THE ARCADE

Evening Star, Issue 20150, 15 April 1929, Page 5

THE ARCADE

QUESTION Of PUBLIC'S BIGHT TEST CASE IH SUPREME COURT EARLY HISTORY RECALLED. Much delving into the early history of Dunedin took place in the Supremo Court this morning before His Honour Mr Justice Adams during the hearing of a lest case to decide if the.public of Dunedin has the right to use the Royal 'Arcade as a public highway. The City Corporation asked for an injunction restraining the detendant Irom obstinctin" the Arcade, this obstruction, _ tor the purpose of tlio case, being imagined to have been erected. Many pictures of early Dunedin, most of them obtained from the Early Settlers’ Museum, and early newspaper files, were on the court table for the purposes of the case, and many “ old identities,” some of who arc to bo called as witnesses, were present. The case is expected to engage the attention of the court for two days. Mr H. 111. Barrowclough appeared for the plaintiff, and Air W, G. Hay, with Air R. L. Eairmaid, for the defendant company. STATEMENT OE CLAIM. The Attorney-General, acting lor the mayor, councillors, and citizens of Dunedin, was cited as the plaintiff, claiming against the Arcade Company:— That at the time of the obstruction there was of right, and there still is, a common and public highway approximately fifty links in width extending from High street to Maclaggan street, and Irnown as the Royal Arcade,, for all persons to go and return on foot, and with horses, cattle, and vehicles of every description, at all times of the year, at their free will and pleasure That on or about October U, I9L’S, tiie defendant wrongfully obstructed the said highway by erecting gates at each end thereof, and has since that date continuously obstructed, mid is continuing to obstruct, the said highway. The plaintiff therefore prayed: (a) For a declaration that there is over the land referred to a common and public highway. (ID An injunction restraining the defendant Irom obstructing the said highway. ic) Such further or other rebel as the court thinks fit. 'THE COMPANY’S DEFENCE. The defendant claimed that there never was and is not now, whether pi right or otherwise, a common or public liigliway of any kind over the land referred to. The erection of fho > gates was admitted, but it was claimed that their erection was and is in lawful exercise of -the rights of the defendant as owner in fee simple of the said land. It was denied by the defendants that any obstruction caused was or is wrongful. OBSTRUCTION A FICTION. “ The allegation Unit the right-of-way is obstructed is admitted,” said Air Barrowclough, opening the ease. ‘•The point, however, is that there is no obstruction, and it is fiction, to allow the case to be brought. His Honour; \ou say that prior to Jthe Arcade had become a highway. Air Barrowclough; AVc say it was before that. The evidence, he said, would show dearly that in .1800 the particular sections on which the Arcade now stood were not occupied unless by one or two houses, It would not be necessary to rely on the memories of old identities to prove that, as proof was supplied by the rate book of that year, in 1861, it appeared, the • first Arcade, was built, and it was practically completed belort the end of 1801.’. His Honour: After flic influx of diggers from Australia ? __ Air Barrowclough: Acs.

'['lie first passage was only about lift or Kilt wide, said Mr Barrowclough. Jt was floored with timber, and there was no question of t rathe passing through, it at that stage Karlov, the builder of the Arcade, had two leases. •‘Was he the lessee the whole of the Iroutages?” asked KJis Honour. ‘•Pretty well.” replied Mr Barrowclough. Ju 1801 .Barley comiueumJ building on the greater part of the property under the first lease. Subsequently he acquired another lease, ami these two leases were the subject ol the first stage of the Arcade’s history from 1861 to 1866. Bor twenty-ono years from -1866 there was another lease, known as the second lease. It was a condition of the second lease that Farley should erect a substantial row of shops on ■ the upper side of the Arcade, and the shops now standing were the ones erected. Learned counsel (produced photographs to show the building. Mr Hay said the action was a friendly one. They were indebted to the newspapers for a great -deal of the Arcade history. Although the photographs and dates and the newspaper excerpts woidd he admitted, the delence would not admit their truth.

