STREET WIDENING.

New Zealand Herald, Volume LXVII, Issue 20744, 11 December 1930, Page 18

STREET WIDENING.

_ • . I? VULCAN LANE BETTERMENT. ■ CLAIMS BY CITY COUNCIL. DEFINITION OF " OWNER." Legal questions arising out 'of" claims Jfor betterment in connection with the widening of Vulcan Lane were submitted hi the Supremo Court yesterday to 'Tifr. Justice Herdman sitting'as" president of a Compensation Court. There were two properties concerned, tho 'Boylan estate and the Cileeson estate, and from each of them the City Council'(Mr; Stanton) claimed £I6BO as betterment, Jho president was asked to determine.the respective lights and liabilities oT the . owners of tho several estates and inteiosts ,jn the land.

. In tho case of the Gleeson estate the /respondents in the action were James Collins Gleeson, commission agent, and Patrick Spellman Gleeson, brewer (Mr. Towlc) and Hancock and Company (Mr. E-ogerson), to whom the Glecsons have leased the freehold. The position of the Boylan estate, for whom tho Guardian Trust / and Executors Company of New Zealand, Limited (Mr. Richmond), arc trustees, was somewhat more complicated. The life interest in it is held by Miss 'Ann Boylan (Mr. West). It had been leased to Dennis Lynch, who sold the lease to Oliver Nicholson, solicitor, and !Mrs. Margaret Spellman Lynch (Mr. Finlay). They in turn sub-leased to Hancock and Company. Each of the respondents specifically denied liability. Determining tho Owner. Mr. Stanton said the two claims arose 'tinder the Municipal Corporations Act, .1920, which provided that where a .. borough council widened a street by taking land from one side only then the -'owners of the land on the opposite side |of the street might bo required .to pay % betterment. The City Council had widened yulcan Lane from Queen Street 'to High Street. Lands affected were owned in fee simple, and there were interests by way of life tenancy in one case arid' by way of leasehold in both '•cases. The question would be who were .the owners .and what should be the incidence, of the betterment upon them. f. His Honor said the owner was defined H«s the person who was entitled to receive Qthe rack rent. The only person entitled vi {0 receive rack rent was tho owner of >the freehold. " You are in the happy Imposition, Mr. Stanton, of getting the t-money from someone, and you do not .care whero it conics from, said His

J . Honor. (3 Mr. Stanton said lie did not go as far ; 8S that, but his interest was secondary. •'The council contended that it was only ■ concerned to ascertain the total betterment of the parcel of land, and if the 'persons interested could not agreo then -the Compensation Court must apportion 'that amount between them.

"f j The " Rack Rent." J i Mr.. Richmond said there could be no "'doubt tjiat the definition specified tho owner as the person entitled to receive the rack rent. Rack rent was " only a 'rent of the full value' of tire tenement or near it." He appeared for owners who .had let their property on a long lease iior ; anient? of £lB2 a'year to Dennis (Lynch. Dennis Lynch leased the property, 'whicli_ had now become tho property of Hancock and Company, at £546 a year, or exactly three times the previous rent. Rack rent meant the highest rent that could be got at any given time. .Whoever might be liable to pay the betterment the Eoylans clearly were not. Mr. West said the person who got the benefit from the betterment was the one who should pay for it, and argued that Mr. Nicholson and Mrs. Lynch were receiving the " rack rent.' Mr. Towle said tho Gleeson estate had been leased to Hancock and Company for. 34 years from November 1, 1899, at a rent of £IOO a year after the first five years. They were getting a purely nominal rent, certainly not tho full annual value. The claim for betterment alone was £BO a foot, and ■it would be conceded that £IOO a year was not a rack rent in any shape or form. Mr. Finlay argued that the word ."owner" could not in common sense and reason bear the meaning which the legal definition purported to convey. The question of betterment was a recent development and was first known to the Jaw in New Zealand in 1900. They were dealing with a brand new conception. " Known to the Romans."

His Honor: It was'probably known to the Romans. They liad a Laud for Settlement- Act.- " Mr. Finlay said' betterment was a kind of excresc'euco grafted ot| to the municipal corporations law and apparently the ' draughtsman ■ gave no attention to the very restricted meaning of tho word ?' owner " under that Act. "The definition of 'owner' under flic Act can /'and should be entirely disrcj irded," sajd. Jlr. Hogersou. Given suflicient reason the Court had ample authority to do so. He admitted Hint definition was applied Hancock and Company were certainly liable in Gleesons y case. The position in Boylan's case was not so clear. The meaning of the term owner in section 193 was not to be bound within tfiyp definition of the Act, but was to be taken from the text of the section itself. By. virtue of that context the word owner in Boylan's case meant the owner of the several interests in the property, namely, the feu simple, the head lease and the under lease. 11l Gleesons ease it meant owner of the fee simple and lessee. Jf the definition in the statute was to prevail then the whole of the compensation would have, to be paid by Hancock and Company, and the owners in about two years' time would enter into possession scot free. Mr. 'l'uwle.: That is;your misfortune. It might,have happened in the lirst year of the lease. Mr. Rogerson replied that t.lie interpretation be contended for entailed no misfortune to anybody. Further argument was heard on (lie, interpretation of the covenants of the lease bet ween J. C. and I'. S. (Sleeson ;md Hancock and Company, and 'this will be continued this morning.