CLAIM FOR COMPENSATION.

Mataura Ensign, 30 November 1912, Page 2

CLAIM FOR COMPENSATION.

LAND FOR RAILWAY PURPOSES. PROPERTY AT GORE. His Honor Sir Joshua "Williams sat at 10.80 a.m. yesterday at the Invereargill Supreme Court together with two assessors, Messrs J. H. Reed and J. H. Smith, when J. E. Humphries, of Gore, proceeded against the Minister for Railways 011 a claim for £SOO compensation based on the Department's action in taking certain land at Gore for railway purposes.

The claimant was represented by Mr D.-L. Poppelwell, of Gore, and Mr W. Macalister appeared for the Department.

Mr Poppehvell said that the facts of the case were very simple. The claimant was the lessee of a property at Gore held by lease from the Otago School Commissioners. In September, 1911, lie had been notified that for the purpose* of building railway banks the Public Works Department intended to take a strip of the land, and later it did so. Ho claimed for buildings, land and damages by severance. Part of the buildings was rendered useless. As far as the lease was concerned, it had only a .short tunc to run, and was to expire 011 Slav 1, 1912. The period the lease had to run when the land was taken was a little less than six months. The lease, however, contained, a clause giving the lessee the right to claim for value for all improvements. The position from a legal point of view was that- at the time when the buildings were taken they wero in the legal possession of the claimant, and the- time the lease had to run would have to be considered. The improvements, for which £.IOO was claimed, were taken from him during his legal tenancy, and Mr Poppehvell submitted that his client had a right under his lease to their value.

His Honor pointed out that the value of the claimant's improvements could only be determined under the lease. Mr Macalister objected to the item of £75 for severance in the statement of slaim, and considerable discussion ensued, during which his Honor asked if there was any possibility of the parties coming to some agreement. Mr Poppelwell said that the claimant was entitled to receive value for his improvements from the incoming tenant m terms of his lease. Mr Macalister pointed out that at the time when the land was taken the claimant had lost his right to renew his lease, and. independent of that fact, the Land Board had decided not to relet the land. There was, therefore, no incoming tenant, the Land Board having determined the lease. His Honor asketLhow this was done.

Mr Macalister replied that notice had been served on the claimant to show cause why his lease should not be determined.

Mr Poppehvell said that such determination did not take place until three months after the Railway Department had taken over the land. All the proceedings arose subsequent to his right to claim for compensation. Again his Honor asked whether there was any possibility of the Question of the claim for severance being settled, and Mr Macalister said that if the claim of £7O for severance were waived he was prepared to waive technicalities. After consulting with his client Mr Poppehvell said that he was prepared :o waive t-iat claim, and would proceed on the basis of the value of the improvements on the land actually taken, which would leave the claim at £425. In respect of the value of the buildings evidence would he called as to their value on the land. There was a five-roomed dwelling and other buildings, besides a variety of other improvements. The land taken was about three roods and lour poles, and it had on it a plantation, a number of fruit trees, hedges and fence. He did not know if this was the right time to raise the point, but he desired to submit that the basis of eompensation for land was settled in the ease of Russell v. the Minister for Lands, where the land had been taken under the Lands for Settlement Act (Law Reports, vol. 1, page 195). The decision in the ease quoted had been appealed against, but had- been sustained. It was pointed out in Mr Justice Edwards' judgment that the claimant, by the action of the defendant, was deprived of his right of bargaining by compulsory sale. Mr Poppelwell added that a good number of persons, presumably with the instructions of the Departments had visited the house, and had practically strewed some of the walls and dug the earth away from the piles. He submitted that the value of the house should be assessed on the basis of its value to an incoming tenant. His Honor said that the Act prescribed that the value should be fixed by arbitration, and if the arbitrators knew their business they would do exactly what the Department had done. James Edward Humphries, farmer, said that he was the holder of a lease in the town of Gore. He bought the property for £4OO from Mr Macara and it was transferred to him on October 10, 1907. T'he lease was for seven years from iMav 1, 1905, at £8 10s per annum. He first heard of the land being taken by the railway when the railway engineer wrote stating that a proclamation would be issued. The proclamation was subsequently issued and possession was taken. The improvements on the land were a five-roomed house with other buildings, pump and well, orchard and garden, etc. The house could not be erected for less than £4OO, the well and pump were worth £lO, and the detached wash-house was also worth £lO. He would put the value of the hedges and trees at £3O. The £4OO he paid was for the goodwill of the lease and improvements. The witness got £1 a week for the 'house. To Mr Macalister: He believed he could have got 30s per week for the house and six acres of land. The paddocks were sown in first-class grass and a man would be able to keep a horse and a cow there. Had the place been put up for auetoin he would have been prepared to give £25 per year. The house itself might be worth los per week, and with, the land it would be worth 30s. During the time he had had it he had effected no repairs, but apart from the fact that it required repainting it was not much worse than when he got it. The witness did not think 'his claim was exorbitant, but he was of! opinion that he had made a very good j bargain. Only a few months ago he ; was offered £4OO for the building bv! Mr Kerse. The fence taken was worth ; about £3 or £4. The house was in very . fair eonditoin. and only needed painting. Believing t'hatj and that the timber was sound, lie fixed the value at £4OO.