Mr Ihurowclongh; Wc will he able in prove that the dates of the photographs are correct to within three months, for we will produce a directory published by Harnett’s in 1363 showing the Arcade to be fully tenanted, and the rate book of JB6L showing that the Arcade then had only one or two shops and a dwelling on the property. In 136-i, alter acquiring a section with a 116 ft frontage, Farley opened a new Arcade. It was a vegetable mart, running parallel with the present Arcade, but it went through only about halfway from High street. The venture lasted long enough to he a failure, and was then abandoned. There was no evidence of the nature of the dwellings in that Arcade, hut they were of a “ rough-and-ready character.” POSITION IN THF “ EIGHTIES.” Mr Barrowclough went on to say that it was claimed, as soon ns the way became open, that it became a highway. He would later quote authorities in support of his contention. Learned counsel handed to His Honour a series of newspaper cuttings dealing with the Arcade and with the second lease granted to Farley in 1866, after the failure to establish a vegetable market daring the first lease. A cutting of June 18, 1866, referred to a width of 33ft between the two lines of shops, with a 9ft Toadr::iy c< wood, but strong enough for the passage of vehicles. Mr Hay: “That was merely a proposal.” Mr Barrowclough said it was contended that the Arcade was the same width to-day as it was when laid down in 1866. A cutting of October 20. 1866, referred to the Arcade as “ Fleet street,” and the change of name seemed to the plaintiff to be somewhat relevant. In 1866 it was, it was claimed, a street.

His Honour: “The, question is whether it was a highway.” Mr Barrowciongh; “ Wc claim it was tJien a highway. ami tlmrc will be evidence to show that it was so used.” In 1806, according to a photograph submitted, the roadway jvas formed,

and the people accepted the invitation to use it, said Air Barrowclough. A copy of the ‘ Illustrated New. Zealander ’ of August* 1867, contained an engraving of the Arcade, with a horse and cart in the roadway. That could be accepted as evidence that traffic was permissible. The Arcade was constantly used from 1866 to 1875 by all classes of people, on foot, on horseback, and in carriages; and not only by the people with business in the Arcade, but by the general public. Carriers used the Arcade when going out of the city to reach Alaclaggan street to take the road to Look-out Point to avoid the toll-bars in the city. Mr Hay : Docs it not seem strange that if there wore toll-bars about the city at that time the City Council did no put a toll-bar across the Arcade if it were a highway? THE ARCADE ROOFED.

Air Barrowclough said that another change came about in 1875. Buildings were" put up in brick on the easterly side. The whole was roofed across, tiie roadway taken up, and the whole intervening space was asphalted. His Honour: “Did you take up the roadway and relay it?” Air Barrowclough: “No. That, of course, was a very serious trespass.” His Honour: “It would be entirely unlawful in a public highway.” Air Barrowclough: “We say it was unlawful.” His .Honour said that it was clear, if Air Barrowdongh’s contention was correct that it was a highway, that the work was done without authority and was a serious breach of the law. Air Barrowclough said that, although unlawful, it might not have been inexpedient. A BEADLE APPOINTED. An advertisement inserted by Farley in 1875. said Air Barrowclough, called lor a “ tall, portly man ” to act as beadle in the Arcade, it was stipulated that the man “must be sober, steady, and have good references. Apparently such a man was found cclin. Another advertisement by Farley offered shops to let, and set out that the Arcade “commanded great public trallic,” that there was a beadle there to “maintain good order,” see that the premises were kept clean, and attend to the gas lights. .. . .. His Honour: “To whom did Hie beadle belong?” Mr Barrowclough appaicntlv employed by Farley.” “'But what right had he to in ter tore with traffic in a public highway?” asked His Honour. Air [lav; “I can shoiv later on that I, o ' tapped boys on the head lor misbehaviour.” ~ , Mr Barrowclough said there was o- 1denee that there was a good deal ol skylarking in the Arcade in the car , v (lavs, and it was thought advisable to have a beadle there as wcl es t o police. There was evidence that tin. police did go into the Arcade and maintain order. One of the witnesses would « nv that as a youth his companions and j u l hid under crinolines hanging outside shops in the Arcade, ind ™' chased awav by the police. \ chiculai traffic seemed to have ceased when the Arcade was roofed, but the public still maintained a right by the use - of the footway, subject to Hie possibfc ght of adjoining shop owners to <U.plaA their wares at tunes in the imR. A way could be dedicated subject lo those llr Mr Hay: “I do not admit that. THE PURCHASE POLL. The old rate book was, handed up to His Honour. .... , Air Hav: 1 ask that you will hand tiie rate book for this year under which the Arcade is rated. Air Barrowclough said the rate book for manv years had been destroyed. The city librarian had retrieved the IS6I rate book irom some rubbish set aside for burning. There was no evidence of how the property was rated. .His Honour: Is it rated as one proHay; AVe arc now rated on the fainrav separately. bi 11)27. said Air Barrowclough. the Arcade. Company submitted a proposal to the (,'itv Council that the corporation should buy tiie. property. 'lhe council actually approved of the plan to a ceitaiu extent, and a poll of Hie vatepavers was taken on the proposal to purchase. The ratepayers declined to sanction the raising ot the loan. .It seemed to be the idea of the ratepayers that the Arcade was already a public property, and that they should not pay ,(J, “M.ardlv think that was the case,” .said Air Hay. “The whole trouble was that thev considered the juice (£22.0110) too high. . Mr I>iUTowrlougli said tiie purchase of a strip of land to make a 06ft road was proposed. The council felt that, as custodians of the public right, it had to take up the matter. But the council had never passed any resolution aft'lrmin" tho Arcade to be a street or a private street. Until this morning he had been unable to find any expenditure of public money on that way. Evidence was now being searched ior that some monev was spent by the water department’in putting water mains in the Arcade. “ The. water was put lb rough by a limited company,” remarked His Honour. 'THE PUBLICS RIGHTS.

