear in any public map, nor did thay ever come to the knowledge of the defendant; nor are country settlers supposed to have even that limited acquaintance with plane trigonometty which would enable them to solve right-angled triangles. I can conceive nothing more fantastiinequitable than for the Crown now to seek to rectify the grant on the ground of mistake. In such a cise it would be only if it wore clearly made out that the Crown had included in the grant land which by law the Crown could not grant that thp Court would interfere. It is suggested, on the authority of Regina v. White (Macaasoy, p, 870) that this has been proved; that the marking of the road with an angle on it on the selection map, and the sale of land from that map amounts to a dedication of the road as a highway in the exact form it is marked on the map, and that the Crown, by granting part of a highway has interfered with the pre-existing public right. In Regina v. Whiten roadwasmarked on IhosolectUnmapas lying on the boundary of the sections White purchased. It was admitted that White understood the road was so marked. A Crown grant was by mist ike issued to White of land including the road. It was held by Mr Justice Chapman that the plan having been acted upon amounted to a dedication of the road as a highway, and the grant wss cancelled on scire facias. The reason of this is plain—viz,, that purchasers seeing the road marked on the plan would conclude ('there was in fact a public right existing there, and would purchase on the faith of its existence. So here purchasers would see a road half a chain wide marked on the plan, and would purchase on the strength of it. How, however, anyone looking at the plan can suggest that any land was purchased on the faith of the road not being quite straight, I do not under stand, The evidence is clear the other way, beeauso everybody, the Crown and its representatives included, has for mure than twenty year's acted on the contrary assumption. It is really on the ground of estoppel by representation only that Mr Justice Chapman bases his decision. Tha selection map, moreover, differs from the survey map as to the point in question. The selection map ebons it a distance of 725 links from the southwest corner; the survey map 783 links. The solution in fulness of time of the triangle froir\ the data in Mr Adam’s field book now gives a distance of 780.1 links, Mr Justice Chapman’s decision is invoked to show that the marking on the selection map is a conclusive dedication of the precise land marked on it. The correction now sought is inconsistent with this contention. The odd part of the affair is that the evidence shows clearly that the alteration sought for will not benefit the public, but would s'mply put the pijbltc to expense if it were carried out. The County Council further complain that Brooks on his own land has erected a bank which sends back the water, coming across the read through the culvert recently made by the Council, on to the road. The effect of the construction of this culvert is to make it a continuation of Scott’s Creek, and to discharge all water coming down Scott’s Creek on to the land of the defendant. It lies therefore upon the Council to prove that the depression on Brooks’s land was originally a continuation of Scott’s Creek, and discharged into the river the water coming down that creek. It is not enough for the Council to show that in times of flood this depression may have originally been an overflow channel carrying water from the swamn. The Council are not sending on to Brooks’s land casual flood water from the swamp, as it was in a state of nature; hut have so arranged matters that whenever there is water running in Scott’s Creek, that water is discharged in a concentrated stream on to Brooks’s land. Unless the Council prove their right to do this, they have no ground of action against the defendant, I think there has been a distinct failure tq prove this right. Had the Crown nof been plaintiff, It is plain that such a right, if it ever existed, must have been considered to have been abandoned. The lapse of time, however, taken in conjunction with the acts cf the parties, is still material in considering the probability of such a right having ever existed. The road was made in the beginning of 1870. If Scott’s Creek had before that time crossed the road, the effect of making the road was to completely block it and turn it back, and divert it partly on to the land of Johnston, Scott’s predecessor, in title. The Road Board, the Council’s predecessors, must have done a wrongful act to Johnston, of which Johnston might have been reasonably expected to complain, and there is no evidence of any complaint. Scott, moreover, some years afterwards showed his acqtxiesoenco by enlarging the ditch along the toad while fencing, and thus affording a larger channel for the water, Scott, also, eleven years ago, made an artificial drain, and it is not unreasonably suggested that the effect of this may have been to alter the direction of the flow of the creek higher up. The Road Board, who in 1870 wore the parlies lawfully in charge of the road on behalf of the Crown, by their forming ihe road and filling up the swamp along the road JHne, have completely altered the natuial features and have destroyed what would have been the best evidence of the original state of things. Brooks ever since that time has cultivated his land across the depression, and the evidence admits that the effect of cultivation is to lower the land. It has also been proved that a greatly increased quantity of water has been turned into Scott’s Creek from the Ignd above than ran in the creek originally. The whole face of Nature hasjtherQforo been' changed, and mainly through the action of the representatives of the Crown. If any water originally eame over Brooks’s grqund the formation of the road stopped it, and encouraged him to cultivate across the depression. Nor has a single witness keen called by the Grown who could say that before the road was made, when there was water in Scott's Creek, it ran down the depression across Brooks’s land. Mr Adams was the only witness called by the Crown who had been on the land in the early days. He surveyed it in 1863. When he surveyed it, however, there was no water so far as ha remembers, the weather being dry. It is notable that in the sketch he made at the time on the plan the creek is not shown as crossing the road, nor is any creek shown on Brooks’s land at all. Mr Adams now goes on the ground twenty-six years after, when the state of things is completely altered, and says he must have made a mistake, partly because his field book shows that there was a depression on Brooks’s lane) near the river, which no doubt there thon ftu4 Brill If riip note in ftia field book meant that thpro was an outlet to the creek through Brooks’s laud, it Is reasonable to suppose that with the note before him he would have sketched in the creek across Brooks’s land. I cannot ignore the evidence for the defence, which really does go back to a period beforp (he road was made, and which professes to speak of the state of things 'then
existing from actual observation. If that evidence is true, it is clear that in the natural condition of things Scott’s Creek did not go through Brooks’s land. It is not, however, fur the defendant to prove Scott’s Creek did not twenty years ago pass through his land— it is for the plaintiff to prove that it did. The action of the plaintiffs’ representatives from 1870 to 1887 has been entirely inconsistent with their present contention. They themselves, also, have caused a complete alteration of the original natural features. If, under these circumstances, and after so long a lapse of time, they now come and say we Lave been all wring for twenty years, we will uaesmne the rights that Nature originally rave us, the Court would properly demand the most conclusive evidence as to the existence and character of such rights, and that the right now asserted subs- initially corresponded with thorn both as to its nature and quantum. Certainly, much clearer evidence would bo required than the mere inference from present observation of how things stood twenty years ago, more especially when such inference has been contradicted by direct testimony. Ihe litigation is unfortunate, because it appears that if the Council had chosen to spend L 5 at the outside in cleaning out the ditch on Brooks’s side of the road from the new culvert to the river, and in putting in a bigger culvert at Brooks’s gate, the water could have been carried off satisfactorily. Judgment for defendant. Costs on lowest scale; L1615s for second day, L 6 6s for third day; disbursements and witnesses’ expenses, including proper expenses (if any) of qualifying witnesses, to be fixed by the Registrar.
A DISPUTED ROAD LINE., Issue 8043, 21 October 1889
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