THE MAITAI ESTATE.

Nelson Evening Mail, Volume XLVI, Issue XLVI, 21 April 1911, Page 3

THE MAITAI ESTATE.

THE RECENT FENCING PROSECUTION. Appended is a fuller report cf the judgment of Mr J. S. Evans, S.M., m We action .in M>s Rjel.urrL soil. S.M., in' the ast" iV. in ""wb>.-i Mrs Richardson was eauged with cnJawfuily fencing on ;he ro. d in the Maitai: — This is a proceeding under -section 145 of "The Public Works Act, 19CS," for encroaching on a public read under' the* control and management of the Waimea County Council. The complainant is the Coun-:y Engineer, and <has the authority of the Chairman, for taking the proceedings. The defendant: is the life tenant ol the property known as the Richard so.n•-Estate.- The land (sections 11 and 14) over which the road in dispute passes was part of the lands acquired bv the Nersy Zealand Lands Company from the- Native owners about or prior .to 1842. The sections were surveyed and soldi prior to 1847. They appear on the recoid maps, of that year, and also of the year 1849 in the name of Tollemache. In 1850 the New Zealand company gave notice of -its intention to surrender its charter. In 1851 iihe New Zealand Com•pany's Laud Claimants' Act ' was passed, the preamble of which sets out t-hd history of the Company —iu brief. Under the Act the Governjnent takes over all the lands of the •Company charged wi'Jh the rights and obligations of the Company in regaid to the sale and other dispositions of land otatered- into or made by the Company. Under this Act a Commission was. set up to inquire into all fuch land claims. - In 1864 (Gazette No. S, 29/3/64. p. 23, el-aim No 576) it was proclaimed (inter alia - ) that Ralph Riehardso:i had established his title to these two sections. A Crown grant (produced) had been issued, dat«td 1K6.3. The accord maps of 1547 and 1549 had been issued dated 1563. The record maps of 1847 and 1849 show a road laid oj: through these sections partly, but not for the whole distance, on the banks of the Maitai. Thci position of this road is- approximately the position of tlie road now in dispute. The road .shown on the record maps was reproduced in the Crown grant and sketches into the grant o nly. There, is no evidemce on record ot f.ny actual -s-jrvey of this road. There is nothing to show that its Ijoundaries were ever ascertained or defined bevond its relative position along the banks of the. Maitai. There 's nothinrr in the grant excluding t ho bed of the Maitai from the land ssoid By the Company, and the Crown errant is nothing more than the com. uletion of the company's title Th« *»ed- of the river is wholly wit-hin the laiuVi granted, and there are no ■word* of severance in the grant either as to the road or the river. On the contrary, a strict construction rf fhe. grant would almost so.em to include the ioad as narf of the land because in olac-es t'he pink colouring srsually used" to denote "the boundaries .of *he land includnd. cros s both road awfl) .river. It is suggested 5n Oleminson v. Borough West Harbour 13 f«. R. 95. that such a grant issued at that period might even pass the fee

simple of the 'ioad to the grantee-. I-t is established law, a«d requires no authority that where a river passes wholly through land granted, or forms one. of its boundaries, tnat the whole bed of the river, or the bed ad medium filuni aquae as the case may be passes to the grantee. j It :s proved that for many years only a part of this road shown on the grant was used as a road. The part that was used extends from the city boundary up to near a creek known as '?Whisky Creek." At this point the track crossed the river, and went up the opposite side. The reason the ioad was. diverted across the river was because it was impossible to follow the banks rf the river on account of the bluffs and roughness of the .country. There was, however a footpath round this river-bank. This was enlarged into, a in iB6O,- and before 3 870 into a draytraek. About 13 j'ears ago the County Council formed and gravelled 3 road on the line Of this dray-track 'and approximately or. the line of road siliown on the) grant, but following the river as it then existed and not as it was in ISG3. The river in places has altered its course -sin.ee 1863 and the present road is not, \o Mme [ilae ■*.s at least, on the exact site rf the road shown on the grant, but for the most part whore the river has rot altered it- course it is ap ■proximately so. Short portions of the., ioad now in use admittedly tr'Epass on the Hails of defendant.

