LAW AND POLICE.

New Zealand Herald, Volume XXVI, Issue 9468, 12 September 1889, Page 3

LAW AND POLIC E.

SUPREME COUUT.—Civil Sittings. Wednesday. [Hefore Tfis Honor Mr. Justice Conolly.) Till', DISVONTOKT HNCKOACHMENT CASK. Thk lieaving of this case which had already occupied the Court the whole of two days was resumed, Mr. IFcskebh and Mr. T. Cooper appearing for the plaintiff, and Mr. CottQr, instructed by Air. Coleman, for the defence. The ease for the plaintiff was continued. Mr. 11. M. Jervis, J. P., who was a member of the Road Board ab the time Mr. Alison was indicted for encroaching on the road, gave evidence corroborative of that of Air. 0. Mays as to the encroachment. Miss Isabella Webster deposed to having resided ab the North Shore for 22 or 2:> year?. She knew Mrs. Alison's property. She recollected the wall when it was in its first position further back than it was now. She was acquainted with the late Mr. Alison. (Mr. Cooper said this evidence was tendered subject to the objections already taken by Mr. Cotter.) Witness saw Mr. Alison removing the wall, and asked him why ho was doing so. He replied that he was told he had more ground in fclie front, and if the Bo;ird would givo him £20 or £'2. r > he would not put the wall up. Ab blmti tamo lie was working shifting the wall. That was all that took; place that she could recollect), and nob being- greatly interested, she did nob take much notice. Cross-examined : She made no note of tho conversation, bub it was impressed on her memory. She could not eny whether or nod the wall w.is shifted outwards towards Stan-ley-street. This closed the plaintiffs' case. Mr. Cotter submitted that tho plaintiffs had nob made out a prima jack case,

