CAUSTIC COMMENT BY SUPREME COURT JUDGE

Manawatu Times, Volume LIII, Issue 6630, 8 June 1928, Page 4

CAUSTIC COMMENT BY SUPREME COURT JUDGE

IN DANNEVIRKE CLAIM FOR INJUNCTION. DAMAGES AWARDED ONLY. “I think that plaintiff 's conduct in the matter shows clearly that he only wanted money and he allowed the defendant to go on with the construction of his garage, so that when it was completed he would be in a position to be squeezed.’' . With these concluding remarks the Hon. Mr. Justice Ostler, in a reserved Supreme Court decision, has refused Charles Ericksen, baker, of Dannevirke (Mr Kight) an injunction refraining Wm. Howarth, grocer of Dannevirke, (Mr Ongley), from using a right-of-way on plaintiff's land. The injury received by plaintiff would be small, and an injunction would, under the circumstances of the case, bo oppressive, his Honour considered. He was prepared to exercise a discretion vested in the Court to award damages instead, which he fixed at £SO. The defendant, had he been reasonable, could have settled the case for £35 but he boggled at pay. ing the sum of £5 which was the amount which plaintiff lost through defendant's unreasonable refusal to agree to the removal of the case into the Supreme Court. The original claim was for £IOO damages as well as the injunction. A defence that defendant had a legal right of way over plaintiff's land, was abandoned at the trial. The facts as brought out in evidence, were that Erickson was the proprietor of certain property facing High Street, Dannevirke, and had given to a butcher named Craddock, who adjoined, use of the right-of-way concerned in tjie action, for £6O and the right to use a wall as a party wall. The defendant also, desired to use the right-of-way and to secure that advantage, sub-leased a portion of the butcher's land. Ho then ‘built a garage on his own property and used Iho right-of-way for access. He was advised that by ob* taining a lease of the butcher’s land, he would obtain a legal right to the use of This was admitted by defendant's counsel to have been unsound advice but the litter claimed that the Court had discretion to refuse an injunction and award damages in lieu thereof. His Honour acknowledged the Court’s discretion, but added that it should only be exercised in exceptional circumstances. The Court could not force an unwilling plaintiff to barter his proprietory rights for a sum of money unelss the circumstances were exceptional. However,- in the present, action it seemed that there were exceptional circumstances, for, in his belief that by leasing the butcher's paddock he could use the right-of-way, defendant had spent £4OO to £SOO on a garage. Ericksen was continually on his own premises next door and could not have failed to see what Howarth was doing. Instead ho stood by and allowed him to go on with his expenditure without warning him that he had no right to use the right-of-way. Only after the expenditure had been in curred did he assert his rights and then he was quite willing to sell those rights, but he asked the excessive sum of £IOO which defendant refused to pay. The plaintiff'admitted that so far 'he had suffered no damage and it was clear that the use of the right-of-way by defendant would occassion him little inconvenience in the future.