In order to obtain from the defendant these short pieces 'of trespass road. Mr Littlejohn, the complainant, prepared a plans-ho wing the line of road as now in use. The boundaries of the road', except the short, nieces ol trespass road, were not pegged. AH that Mr Littlejohn did was to put in traverse pegs at the angles of the present Toad, and plat rhe distance on each side of the trave.r-.fi pegs This did not in any visible way ascertain the boundaries t.f t'ke road. In- reproducing this road Mr Littlejohn look the position cf the liver as it now is, and not i'.s position in 1563. U<«. also measured tin* offset from the traverse pegs l on the .".i.-uiniptioii that he was entitled to claim this Toail to the waters' edge, in the river as it is at prt-Jse-nL. He proceeded, in, fact, to ascertain t-he positon of tH ioad as if it were :-■ river reserve under the present Act In so doing, in my opinion Mr Littlejohn proceeded on three wrong assumptions ro aiic-i-'nin 1 lie position of a road line as if was sketched into the Crown j-iant in 1563. firs', On the assumption that it was a reserve in the nature of the nre.se.. t liver reserves. Second. That, the r i verba pk was at the waters' edge and thiid, that he could take the ri-ei-in its present position and not jj> the position it was in in 1S(;3. It. is quite obvious that he proceeded on the lir.-'t of these .assumptions In'-c.-iine in- his letter of Ih-- 101 i I'> !»- ruary last he claims rlpn'an rights in icspe.ee of the road. Now : .t is miite clear that there : s a difference between a rivtv an 1 ;i ioa-1 dedicated on the b:-' :V o! :i liver. River reserves were first, created uy section 110 of the Land Act, 1892. and under no circumstances could a road dedicated by the New Zealand Lan-.H Company piior to 1547 have the. effect of a river reserve u.nder the ore-sent Act. This is abundantly

clear because, toe very object of the river reserve was to preserve t hv bed of the liver in the Crown and prevent riparian rights from arising, .if" a roadi on the banks of a rivur bad this, effect There, would have been no .necossitv for the river reserves. A mad which is only a road on tire bank of a river n Hit her affects the riparian rights nor the ownership of the bed where the- bed is wholly with'in the Grunt. Jti has been practically decided in Bkcy v. Mayor of Unned'u. 2-i. L.K.. 804-. that, there are no riparian 'right's attached to a road, liab.'i- decides that where a. grant is described as intersected by a road, the road does not diissttver the land nor amount to , a reservation of the road, but is descriptive only. Tt is also quite clear that he proceeded on the second assumption because ho swears he d.tf. Mr. Sadd, the Commissioner of Crown Laiuls fev the district, defines the riv.r bank as the no-mal banks of the river in average wet weather to be ascertained in each case by inspecting the ground. This definition, agree® with the definition given in Kingdon v. Hutt River Board, 25 "L.R.. 145, and I must accept, it. The tLifieren.cc between Mr. Sa'd.d 's .definition, and Mr. Littlejohn \s would je a very appreciable, one along the whole length of the river, and in very many places would amount to several feet. This dif. fgerenee to-r.che/s the real cpiestion in dispute between the parties. It is also clear that he proceeded ii.pon the third assumption because he reprodiiiced the road on the bank of the river as it now is. without aseertainincr the variation in the course of the river sineel 1563.

It is quite evident that the r.iver has- varied its course considerably in same Dlace.-:- at least, since ISU3. and this variation is important- in ruprodnoing the road as it is sketched- on tin! Grant. The road does not follow the river. (The Southland County Coan.ciL v. Miller, 24 L.8., 345). Jri a case- of d:s-puto of this kind where the parlies arc at arm's length, the coad tmiS't be reproduced as it wa« in ISG3, unless thrlrc are other circumstances- t'hat would entitle Ihe •County Council to claim a road on another line. Tho variation/ therefore between/ Mr -Sadd's definition of the ban.k and Mr. Littlejohn.'s, and \h\i variation, by the alteration of the river are s-o material that I •canuiot accept Mr. Little-john's plans, either as s'howing- the exact boundary of the road as it now is, or as it was in 1563. The road, therefore, except in so far as the formation and use/r has determined it, is still uiuiscertained as to its «xaet boundaries. Certainly the. waters' edge in the Mai'ai is not one of its boundaries ami earnot be claimed- as such by the County Council. -Om Mr. .Sadd'.s definition the. boundary falls many feet short of tho water.

