RESERVED DECISION.

Manawatu Standard, Volume LIV, Issue 285, 30 October 1934, Page 2

RESERVED DECISION.

COST OF SEWERAGE

SECURITY FOR APPEAL.

Reserved judgment was delivered by Mr J. L. Stout, S.M., in the Magistrate’s Court at Palmerston North today, in the case, heard on September 11, in which Ralph E. Hewat, merchant, of Palmerston North proceeded against Mrs Dorothy Ivey Gibbons, of Lower Hutt, claiming £22 12s 6d as the cost of a new sewerage connection, and £5 general damages on the grounds that he had been disturbed in his lawful occupation and enjoyment of premises.• bought from defendant in the belief that the property was properly connected with the sewerage system. He alleged that lie had been induced to enter into an agreement for purchase on this understanding. At the hearing Mr G. I. McGregor appeared for plaintiff and Mr J. Grant for defendant. “The interference with the dram connections of the plaintiff s house with the main served is in my opinion a breach of the covenant for quiet enjoyment,” stated the Magistrate in his decision. “It imposed upon the plaintiff an obligation to expend money in order to obtain what he inferentially bought from the defendant, a house connected with the city drainage system The position seems to me to come within the law as laid down by Lord Justice Fry in Sanderson v. The Mayor of Berwick. In this it was stated i ’lt appears to us to be in o\eiy case a question of fact whether the quiet enjovment of the land has or has not been‘interrupted; and where the ordinary and lawful enjoyment of the land is substantially interfered with by the act of tlio lessor, oi those law fully claiming under him, the covenant appears to us to lie broken, although neither the title to the land nor the possession of the land may be otherwise affected.’ . “In my opinion, the Magistrate added, “the same considerations would a pp]v where the land is sold, and the subsequent interference is by the vendor, or, as in-the present case, by his successor in title. “The land is under the Land Transfer Act, and the question arises whether the covenant for quiet enjoyment implied in all conveyances of land by virtue of section 56 of the Property Law Act, 1908, applies where there is a land transfer title. Though several Judges of the Supreme Court have queried this proposition of law without determining it, it was assumed by Mr Justice Hosking that the covenant did apply, and I am bound by that decision.” v Judgment was given for plaintiff for £27, with £2 3s costs, £4 7s for witnesses’ expenses and £4 3s for solicitor's fee. On the application of Mr Grant security for appeal with fixed at the amount of the judgment, plus £2O.