and further, that they had nob brought! themselves within the statute, and he addressed himself to the latter point first. The plaintiffs were a corporation under the Act of ISSO, and by section 231 of that Act the word street was denned to mean the whole of any public highway, now existing or afterwards to be laid out in the borough. The original Municipal Corporations Act of 1867 did nob define the word street, bub said all public streets and bridges shall be under the control of the Corporation. The Amendment Act of IS7B did define the word street to mean the whole of any public highway within tho borough; bub the words "now existing," which occurred in the Act of 1880 did not occur in the Act of 1878. He admitted that he had been unable to find any authorities or cases in point. The second point was in regard to the insufficiency of the evidence for the plaintiff to support the claim. Had the claim been brought immediately after the alleged encroachment took place, then His Honor would have to decide only by the Crown grant .and Major Heaphy's survey map, and the only evidence given after was of more recent plans and surveys not checked by Heaphy's plan, lie then commented on the evidence given by the different surveyors at some length. 11 isHonor said that his argument was that there was an insufficiency of evidence, not that there was no evidence, and as there was some evidence if there was a jury, he would be bound to allow ib to go to them. He thought, acting without a jury, he would not be justified in stopping the case. As to the first point, he ruled that the .street was existing even if there was an encroachment. The portion encroached on was not less a street because it had been fenced in or built upon. It was not a case, at all events, upon which he would give judgment without consideration. Mr. Cooper said what they desired was that, the matter should be finally decided. His Honor said lie could nob finally decide it, as there were higher tribunals. Mr. Cooper said he meant so far as this Court was concerned. Mr. Cotter said that this Court could not settle tho question. Ib had been settled '20 years ago, sis he should prove from the minute books in the possession of the plaintiffs'. He then proceeded to open the case for the defence. He called Mr. Eweu W. Alison, son of the defendant, who said he was an agent, residing at Devonport, and one of the plaintiffs, a member of the Devonporb Borough Council. He knew the allotment granted to his father, lie had been in Court, and heard Mr. Warner's evidence as to the plan he made in 1865. At that time the eastern wall was built up to Burgess 1 boundary, but not in a straight line, and witness explained the divergence which commenced near Mr. Burgess's boundary, and continued at that angle to the Beach Road. It was about as shown on Browning's plan. He remembered the shifting of the eastern wall to its present position, and at that time a southern wall was up as -well, and that was also shifted to its present position. lie heard his father state as his reason for shifting ib that Mr. Browning had called on him and asked to see his Crown grant, as he was unable to fix the boundaries of the swamp , reserve. His father showed him the Crown grant, and he took it away with him. When he returned it he said he had found where the difficulty had arisen in fixing his point?, his father had not enclosed sufficient land, and that his boundaries went further eastward and further towards the Beach. His father then wrote to the superintendent of the province, asking that his boundaries might be fixed. A survey was made, bub witness did not know by whom, and his father removed the walls both way?. Ho could not remember whether that was before or after Mr. Tolo made a survey. The swamp near Stanley-street was then quite a lake, and there was a small lake in the centre of 15.A, about a quarter of an acre in extent and 12 feet deep in the centre. It was since drained, but the hollow still remained where the strawberry grounds now are. The Highway Board took exception to the front wall being brought forward. From his knowledge of the road he could say that the Beach Road was of irregular width, and opposite the Public Hall the sea came right up to the present; boundary, and a plank was laid down to enable people to cross. (His Honor said it was quite clear that the road was not a chain wide all round.) Witness had lately purchased several blocks in Devonport, and after purchase had them put under the Land Transfer Act, and according to the surveys there was a large surplus beyond what was stared in the 1 Crown grants, and he gave several instance.-!. Jn one case, which on the Crown grant tho area was shown to be 4S acres '2 roods ; ib proved on survey to be 53 acres JO perches. In the case of Melrose, there was an excess of 5.J- acres, and in the case of Stanley Point there was an excess of 11 acres i rood. In no one instance was there a deficiency, and in every case that came under his knowledge there was a surplus. Two of the houses on 15a had been built previous to the wall being , removed, and the other two since then. After the trouble about the shifting of the wall, his father and mother had to come to town on several occasions, and some little time after he was told by his father it was all settled, and since that time it was looked on as a settled matter, and was so until about throe or four years ago, when a new-coiner to the district wrote to the Board, calling attention to the position of the road lines. Witness was a member of the Borough Council since it was incorporated in May, ISSO, and knew as a member of the Council that no opportunity was given to his mother to make any explanation before action was taken, unless the notice to pull down the wall received some four or five months ago might be considered such. Cross-examined: Witness had met a sub-committee as to arranging a compromise. This was about three months ago. (Witness was desirous of making an explanation as to why he met this committee, but Mr. Hesketh did not think it, necessary,;:and His Honor ruled I hat for the present he hud better answer Mr. Hesketh, and Mr. Cotter could elicit, what he thought necessary afterward.-?.) Witness said his belief was that the pegs to which the wall was removed were pub in in consequence of his father writing to the Superintendent. He saw the letter from the superintendent directing his father to fence to his pegs. The witness was then cross-examined as to his recollection of the boundaries, &c. In reexamination witness explained that he was a member of the Borough Council, and paid a large amount of rates. At a meeting of the Council previous to the notice to his mother, and after the notice had been served on Alison Bros., a member suggested a compromise. The Mayor said he thought' it was too paltry a matter to go to Court on. A solicitor's opinion had previously been received, and was referred to at this meeting. It stated the case was weakened by the length of time which had elapsed. They suggested three courses, one of which was that, a portion of the wall be removed and allow Alisons to bring their action, and this they recommended, but they could not advise as to the result. (The opinion from Devore and Cooper, dated nth January, was read). The Mayor asked witness whether any compromise could-bo effected,'and. he said he had never considered the matter in connection .with a compromise, knowing the boundaries to be correct, but if a committee were appointed, and if no compromise were made, there would be no harm done, and he would see the owner. A committee was appointed consisting of the Mayor and Messrs Brown and Dnder, to endeavour to arrange the compromise on behalf of the Council, and met witness (as representing the owner) on the ground. His mother was averse to taking any action as to compromise, but finally she left the matter .in his hands to arrange, and he told the committee that any arrangement he made would be carried out, and he asked whether the committee had power to make arrangements for the Council, and if any arrangements they made would be carried out, and they said ; of course that was understood. At his request they then pointed out what they required, and they agreed bo a compromise, which the Council refused to carry out. The Mayor expressed himself very strongly, and considered ib a dishonourable action, and threatened to resign in consequence. A very strong feeling wag excited in consequence of the refusal of the Council bo ratify the action of their committee. V\ ,'-.. V' ~'. , .;. V Francis Charles Leggebb dopoaed thab afe present he resided in Arapohue, Northern Wairoa. He was secretary of the Devonporb Highway Board from 1871 to 1872. When he succeeded Mr. Mays as secretary, a writ had been issued against Mr. and Mrs. Alison for trespass, and ho wrote, on the sbh of August, 1871, to Mr. A. Alison, after