Looking t'hctn, at the history of th = road •.'■•s shown by the records, I find that tho whole of this land belonged to the. NtVw Zealand Land Company, who r'u rveyed and sold the sections and -dedicated the road as a public hig-hway. So far -as actual survey 7,-as eoneMrn>c-d the road has never been- moro than a paper road, and for ■many years a considerable portion of it was rioi", and could not, be used a* a road. The traffic went wherever the easiest route* could bd found. Iror some yearn past the present line of road .' has been, formed ana gravelled to the u&ual width, and used "with the: consent of the dc* i> diar.i:, anidl it is. in my opinion, a 'public road; but its exact boundaries are mot ascertained. I must find that prior to 1850, the-date when the New Zea.'lan-d Land Company surrendered its charter, and the Government took over its obligations, the ■ de-fen-

dais's •predecessor 'in title had became vested in- fee simple in the lands through which tbe road passed, including the whole bed of the Mai. tai witliim the limits of the land, and probably including the fee simple of thei road, subjefct to the right -of the public to use the same as a highway. in> 1863, the Crown, in pursuance of its obligations under the Land Claimants' Act of ISSI, issued a title bo Ralph Richardson. This title did not, and! could not, pur-port or attempt to vary the conditions under which the' land was. held prior to ISSO. Thel Crowm did not make any rese.rvat ions, or in. any way vary the nature of the road dedicated through the 'land. A Crown Grant issued under such circumstances could not affect, alter, or vary the lights of grar.u,eti previously acquired to the Led of the Maitai or any incidental right therein, :or enlarge any Tights i)i respect of the road. The road v\ns a icad line In 1850, and it is K.fill .1 road and! nothing more, and carries no "right other than the< ordinary incidental light J of .a highway, and it is immaterial for the purposes of these .proceeding's whether the fee simple is vested in the .Crown or not.

1 know of no law to prevent Mrs Richardson from fenieiuq- thl-s roadline om both sides- of her property, and. none has been quoted to me. Coming now to the,, history of the present ds'i-spute In t-he latter end of last yeni' Mrs Richardson decided to fence'off this road-line on the river side. To this, -end! slie inUirvic\wed Mr. Littlejoihn about the boundary. At first there- was -no dispute as to her rigiit. to fence it oil, and Mr. i/itile.john himself typed a .requestfor Mrs Richardson's signaturo asking thti Council to allow her to encroach om the road with the fe>n ;'e in certain places. There ivms 'iio dispute at this time as to the- actu'al boundary. This request was refused. Several interviews between Mrs Richardson' and M-r. Littlejohn followed. Ultimately Mr. Littlejohn. on behalf of the Council, claimed riparian rights in respect of the road, and t7ie?,uniably the bed of the river, ad medium fiiu.ai aquae, and disputed Mrs Riehaidson 's right to fence at all, between the road and the river. Mrs Richardson insisted on her right to fence and let the contract to fence the part -non/ in dispute- to a contractor named Smith. Before starting ■work Smit'll asked Mr Little.john about the pegs. This interview took place, oni the ground, and- within sight •of the place where the fcrn.ee w-as- to be erected, and Mr Littlejohn knew that Smith was going to fence. He tr/d him that thorn were, pegs at every bend of the'ioad. There were in f'n.<U pegs at every bend of the road, but they were t.hci traverse pegs of Mr Littlejohn's survey, and not the road pegs. There were m, roadl pegs and, so far -as the records F-ho'w, never havct been any. Mr Little John- did not explain t 0 Smith the ' nature of the traverse pegs, though ho Uuew Smith was inquiring for pegs with the object: of fcn.cing.