Mr BaiTowelongh said a retired inspector had informed him that the work was done and charged to the corporation. Bequests were made lor the lighting of the Arcade, but the City Council re I used, on the grounds that the Arcade had never been taken over as a street. . The whole question was, Has the public aquired the right? Hi's Honour: You do not suggest that the dedication has taken place through the .expenditure of public money? Mr Barrowclough: Only from what I heard this morning. And that evidence will be accepted only on its worth. The amount of the rates on the Arcade passage way was assessed at ;CKJ per annum. Mr Hay; The assessment was £3OO. We appealed and the arrangement of £lO was reached. “ Whatever the City Council may have done docs not prejudice the rights of tile public, as once a highway always a highway,” concluded Mr Barrowclongh. PLAYGROUND AND PROMENADE.

Robert Mason, a gardener,' residing at Walden street, Opoho, said ho arrived in Dunedin on April 16, 1862, then being two years old. He remembered the Arcade first in 1864 or 1865. As a boy be was constantly in the Arcade, as bo lived in High street, above Clark street. The passage way then was narrower than in the present Arcade, and there was no .roadway. The shops would now be called " tumblcd-down shanties.” He had a faint recollection of wooden buildings on the upper side of the Arcade, but he remembered when the brick buildings (still standing) were erected. The lower footpath and roadway were originally of wood and the footpath on the upper side was metalled. Vehicular traffic, so far as bo could recollect, always went through the Arcade. He started work in 1874 for Herbert. Haynes, and his work took him to the Arcade daily. There was a shortage of copper coins in those days, and ho had to pay a premium when obtaining the coins. The saying then was: “If you haven’t been in the Ar-

cade, you’ve been nowhere.” The Arcade was a part of the regular promenade from the old White Horse at Frederick street.

“ Yon did nob go there shopping as a hoy?” asked Mr Barrowclough. Witness: We went there to play tops and marbles, as the ground was level. Had yon even been told to stop?—We were chased out by some of flic shopkeepers for obstructing the traflic and throwing marbles up against the buildings.

Witness said lie had often seen carts go right through the Arcade. When the roof was put on, the roadway was asphalted from one row of shops to the other. Vehicles did not go through, hut pedestrians continued to use the way. Sonic ol the vehicles which went through no doubt used the Arcade for a short cut. A BARR Hill FOR A DAY.

About the end of 1875, continued the witness, he remembered hurdles being placed across the Arcade at the Maclaggau street cud. Wishing to enter the Arcade, lie pushed a hurdle on one side and tvent through. Others did tlie same, ami no one was stopped. The hurdles were away the next day. CONCERTS IN ARCADE.

A concert in the Arcade, arranged by Richard Hudson and a Air Thomson, was remembered by witness. That concert was in aid of the Benevolent, and the Arcade was closed and a charge made. Other concerts were held, hut the Arcade was not closed for them. The Arcade was at one time the most popular street in Dunedin. The case was adjourned till the afternoon.