SEAFORD COAL COMPANY.

Golden Bay Argus, Volume XII, Issue 46, 14 April 1910, Page 4

SEAFORD COAL COMPANY.

ACTION CONCERNING A TRAMLINE. JUDGMENT FOR DEFENDANTS. His Honour Mr Justice Williams gave his reserved judgment at Wellington on Tuesday of last week in the Supreme Court action the Seaford Coal Company, Ltd., and another v. John Shaw and another. The action was one for the specific performance of an agreement for the lease of land for a tramway. The action was heard and the evidence taken before Mr Justice Denniston at Nelson, but the further hearing was directed to be at Wellington. In order that plaintiffs might work a coal field, an agreement was entered iuto on 19th September, 1905, and it was agreed that defendant should .permit one of the plai Miffs, E. G Pilcher, to lay a tramway over Shaw’s land. This agreement was superseded by a later one, dated 23rd May, -'907. The lease was to be for forty-two years, the consideration being an annual payment of £SO. It was contended by the plaintiffs that the effect of reading the two documents covering the respective agreements was to show that the term oi 42 years was to commence from the 19th Sept mber, 1905. His Honour did not think there was any foundation for this contention. The right given by the agreement of i9°s was a present light to immediately enter on the land and construct tramways. The right given by the agieemeut 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 be constructed had been ascertained. The effect of the agreement of 1907 was to rescind the agreement of i9°s> an N ra *- e so far as the grant of a right to place tramways on the land for twentyone years, and as to the obligation on Pilcher to pay a tonnage rate for coal carried on them. 1 he fact that the agreement for a lease in 1907 could, not be enforced did not prevent that agreement operating as a recissiou 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 of I 9°s> but for a lease under the agreement ot 1907. Continuing, his Honour said : «< There were several 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 stronelv of opinion, however, that the whole conduct of Mr Pilcher was such as to disentitle him to feiief by way of specific perfor-

mance. ... Mr Pilcher, having ihe agreement of 1905, applied to the country for tramway rights, which apparently would have imposed an additional burden on Mr Shaw. Then, on the 17th of January, 1907, Mr Pilcher threatens that it Mr Shaw- will not modify the terms of the agreement of 1905, and sell him a piece of land, he will apply to have the laud taken under the Public Works Act. The very same day, and without informing Mr Shaw, lie writes to the Minister of Mines, making application under the Coal Mines Act tor land to be taken under the Public Works Act for 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 he has not contracted to give. When the agreement of 1907 was signed there is 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 plaus Mr Shaw went to England immediately after he signed the agreement of May, 19°7> but returned at the end of October in the same year. Mr Pilcher had done nothing whatever on the laud from 1905 onwards. It was not till August 1908, that Mr Shaw was made aware of the proceedings to take the land. He took steps to object, and at the hearing before Mr Vickermann, in November, his objections were sustained. If Mr Pilcher had intended to rely on the contract, he could, at any rate, have commenced proceedings in October, 1907, when Mr Shaw returned from England. Instead of doing that he continued the proceedings that he had started behind Mr Shaw’s back for the purpose of compelling Mr Shaw to give him something other than the contract. In those pioceedings Mr Pilcher treated the document of May, 1907', not as a contract, but as an offer which he would not accept. ’ ’ Judgment was given for defendants, with costs as if £6OO had been claimed.