the indictment had been preferred and adjourned. It was to the effecb that be was directed by the Devonporb Road Board to write to Mr. A. Alison, inviting him to attend a meeting of tho Board, on the Bth August, to see whether some arrangement could not be arrived at, so as to settle the matter in dispute, and Mr. Joy, his eolicitor, could accompany him, and in the meantime any proposal would be considered. Mr. Alison accepted the proposal, and an arrangement that the matter bo decided by survey was arrived at. Tho agreement which appeared in the minnte book was read, as signed by Mr. H. Niccol, then chairman of the Board, and was witnessed by Mr. Leggott. A resolution was carried to insbrucb Mr. Brookfield to stay all proceedings. By resolution of the Board Mr. Gwynnebh was instructed to make a survey, and on the same day a* letter was written to Mr. Joy as to the discontinuance of the action- He remembered Mr. (Iwynneth making a survey, and furnishing a plan and report. Mr. Gwynneth was nob further in the Board's employ than for this work, and at a meeting of August 15 his account (£5 ss) for making that survey was passed. It appeared from statements of counsel that these documents had been in tho possession of Mr. Tanner, who was secretary of the Board and secretary of the Devonport Ferry Company, and Tihcy could not be found. The report was lost, and Mr. Tanner was dead. Afc the meeting of the loth the consideration of Mr. Gwynueth's report) was deferred. These facts were gathered from the minutes and the examination of the witness was resumed. He saw the plan and report of Mr. Gwynneth, and knew his duty was to report whether or not Alison's fence encroached on tho road. The plan and report decided in favour of Mr. Alison, and went on to say that Air. Alison was well within his boundary, and that lie wa.s not encroaching on the road, and, to the best of his belief, it said that he could come two feet further forward. That report having been approved, nothing further was done as to the prosecution of Mr. and Mrs. Alison, and the Board considered the matter finally settled. At a meeting on the l'Jth of Sep. teinber a letter was received from Mr. Alison requesting that the Board call a public meeting of ratepayers to consider-the prosecution instituted against him, and the Board declined to do so, bub saw- no objection to Mr. Alison doing so if he thought proper. Up to the time witness left the matter was nob revived in any way;-it was considered finally settled by that report and plan furnished by Mr. Gwynneth. In cross-examination witness paid the proceedings were pending: before lie took action, but he was secretary when Mr. Brookfield on the 9th of May, 1871, Mas instructed to indict Mr. Alison. The witness was further cross-examined by Mr. Cooper. After the June sessions, afc which tho indictment was presented, there was a fresh election of the Road Board, and only two of the old 'members were re-elected, and Mr. Niccol became chairman, Mr. S. Cochrane having been chairman during the previous year. Mr. Niccol was a new member, and Mr. Cochrane one of those re-elected. The point of contest was not on this question of Alison's encroachment, but between the eastern and western ends of the district, and the western end won, and Alison's friends lost the election. It was a very hot election. Mr. Alison called a public meeting which was reported in the Herau) of .'soth September, witness had read the report the other day. The matter had slipped his memory. According to the report Mr. Leggetb was present, and Mr. O. Mays presided. Witness represented in the report to have taken an active part, and Mr. Cooper read extracts from the report, but witness had/no recollection of the proceedings. He did not recollect that Mr. Gwynnebh's report condemned Major Heaphy'a survey. The witness was further cross-examined as to his recollection of the circumstances, more especially in regard to Mr. GwynuethJa report and plan. He was certain these were in favour of Mr. Alison. His mind was a complete blank as regarded the meeting referred to. Witness left the North Shore in 1872, and had not visited it since, until he came down on this case. In re-examination, he said ho had no doubt Gwynneth's plan and report were in favour of Mr. Alison, and the proceedings were stopped in consequence. Joseph Dinsdale, Town Clerk of Devonport, deposed that last year he applied to Mr. S. Percy Smith, Assistant Surveyor-General, for a plan. The original I plan was not in his possession, bubho-ra- ' ceived a tracing or copy of ib from Mr. S. P. Smith. The letter asked for a properly authorised plan of the Beach Road from Church-street to North Head, showing encroachments. He forwarded the tracings, bub said ib showed no encroachments. To ascertain those a survey would be necessary. In answer to subsequent applications to the Chief Surveyor for his approval- of certain plans prepared by Mr. Harrison, Mr. Humphries declined to involve the Government in any dispute of this nature. Mrs. Jane Alison, the defendant to the action, deposed to having resided ab the North Shore for 34 or ',15 years. When het husband and herself went on to the land there was a large lagoon on the north-easb corner, and a lake in the centre of the lot. The witness stated that the walls first erected by her husband remained until Mr. Browning's survey, and Mr. Browning-told them they were entitled to more land, and her husband then erected a temporary fence to show the extent of the property. The Road Board took action against her husband and witness, bub afterwards withdrew the proceedings when Mr. Gwynneth's survey was made. She always understood this entitled her to the whole of the land in dispute. Sir George Arney was judge at the time, and she left the management of the property solely to her husband, and from IS7I until within a few days ago she was never troubled about the Beach" Road wall by the Road Board or any other parties. Alexander Alison, son of the last witness, deposed that they went to live in Devonporb in June, 1853, and erected walls roun d the boundary. The witness gave evidence corroborative of that given by Mr. B. W. Alison as to the laud generally, and the removal of the fence in Sfcanley-streeb and Beach Road. He also gave evidence as to Mr. Browning's survey, and being older than his brother he waa able to give more definite evidence on some points. At this stage the Courto adjourned until 10 o'clock next morning.

