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SUPREME COURT.

WEDNESDAY, JUNE 15th., 1881. (Before His Honor, Mr Justice Riohmond. CORPORATION V. BANK OF NEW ZEALAND AND JAMES SINCLAIR. The Special Jury sworn wtre :— W. Evans (foreman), J. H. Dalton, J. Holmes, H. Hammond, J. R. Greensill, W, Clouston, R. Beale, Qeo. Graham, H. Elbeck, Jas. Dalziell. Mr Gorden Allan and with him Mr McNah for the plaintiffs, Mr Travers and with him Mr Sinclair for the defendants. Mr Gordon Allan askel whether his Honor would allow the Jury to visit the locality. His Honor said he would have no objection to the Jury visiting the place if counsel thought such a course Decessary. Mr Gordon Allan proposed that Mr Dobson should show the Jury, Mrlravers objected to Mr Dobson on the ground that he was the principal witness against the defendants. His Honor directing that Mr Dobson should confine himself to merely showing the land that was claimed. Mr Travers withdrew his objection, and named Mr James John Sinclair as his shower. The Judge, Counsel and jury then withdrew to visit the locality m dispute and on return at Mr Travers' request the witnesses on both sides were ordered out of Court. Mr McNab then proceeded to read the plaintiff's declaration, and the issues. These were seventeen m all, of which however those numbered 1, 2, 3, 4, 6, 7, 8, 12, 13, and 14 were admitted. The remainder were as under : — No. 5. Was a piece of land 10 feet m width situate on the eastern boundary of the said allotments and deabribed as forming part of Sinclair Street, and a piece of land 10 feet m width situate on the southern boundary of the said allotments, and described as forming part of Alfred-street reserved by the said deed ? No. 9. Have the public both before and after the execution of the said deed, and granting the said certificate up to the present time used the said pieces of land as a highway or street ? No. 10. Have the said pieces of land by virtue of the reservation m the said deed and certificate of title and the said user become dedicated to the use of the public, and so they form streets within the jurisdictioo of, and are they vested m tbe plaintiff as such corporation ? No. 11. Has the defendant James Sinclair, m contravention of the rights of the plaintiff and tbe public, by the deed of the 18th January, 1879, conveyen the said land to the said defendants the bank of New Zealand ? No. 15. Did the Defendant, James Sinclair, intend to dedicate to the public as and for the purpose of a common and public highway or street, the pieces of land m tbe declaration mentioned or any part of the same? No. 16. Has the said peice of land, as a whole, or as any part of the same, been used by the public as a common or public highway or street under or by virtue of any intention of the same, on the part of or by the defendant, James Sinclair, as for the purposes of a common and public highway or street. No. 17. Have the said pieces of land ever since the making and execution by the said Saxass Sinclair of the deed m the declaration mentioned by him m the actual possession, use, and enjoyment of the defendant, James Sinclair, and have they been used and enjoyed by him, and by divers other persons by his authority, as of right, without any let, hindrance or denial on the part of the public and m a manner inconsistent with any intention to dedicate tho same to tbe public as and for the purposes of a common public highway, Mr Gordon Allan, m opening up the plaintiffs' case, said that the Court was called upon to decide the ownership of two strips of land, the one running along the northern ond the other on the western side of Sinclairstreet. It appeared that m tbe year 1861 the then Provincial Govenrment decided to put a bridge over tbe Omaka River. Several sites were proposed. One was to put the bridge acroso at the Bpot now occupied by the Pres byterian Church, Mr Sinclair, however, who was tbe owner of allotments abutting on Alfred and Sinclair-streets, and a hotel, was exceedingly desirous of having the bridge made from Alfred-street to Sinclair-street. He believed that negotiations concerning the bridge had been carried on forborne time between Mr Goultcr, acting for the Superintendent of the Province, and Mr Sinclair, and that Mr Sinclair told Mr Goulter that if tbe bridge was placed across the Omaka at Alfredstreet he would widen Alfred and Sinclairstreets. This offer had influence on Mr Goulter m determining him to place the bridge at that spot. He would call Mr Dobson, who would tell them that Mr Sinclair had allowed him to measure off a strip of land 10ft. wide on the side of Alfred and Sinclair-streets ; and more, with Mr Sinclair's knowledge the fence along the two streets was removed bock so as to take m this strip, and widen Alfred and Simlair-streets. If that was not an act of dedication, be would like to know what was ! Time went on, and nothing was done by Mr Sinclair to alter his gift, until m 1876, when he agreed to sell these allotments (44 and 45) to the Bank, and as would he seen by the deed Mr Trarers said that he would object to tbe deed being put m as evidence of anything, He pontpndef} ifc had nothing whatever to do with the case, and must ask his friend not to open the matter nowHis Honor thought it would be best not to touch on the subject of the deed now, as there appeared to be substantial objection against its going m as evidence, which they would have to consider later on. Mp Gordon Allan said he would merely say that a deed was execute} be^weeq the Bank of New Zealand and Mr Sinclair, containing certain statements stiongly m support of the plaintiff's cose, and binding upon the parties. Subsequently flip Bftnfc pf New Zealand sought to obtajp a cevtifjeatp of t(tle, They would also call witnesses to prove that they always considered the strip of land m dispute to be part of Alfred-rftreet, and that they had used it as a road. There were various ways of dedicating land to a Corporation. He would now proceed to call his witnesses. F. J. Carey, deposed : I am Deputy Registrar of Peeds at Blenheim, About '76 I rereceived instructions frm the tiof.poratjoa to prepare a plan pf tfje Bprough, and ultimately prepared the plan produced. I know the portions of land m dispute. The plana show a difference jn width/ between portions of Sinclair and Alfred-streets. J have been sixteen years m B}enhejm. j made tj}e alteration because I have always understood that that strip around the sections was intended to widen the streets. I was not altogether left to my own devices m preparing the plan. During the preparation of it I had frequent confersn'oeii with the Town Clerk, Mr Sobinson, as to how I should show particular streets on the plan. I cannot say if I had any special instructions or not about the streets. The plan was furnished over a year ago, and has since hung m tho Council Chamber. I have resided m the Grove Rood many years, and have frequently passed this section, I know the sections m dispute were fenced m, but I car not say if the land m dispute was inoluded or not. Hv MrTraicrj: The conwnations -with Mr '