Smith took the pegs men! ioned by Mr Littlejohn tu be the boundary pegs and fenced according to them. The fence in dispute* does not encroach on the road si do. of these- tra'verse pegs A somewhat similar interview took place between. Mrs Riehn-rdisivn and 'Mr I-.it tkitjoi.'n in .October last, at w hie In Mr* Kichardj-on also understood from Mr .Little,,ohn that there •w.cre- pegs at each, ibend -of the road and that too at a time when Mr Little joihn knew that Mrs Richardson iutendedi to fence'. The fact tnar they w.ere traverse pegs* was not explained* to her. I am satisfied that both Mrs Richardson and Smi:h honestly believed that t h' -i pegs m emtio ne.di by Mr LUtlejohn were the bouw<lary pegs of the road, and they honestly endeavoured to keeip, and did keep on the proper side of the iine.

It is not iS'Ug'gestod that Mr Littlejohn intentionally misled them i:i regard, to these pegs, lout it is most unfortunate that he was rrot more explicit when he knew that in both eases the inquiry was with the objeict of fencing. The- result has boen \o iilace Mrs Richardson in a most unfair position. She honestly intended to fence the boundary, and wasist.ri.ctly within, her legal rights in so doing, but was mislead, uninten•tiunwlly' no doubt, at a very costly result to herself. It is a-most y.nfortainate circumstance, an ,± t think Mr S i Richardson -did) all" she reasonably could to ascertain the boundary. Tiro erections of the fence was co-ni-meir-rodi some time in February, and th-o matter was reported by Mr Lit ticjohn at a meeting of the Council held- on the 2nd March. From this I infer that Mr Littlejohn knew noi only that a fence/ was being erected, "but that it was being erected' on. the line of the traverse pegs. The Council passed, a resolution in respect of •the mater, and on the 3rd of March Mrs Richardson wrote a let-tor in which ,shd stated: "The word ./illegal' can-not be applied* to any action of mine. I am fencing my boundary as- surveyed and laid off by the Council, and -pointed out. to me by the County Engineer. Mr J. G. Lit. tlejotori.' 'in October last year."

Mr Littlejohn saw this let'.'.er, audi did' not repudiate the -statement in regard! to .showing- the peigs. Now, however, the original mlsunderstandiinn- about The- .pegs arose, rt is perfectly clear that Mr Littlejohn know from this iletter that Mrs Riehardlson- .had) beem misled;. No-thing could' be clear&r than her statement in the letter. The letter itself indicates' that- at the time it w.a.s written the femcing- was not completed, but Mr Littlejohn took no steps to correct the mistake under which Mr.s Richardson was labouring. This to my mind was inexcusable. It "was not uat'il the hearing of the case was star'.ed, when' we were making -an ii*»i>eetian 0 f the ground, that Mr Littlejohn' told Richardson that llift pegs she -had followed- were traverse pe.gs. Mr Littlejohn knew sl.-a wa.s following the traverse pegs when lie saw i:he fence being erected. He kinevv on- the 3rd March that ?L = bad been misled, along witih Mr Smith, 'and with a knowledge "of these facts he commenced these proceedings- without correcting the mistake and giving her the opportunity of finding the true boundary and removing thelfenV'e. Under these cir enmstances it. does not lie in Mr Littlejohro'si .mouth to a-sk thet Court r 0 fine Mrs Richardson for allowing the fcaice to -remain, after the ninth of March. Mrs Richardson, in- my opinion, was entitled to fence '.he bouinlary. -ard T am rai'i'fird that if Mr Littlejo'hn had pointed out to her" after receiving the let'er ■>;•' Ihe 3rd! of March that she war* nrV taken iv< to the. bourd.iiy. she would have immediately founli ! !<> tine liourdsiry -audi removed '.■:■■' fence. At any 'rale she ought, as a mattur of common jii.-.ti-ee, to- have been eiven an oj.portuiri'iy. The. only excuse T enn tind for Mr Littleiohn',=* -ilence im this matter i=- that he/ believes that it would 1 have made -no difference sm long as the fence was erect'O't arovwiien between the road and the middle line of the river. I do not attribute a wilful attempt, to mislead Mrs Richards-on. ou either uoinit. but the fact .remains that she ha/j b'-ie-n puf to the expense of erecting a considerable length of fen.ee

