COMPENSATION CLAIM

Evening Star, Issue 18810, 8 December 1924, Page 5

COMPENSATION CLAIM

DISPUTE OVER RIGHT-OF-WAY. COURT AWARDS £750. Judgment of the Compensation Court in tho case of Paterson and Barr, Ltd. (claimant), v. the Otago University (respondent) was read this morning by His Honor Mr Justice Sim. His Honor intimated that ho would first deal with the question of law involved, and would then give the decision of tho court. Mr F. B. Adams represented tho claimant and Mr H. E. Barrowclough tho respondent. His Honor said the claim was for compensation under the Public Works Act, 1908, in respect to a right-of-way overpart of section 15, block 23, taken for tho purposes of a site for tho Medical 'School. Tho right-of-way was granted to the claimant by an instrument bearing date of May 10, i 912, and registered under the Land Transfer Act. At that date the claimant was the lessee, for a term of sixteen years, of part of sections 5 and b. Tho grant in May, 1912, was to the claimant, owners and occupiers for the time being of part of section 6, its tenants, visitors, workmen, servants, and others, of full and free right and liberty during ordinary business hours of ingress, egress, and way, without horses or other animals, but with or without hand-carts, trolleys, or other light vehicles laden or unladen and solely for the purpose of taking goods to and from the warehouse of the claimant. The right-of-way ran from Great King .street, where it was 9ft wide, and at the other end was Bft Sin wide.

On October 5, 1925, the claimant agreed to purchase the fee simple of the land comprised in tho lease, and was now the equitable owner of such fee simple. The question to bo determined was as to tho rights of the claimant under the grant of the right-of-way. At, the date when such grant, was made the claimant- was occupying a shop, and was carrying on a retail hardware business. The shop on the front- of section 5 was occupied liy a tenant. On the back of section 6 were two old buildings, which arc still there. It was agreed by counsel on both sides that neither of these, buildings could be described as a warehouse. Tho position, therefore, was (hat when the grant, was made the claimant- had not on section 6 any building that could be described as a warehouse. It was contended on behalf of the respondent that in these circumstances tho claimant look nothing by the grant, and consequently was not entitled to any compensation. Tho grant, it- was argued, was intended to bo in respect of an existing warehouse on section 6, and could not- be construed as extending to any warehouse which might be erected thereafter on section 6. On behalf of the claimant it was contended that, a.: there was not any existing warehouse, the grant ought to ho construed as being intended to apply to a warehouse to bo erected on section 6, and evidence was given as to the warehouse and shop proposed to be erected by the claimant on the back part Of sections 5 and 5. His Honor said tho rights of the. parties had to he ascertained from the words of the grant. In construing these words the court was entitled to take into consideration (he circumstances existing when the grant- was made. After quoting similar cases. His Honor said that in view' of the fact that there was no warehouse on any part of section 6 in May, 1912, tho only nasonable conclusion was '-bat when the grant was made the parties must have intended to create a right-of-way in connection with a warehouse to be erected in tho future. It was only by construing the grant in this way that any effective operation could bo given to it, and (bat, he thought, was how it ought- to be construed. There was a further difficulty in connection with the claimant’s case. This arose from the fact (hat under the grant tho dominant tenement was part of section 6, while the proposed warehouse would have to be erected on section 5 as well as on section 6. The law was that tho owner of a right-of-way could not in general use the way for the service of other tenements other than the dominant tenement. It seemed to him, ho.vevm, that oven if tho grant could not he construed in the circumstances as extending to the whole warehouse, the claimant would have been entitled, at any rate, to use the right-of-way for tho purpose of conveying goods to tho part of the warehouse standing on section 6. The matter was not- door, but tho uncertainty as to the exact rights of the claim mfc under the grant did not justify him in saying that tho claimant was not entitled to any compensation. It was obvious, however, that the doubt in connection with this point and also in connection with the uso of electric motors ought to he taken into consideration in doteiminiug the amount of compensation to he awarded to (he claimant. His Honor then read the award of the court, which was that the respondent pay to the plaintiff the sum of £750 as compensation in respect of its claim. As the compensation awarded did not exceed one half of the amount claimed, the claimant was not entitled to recover any costs Hie fee of each assessor was fixed at £l2 12s, and each party was to pay the fee of its own assessor.

The award of the court was a unanimous one.