! ltobinsou were m order that he might give some information and instructions regarding the plan. Cyrus Goulter, deposed : I have resided m Blenheim and neighbourhood for many years. In 1861 I was Speaker of the Provincial Council. Mr Adams was the Superintendent then. During his absence m Auckland I conducted his business. At the time the making of a ward aud the putting of a bridge over the Omaka was under the consideration of the Executive CoudcU. There were three different proposals for the bridge, one over the Omaka at the Old Ford, one to put it on the present site, and another to put it over the Omaka at the end of High-street. Some steps were also taken to making a new road through the town to the site of the Scotch Church. Steps were taken to secure thatline, and the section on which the Scotch Church stands was purchased, but the scheme was not prosecuted. Whilst the site was under consideration I saw Mr Sinclair and had conversations with him concerning tha site for the bridge. He wanted to have the bridge where it is now, and said that if it was done he would widen the streets on his side of the river. Sinclair-street was the one he mentioned. The bridge was ultimately put on the site he wished. Mr Sinclair's offer was one of the reasons, amongst others, that induced us to put it there. I remember the fence of allotment 45 being put buck. By Mr Travers: I believe there was an actual contract for the construction of the bridge by the Scotch church. 1 would say that the other was the better site. Ido not know that it was abandoned on account of a flood which occurred, showing its unsuitability. There was a newspaper m existence at the time, and the proceedin s before the Bench of magistrates re. the taking of the new line of read was published m it. I believe Mr Barleyman was then clerk to the Bench, and the records were kept m the Blenheim Court House. They were subsequently destroyed m the fire of 1876. I have no remembrance at all about the sitting of the Court. I only remember that an Oder was made. I think the principal reason for abandoning the site was that I and other members of the Executive thought the present site more suitable. I have copies of the letters I wrote Mr Sinclair. I do not remember if Mr Sinclair made an offer before the Justices. I remember one magistrate saying "Here! Here j" during the course of the evidence of one witness. The " Press " office was on the western side of Grove Road, and fronting on it. The plan produced is the original plan of the borough. The word Grove Road began just below Craig's Hotel, and the southern part had no name. The words Alfred-street do not appear on the eastern side of the plan. The object of widening the streets at the point was to improve the road leadiug towards the Opawa Bridge. The first idea was to round off the corner where the shop now stands lately occupied by Mr S nolair, and then it was thought the best couree woull be to carry the roa'l from the bridge a little farther, and round off the corner of Siuclair-street, now facing the railway. Br Mr Allan : The book produced is the letter-book of the Provincial Council. His Honor ruled that no letter m it cruld be produced, the proper notice not having been given to the defendants. Mr Travers waived any objection to the readiug of the letter m question. 'I lie letter, which was then read, requested Mr Siuclair to state if he was etill willing to undertake the widening of Sinclair-street. Re-examination continued : I do not remember the answer we received. Alfred Dobson deposed: I am a civil engineer and authorized surveyor, and have resided many years m the borough. I know sections 44 and 45, and Alfred aud Sinclairstreets. It was arranged at the end of 1860 to build a bridge over the Omaka, and after some deliberation it was decided to acquire a better line of road than the one existing. In February 18(51 a line of road was acquired, and a contract for the biidge let. The road was afterwards abandoned. 1 do not know the circumstances under which the present site wa3 determined upon entirely. After that time I recollect going with Mr Sinclair, (and my impression is with Mr Adams), ami marking out an additional slip of land to be added to Sinclair street —15 links were marked out. He knew the object I went for, and carried it out by removing the fence back tbat was then there. It was removed by Mr Sinclair's own workmen, and remained there a considerable time. Mr Sinclair at that time owned the Victoria Hotel, where Millington's now stands, and the carrying of the main trunk' road near it would have been greatly benefitted. By Mr Travers : In pegging off the fifteen links I took it from the line of the fence. The width of Sinclai-street measured from the peg to the southward of the small building is 75 links. If it was 84 links instead of 70 links from the line of section 46, it would be beyond the line alleged to have been given. I set out the land m 1861 for the Provincial Government. Something was ilone by the contractor for the bridge near the present Scotch Church. Ido not know why the site was changed. The land I pegged off extended to sections 42 and 43, whioh have, since been brought under the Land Transfer Act. I think I put some linkages on some plans at some solicitor's office at Wellington, pursuant with a request of Mr Sinolair m writing. I do not think I ever saw the Gazette notice of the application to bring sections 42 and 43 under the Act. I have seen the certificate of title, it comprises the 15 links I laid off m 1861. Mr Allan proposed to put m a deed dated 1876, made between James Sinclair, Edward Pearce, and the Bank of New Zealand. Mr Travers objected, on the grqund that it hod nothing to, do with the present aotion, and was inaocurate. He quoted the case of Healey v. the Corporation of Bailey, 41 Law Journal, Chs.neery 642. His Honor said the point was as difficult a one as he had had for a long time. After some little discussion His Honor ruled that it was inadmissible for present purpoaes. Mr Allan tendered the certificate of title of sections 44 an.d 43 by fte B,anjc p,f New 2Jealanp, and th.ejr application to bring the land under tlie Land Transfer Act and the Caveal, His Honqr admitted the caveat, but not the two Qther d.ocmnents, James Gi-,-i- ! ii ; deposed ilam ft oontractor residing m „(..««, la 1801, and for some ti'isi- fift<-v T lived m Blenheim. I remember the jjiuijuoiil to put a toad through the section where the Scotch Church now stands. I owned some land on the opposite side of the river. I told the Superintendent m«, chaffing nannerth.at I wanted .■§] .OOfl- foff the lancl. Mr Sjtjolan; oppqaeq the {>r "jc toil lino of roaJ. Mr Sinclair sold me the land, au-l 1 \>y,\Jil it m order to oppose the line of mad. I remember building Mr Hutcheson's house m 186,6,, I erected, a vprpdnH for % Hvjtches,bn., and Mr Sincjajr objected fq it on, the. ground that it was qljstruct'ii|g the vjew frqm the Victoria Hotel. E[e algq sajd soipetlliflg about widening the street, oy setting land apart for widening it, I remember the feaoe being moved back. By Mr Travers — I think the fence was moved about 1860— more probably later. It was not put back m 1861. It must have been several yeara afterwards. A. G. Fell deposed — I have resided m the borough about 11 years. 1 remember the fence 011 the western side of Sinclair-street. There was a similar feuce iv Alfred -strest. During my mayoralty no claim had ever been made on it. People had the full use of the laud. I have ordered drays to be removed from 1 he strip of land nw m dispute. l'iy Mr Ttatc™— l wag Mayor up to 1879.