SATISFACTORY PIANO-BUYIKU. The Dresden Piano* Company import «nly pianos of valine, shipped by manufacturers of world'-wide repute. Tne Company's long exipeviTce a.nd strea.t trade enables them, to buy pianos ■mder conditions of special advanitage. Their exhaustive knowledge iff varying Now Zealand conditions —humidity, twnperai ure, and the reft—fits them to oive authoritative advice on piano-selc-o-licm to purchasers from ©very part of the country. ) The Dresden stook pianos made 'l>y many great firms. Thev pell f ; hem nit the lowest rate compatible* with honsst trade; and these prices are the same to overybody. Whatever your circumstances, the Company will "try to meet vour convenience under their excellent hirepurchase system. Obviously, then, if you think of buying a piano, it will he to your interests at least to consult the Dresden people. Thev will he perfectly honest and straightforward with you. whether vou huy or not. The. Dresden Piano Company, Ltd.. Wellington North Island Manager : M. J. Brookes. Local l-eprosentative, Mi*. H. 13. Bunny.*

t.hrmugh a moit unfortunate mlsr.r.-derstand'-mg. a.ndj has been called -upon to defend a co.--.tly proceeding and koiLip in ignorance of the .rue position until after the hearing of the case was commenced. If .there has been an encroachment these' fact ck> -ncut. amount to an answer in law. but they must weight very considerably with the Court in regard to the merits of the proceed, ings. In flu? facts as 1. have- lour.d them T am bound to say that there wa,s no justification for these proceedings witliout giving Mrs Rieh-ardfo-n an opportunity of removing the fence after the receipt of her latter of the". 3rd- of March. As to the emcroachment, I am satis.fieut that there- is a road a chain wide' through sect ion .11 and 14, and :ha,t the line of road formation now in use must be taken as the line of road weni though it may vary from the line sketched en the- grant. It i.s quite clear that an undefined' unas-ee-rtained road sketched on a plan r>jay be varied by -actual user for many years. T-her.o i.s one 'line _of r-jad only, and its present porsi'tion l:as not now to be ascertained by reference to- the plan, only—-the road in- use must be taken into account.

:' cannot in these- proceedings lay down any lirineiplci for ascertakuing -he actual boundaries of the in -.-'.ye. nor is it necessary that I snould —but it appears to me that the proper way to find the boundaries Is to nieasuru 33 feet, from the; middleline of the gravel formation, where there is sufficient land for that purpose, and where there/ js not, the ri-ver-bank as ck-fine-ft by Mr Sadd, must lye taken; but in taking thel river 'bank I do not think the Council would- be .-justified in slavishly following the ban.lt so as. to prevent Mrs Richardson from getting -'sufficient ground to erect her boundary l'eiii.ee on, which in my opinion she is clearly entitled to do. In Jiv opinion, the Council im its capacity as road authority has no jurisdiction whatever or-right inc.the river. Even- if it were) a river reserve the Council could'Tiot claim juiisdiction- to- the middltl ihie of the river. It is only the control of the-road as a road- t-hat is vested in the Council, and clearly i 'ie road does ont extend beyond ,tho river banks. Taking mv own method ef arriving at the boundary of the road the fefnee in dispute ii 3 within (he limit formed! by either boundary, and T must record & conviction fox obstructing a public -road. This cm-' i-roachment, however, d'oes not interfere even with the foot-traffic, and in all the eireumstanceJs I in-' iiiet a fine of Is.

Messrs Baldwin and Ray ward, whose local representatives is Ma-. 0. LaJigicy tJeli, Estate Agent, Trafalgar-street, report that amongst the many applications for patents they have just filed are : I. Harrison, Mirainar, apparatus for corking bottles; F. Gough, Hokifcika, a new medicine ; S. B. Marchant, South Australia, improvements in ridge caps for th© roofs of structures of buildings; L. Paget, Auckland, improvements in water heaters for use in connection with internal combustion engines.