POLICE COURT. — Wkdnksday.

[Before Dr. Giles, K.M.J Drunkenness.—One person was punished for this offence. iNSur/HNG L'ANRiTAOE.'r-Nancy Turner pleaded guilty of having used insulting language to Mrs. Ellen J. Featon. Defendant was ordered to enter into a surety of £10, and find another of a like amount, that she would keep the peace for three months, and she was also ordered to pay the costs of the case. Larceny.—George White pleaded guilty when charged with the theft of two garden tools belonging to the Ven. Archdeacon Dudley. Sergeant-Major Pratt said that the tools had been left in an outhouse in the garden at Archdeacon Dudley's residence, and they were subsequently pawned by the accused. His Worship said that) offences of this kind were becoming far too common in Auckland, and he sentenced the prisoner to four months' imprisonment] with hard labour.

PAPAKURA R.M. COURT.

Tuesday September 10. [Before Thomas Jackson, Esq., R.M.] Obscene Language.—James Barrett) was convicted of drunkenness and obscene language, and sentenced to fourteen days' imprisonment with hard labour. A. Hill v. W. Burnside.— for return of horses or their value. The plaintiff gave defendant two horses to break into harness. Subsequently he assigned his estate. Defend ■ ant refused to give to the assignees the horses, and they .subsequently sold them to plaintiff, who demanded possession, and on being rofueed brought this action. Mr. W. Ga'rrett apd Mr. G. D. Smitli gave evidence on behalf of plaintiff, and Mr. W. R. Franklin, who appeared for the defence, only examined defendant. Judgment for plaintiff for the return of the horses or their value, £8, and 43s Court costs. Stevkns v. Watkbton. — Claim £2 10s, for rates. Mr. l<Ya» klin, who appeared for defendant, said this claim was resisted on the ground that defendant* never was owner or occupier of the property' — ib was his wife's, and the defendant's namo had been pub on the rate book by tho Road Board without authority of law or of defendant. Mrs. Waterton was willing to pay the rates, but. not the Court costs. i The rates were accepted, and the ease, struck Qub,—fOwn Corresivm.de.nfc.J , ;