I know the Marlborough Express. I was not a subscriber. I couldn't say I saw a report of the Council's proceedings on the occasion of the reception of a letter from Mr J. Sinclair. I believe that Mr Sinclair, or some member of the Council — one of his party, it's all the same — moved that Mr Sinclair's offer be accepted. It may have been Councillor PresßWOod who moved it. I moved that Mr Sinclair's offer be not entertained, because I knew all about it. The carters I warnsd were the mill carters on the Picton Road. I warned them personally. Tbey were not mmy way. I never thought of putting up any notice to prevent people putting drays on the street. At the Council meeting I gave my reasons for objecting to receiving the letter. I first examined this land about four or five years ago, and then made up my mind, from what 1 heard from everyone, that it was dedicated to the Council. T cannot say I was told anything about 15 links on sections 42 and 43. I based my opinion on the coutents of the Bank deed. I never saw it, hut Mr Hull told me about it. Re-examined by Mr Allan— Mr Hull and I had many conversations together. Alfred Rogers deposed : In 187il I acted as Bank solicitor m Blenheim, and also for the Corporation. I know the land m dispute. In 1879 I prepared a conveyance from the Corporation to the Bank of this ten feet m Sinclair-street m exchange for a piece of land m Grove Road. The deeds were prepared but riovi r executed. Frank Beamsley deposed : I am a carpenter. In 1866 I was employed by Mr Gorrie m building Mr Hutcheson's store. I assisted m putting up the verandah, and remember Mr Sinclair came and told me he v,ould have it pulled down, because he had given a piece of laud on the opposite side of the road to make a good street, and he would not have the view from his hotel spoilt. Mr Robinson and he afterwards ordered the verandah to be moverl. Hy Mr Travers : There was a fence riaht opposite at the time, bnt I cannot say where it was. This concluded the case for the plaintiffs. Mr Travers said that to save time he would state that he intended to move for a non-suit on the ground that there was insufficient evidence of dedication. Hii Honor ruled that the point was one better left to the Jury to decide.

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Permanent link to this item

http://paperspast.natlib.govt.nz/newspapers/MEX18810616.2.10

Bibliographic details

SUPREME COURT., Marlborough Express, Volume XVI, Issue 138, 16 June 1881

Word Count
3,101

SUPREME COURT. Marlborough Express, Volume XVI, Issue 138, 16 June 1881

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