RIVER BOARD EMBANKMENTS.

Marlborough Express, Volume XLVII, Issue 145, 21 June 1913, Page 3

RIVER BOARD EMBANKMENTS.

AN IMPORTANT DECISION

Following is the full text of the judgment delivered by his Honor the Chief Justice, Sir Robert Stout, at the Blenheim sittings of tho Supreme Court in the case Cook v. L. and G. Griffiths :—

This is an action for the refund of purchase- money amounting to £119 paid under an agreement for sale and purchase which the purchaser claims to be entitled1 to rescind. The agreement was in writing, and the terms were that the defendant agreed to sell and the plaintiff to buy a parcel of land "containing by admeasurement a quarter of an acre more or less, being allotment 2 of Lot 2 of Section 5, Omaka." The section mentioned contains, in fact, only 30 perches. In addition to this deficiency in area, the Lower Wairau River Board has in the exercise of its statutory powers fenced off a bank constructed by the Board which runs through the property in question, and when fenced takes up about one-third of the area of the whole piece of land. Although the bank has been in existence for some time, it has only recently been fenced owing to injury to it caused by the plaintiff's pony. At the time the agreement w>as entered into nothing was said about the bank being fenced off or about the right of the Board to fence it off; nor was it stated in the contract or orally that the title of the defendants to the section was subject to the right or easement of the Board. The plaintiff, who, at the time of the agreement, had been in the district only a month, had no knowledge that such a right of the. Board existed over the land.

There is really no inconsistency between the evidence of the plaintiff andi that of the defendant. The'defendant does not assert that he informed the plaintiff in the River Board's right or power to fence the bank; and lam of opinion that the plaintiff could not be taken to have known of the existence of the right or easement. The question then arises as to whether the defects appearing in the title to tli© property aore sufficient to entitle the plaintiff to rescind the contract and claim the refund of his purchase money. lam of opinion that, talcing the first defect alone, the plaintiff' Would probably not be entitled to rescind. In re Fawcett .and Holmes's Contract (1889), 42 Ch. I>. 150, where the land was described as containing 1372 square yards, but in . reality it contained only 1033 square yards, it was held that the purchaser had got substantially what he had contracted to buy, and that the deficiency of quantity, though considerable, did not so affect the substance of what the plaintiff had bargained for as to entitle the plaintiff to rescind, and that he had to complete with compensation!. In that case the rule laid down by Tindal C. J. in Flight v. Booth, 1 Bing, N. C, 370, 377, was approved: "In this state of discrepancy between the decided oases, we think it is, at) all events, ia safe rule to adopt," that where the misdescription, although not proceeding from fraud, is in a material and substantial point so far affecting the subject matter of the contract that it may be reasonably supposed that, but for such misdescription, the purchaser might never have entered into the contract at all, in such a case the contract is avoided altogether, and the purchaser is not bound to resort to the clause of compensation." I am of opinion that the defect in title secondly 'referred to in the plaintiff's statement of claim would have of itself entitled the plaintiff to rescind. The defendant was under a duty to disclose to him the powers and existence of the River Board if he wished him to accept a title with such a defect or easement. When it is remembered that the piece of land cut off by the fences constructed on the sides of the bank is practically useless to the plaintiff, together with the fact that he got only 30 perches instead of 40, the statement in his evidence that if he had known of such facts he would never have entered into the contract must be believed.

I am, therefore, of opinion that the plaintiff was entitled to rescind the contract, and he must have judgment for a refund of the purchase money. He has agreed to set off use and occupation against interest, so the latter will not be allowed.

Judgment accordingly, with costs on the lowest scale, witnesses' expenses, and disbursements. At. the hearing Mr S. P. McNab appeared for the plaintiff, and Mr A. Rogers for the defendants.