COURT OF APPEAL.

Marlborough Express, Volume XLIV, Issue 77, 7 April 1910, Page 7

COURT OF APPEAL.

A RACECOURSE CASE,

[press association.]

WELLINGTON, April 6. The Appeal Court is occupied today with a case affecting the powers of the Wanganui Jockey Club over the racecourse. They summoned certain defendants for trespassing, and the defence set up was the right-of-way acquired over the course by adverse use for a period of more than 20 years. Mr Justice Edwards nonsuited the plaintiffs on the ground that they only held a lease from the trustees of the reserve used as a racecourse, and therefore possession of the reserve was not in them exclusively, and they could not maintain an action for trespass. From this judgment the plaintiffs appealed. Messrs Skerrett and Hutton are for the appellants, and Messrs Hutchison a.nd MacKay for the respondents. Mr Skerrett contended that Mr Justice Edwards was wrong in non- j suiting the club, and should have added the necessary parties to the case and given judgment on its merits. The Court of Appeal ought now to add the parties, if necessary. He argued, however, that the palintiffs were entitled to possession solely or in common with others, in which case it was clear that one of several tenants in common could sue in trespass. There could have been no dediction of right of highway. The land was granted in 1862, and no dedication could be presumed before then. After that the trusts on which the land was granted would debar dedication. The user claimed by the defendants was permission only, and when withdrawn they became trespassers.

Mr Hutchison, for the defence, contended that the Court of Appeal could not add parties to the judgment of the Court below, but if they did so the case ought to be sent back for re-hearing. He also .argued that the lease of the land as a racecourse was ultra vires, and that the right of user had been acquired ever since 1851.

The argument was unfinished when the Court rose.