Tie-examined by Mr Poppelwell: The Department had offered liim £125 for the house. Thomas Rhodes, builder, of Gore, saH that, it would cost about £3OO to build a house with the same accommodation ;i'- the one in f|Uestion. That included nil the buildings on the ground taken foi - railway purposes. To Mr Maealister: Ho did not know Hie aee of the house, and he would not l)e surprised to hear that it was 30

\ oars old. H iiiid .several kimls of timber in it, jsmi lie would not put white pine in a house lie was erecting to-day. Ho examined the house, and the borer was in pretty well all parts of it. He did not think that it was necessary that the house should be burned down :a the interests of public health. Kor JL'jo n could be made good for 10 years. Some of the piles—how many lie could not say —were decayed.

To Mr Poppelwell: When lie arrived at the house someone had been there ahead of him and dug round the piles. Were he selling a house he would not permit such treatment. David Robertson, builder, said that he had inspected the house and from his nspection lie would say that if £SO were spent 011 it it would last for eight or 10 years. In the borer there was nothing insanitary except that the timber might be decayed. To Mr Macaiister : Assuming that the house was in fair repair and had a quarter-acre section it should bring l()s per week. The borer was evident in several parts of the house. He did not go inside, hut bis inspection consisted of examining the exterior and looking through, he windows. 1 lie building was locked by the Railway Department and he could not get in. Hrownlow .1. Kaitt, house and lam" agent, gave evidence and estimated the value of the house at £3OO.

Mr Macaiister addressed the Bench briefly and proceeded to call evidence. William Macara said he was a resident of Gore and had lived in the house in question. He went to live in it 21 years ago and he 'had remained in it for 16 years. The house was built .'SO years ago. When he inspected the house a few days before he found it in a very bad state. To Mr Poppelwell: Although lie had been in the house for so long he was not aware that it was in anything like a bad condition. Alfred James McCredie, district engineer, .said that he knew the house which had been taken by the Department. The witness employed Messrs Andrews ami Main to value the property. The former was employed on May 27, and lie reported in June. On tile strength of his report the witness made an offer of €IOO. Subsequently, lie had a valuation made by Mr Rain, in consequence of whose report he increased tlu*. offer to i'Kio. He was now of opinion that the Department would not be justified in offering more than £IOO. In consequence of the claimant's expressed desire that he should be protected from a possible claim for damages from the tenant, lie made an arrangement with the tenant, and informed tin* claimant that he had done, so. The proclamation was issued in December 17, 'the position .so far as ho was concerned with that the tenant O'Neill was in occupation, and he allowed him to remain in occupation until May. His opinion was that Humphries was entitled to compensation to tlie extent of the value of the house a« it stood at present, and his valuation was £B4. The outside value of the original four rooms was £2-10. To put. the house in order and to replace rotten material would cost, as near as he could get at it, £142. Of 26 piles he examined lour were sound, but in making out his estimate ho had allowed for all the piles, with the exception of the. 22 he saw",'being sound. At the pre.'•?nt ti>»<> he did not think the house was habitable. There u".>,s in his opini;;:; j nothing of 'iny \ ilue r::und the house, j To Mr Popuehvell: The house had a tenant in it for five months after the j Railway Department took it over, and ' it was up till then habitable. Ho had never built bouses, but he did not agree with the builders who had said the

place would ,st;i in J for Id years. Andrew **«iin, builder, >.:>itl thai, ut, the request ol Mr McCrcdie In* went up to Gore to inspect the building, and from liis observations there ho sent in an estimate of £l2,'). He was, however, not critical, ami when ho heard that the case was to conic before the court lie expressed a desire to sec the building again. He accordingly went up 011 'lucsdav, and examined the house. Although did not go into the question eloselr he tvas of opinion that the building could Im renewed for £225, provided the same material were used. Mr McCredie's estimate for repairs was, he thought, excessive. After inspecting tin; building for the second time lie valued it at .£94. John Sniaill, Government valuer, with I<3 years experience, gave evidence to the effect that he had inspected the building that morning and had estimated it at £BO. To Mr l'oppelwell: He valued it some Jittlc time ago for the purpose of rating, and then lixed his estimate at £IBO. On the latter occasion he based lllS \ illlliltioil on tile olltM'lc JUHM'iU - - anee of the house. After consulting with the assessors tor nearly an hour his Honor ordered that the respondents should pay £IOO in full settlement of the demands. The assessors were awarded £5 each, and no costs were allowed on either side.