MAGISTRATES COURT

Nelson Evening Mail, Volume XLVIII, Issue XLVIII, 10 March 1914, Page 6

MAGISTRATES COURT

TUESDAY—MARCH 10, 1914

(Before Mr J. .S. Evans, S.M.J

UNDEFENDED CASES

Judgment by default for the full amount claimed, with costs, wag given ill the following undefended cases: — Wm. Douglas (Mr Hayes) v. Geo. Silcock, senr.7 claim for £25, costs £2 14s ; Everett Bros. (Mr Moore) v. Joshua Earclay, claim £4 16* sd. costs 20s; A. \V. Peters (Mr Ada ire) v. J. Fenemore. claim £6 ISs 2d. costs £1 18s 6d ; same v Herbert Fenemore (Mr Adams), claim £8 12s Bd, costs £1 18s 6d : Healy and Son (Mr Houlker) v. R. Scholtz. claim 6s 3d, costs ss: Nelson Seed and Produce Co. (Mr \V! V. R-out) v. Reginald Newport, claim 7s. costs ss; same v. Julia Carroll, claim 2s 6s. costs ss; Wilkins and Field Hardware Co. Ltd. (Mr Fell} v. Isaac and Belworthv, claim £l3 14s 7<l. costs £2 O.s 6d.

CITY COUNCIL GRAVEL RESERVE

CLAIM FOR ROYALTY,

Nelson City Council (Mr E. B. Moore) v. John Orsman (Mr Fell), claim for £7 3s 6d royalty on gravel alleged to have been taken from the Council's foreshore.

Counsel for plaintiff said that the action was a claim by the City Council for gravel removed from the Nelson "foreshore reserve. Under the Public Reserves Act, 1854, certain foreshores from Arrow Rock .to Mackay's Bluff were vested in the ' Superintendent of the Xelson Province. Subsequently upon the abolition of the provinces, the.Ke foreshores became vested in the Crown, and by the Nelson Foreshore Act of 1889 became rw-invested in.the city. The. Act of 1889 was repealed by an Act of 1907, but such repeal did not affect -the city's title. On a portion of this foreshore a septic tank was erected, and groins were elected to prevent the river undermining it. The river, a'fter passing the groins, had no definite channel, and disappeared towards the gasworks wharf. Some time aco the "Council gave permission to certain carters to remove gravel from the mudflats, fixing a royalty for such removal. This royalty,-the defendant refused to pay, and the present action was thft 'outcome. He called J." G. Littlejohn, City Engineer, who said he had laid out the lines if the Council's reserve. • Some time ago the Council gave carters permission to remove gravel, charging a royalty of 6d a load. Witness had fixed the area from where the gravel was to be removed, as carters were removing it from the vicinity of the septic tank and the outfall sewer. Those carting the gravel were -told the boundary line. Although defendant had not been told v. h?re to take the gravel from, hia carters had distinctly been told from .where not to take it

By Mr Fell: Pegs had been put .in defining the boundary :*n the direction of Beachville andMackay's Bluff. He was not aware that either the Town Clerk, the foreman, or the carters were under the impression that the boundary was from the gasworks wharf to the cemetery. They would be i r they were. ' Richard Kenning. City CounciL foreman, said'he had known the mudfiat* for 44 years. Gravel was difficult .to .obtain outside the reserve, and it was of poor quality. He had seen defendant on his carters removing gravel, but not outside the boundary" since th*» pep were put in. When, the pegs were put ir he had instructed carters not to remove, travel from the south s:de,of them. ' "* By Mr Fell: He was awarfe that previous citv engineers had instructed carters to take gravel, from the bed of the river.- - Carters taking gravel from .within the pegs were charged a royalty. He had not told a carter named Henman that the boundary line was from Beachville to the cemetery. ' To the Magistrate: He would say that the average distance inside the peas from which gravel was taken was about five chains, Thos. Quirk, employed by the Gounr-u on the rubbish tip. eaid it was his duty to check the carts as they came off tjie reserve. From the tip;head he could fee where the "gravel was being removed . from : if he was. not sure he went a.ong -the Port road and looked along the boundary line. . . t Bv Mr Fell: He always ascertained the names of the drivers. had removed gravel, and :n January, 1913, had offered payment for two loads.. Witness had. on occasions, booked gravel taken from"outeide. the boundary. 'CJntil the other dav he did not know where' the real boundary line was. He could not sav that the four loads booked ~{o defendant o n llfh February,,. •rrere taken' inside or outsidoo-the boundary. W:tnes.= was pressed as to where - certain- specified loads of gravel were removed' from either inside or outpide the boundary, and .replied that ' they were taken from the mudjat inside, the boundary. . although he was not aware of the real line until quite recently. The Court then adjourned for lunch, in the meantime the Magistrate, and counsel to visit the vicinity of. Teh reserve* - ■ "" On! the Court resuming', the witness Kennins. recalled, said that on one occasion defendant had offend to pay for gravel. Witness asked'defendant to let the account go hvin the ordinary way. Further evidence as to the method adopted in charging up the gravel was -nven by G. A. Edmonds, Town Clerk. " Bv Mr Fell: He.-remembered defend.ant "corning to"hi^ 1 - office and disputing the account, but he did not remember theSdate. He could not remember a conversation taking place as to where the boundary line was. Th:= was all the evidence. Mr Fell asked whether there was any proof that gravel . had been taken or that a reasonable royalty had been charged. The claim was net one for, damages for trespass. He said it was perfectly clear that the claim was for . sixpence a load for gravel taken, but no agreement was in existence stipulating the price to be paid. On ther.e points he asked for a non-suit. ■ In answer to the Magistrate, Mr Moore said the Council was suing tor damages. He submitted that it had been proved that the gravel had bem removed from the reserve. The Magistrate said it had not been proved how many loads of gravel h;;d been removed bv defendant. The action must be founded on damages. It was not likelv that the Corporation would allow carters to remove gravel at all if itwas damaging their property ; and the mere fact that.it. was of benefit to the Corporation did not entitle any-one e.hc to remove it because it was doing the Corporation no harm. As*"""r-egards the dumber of loads removed, there was some evidence, but defendant was not 'entitled to a nonsuit. For the defence, Mr Fell said that ail the crave I taken by defendant was taken from the bed.of the river, and most from outWrle the Council reserve. He contended that the river bed was vested in the Crown, and that the bed of a navigable river was not vested in the Corporation. : '" (Left sitting). '