ORAKEI LAND

New Zealand Herald, Volume LXXV, Issue 23117, 16 August 1938, Page 12

ORAKEI LAND

; ' OLD CHURCH SITE MAORI LOSES CLAIM SUPREME COURT DECISION BIGfflS THE TRUSTEES

In terms of a judgment issued by Mr. Justice Reed in the Supreme Court the claim df Mrs. Whatitiri for possession <>f the area at Orakei known as the church site, consisting of about four ' aores, has been rejected. •The claim was a petition of right against the Crown in which the suppliant claimed to have acquired a prescriptive title to the land and sought £650 damages for wrongful entry upon it by agents of the Public Works Department last October. The area was originally granted by the Crown to ISishop Selwvn in 1559 in trust as a fcito for a church, school and cemetery. When tho case was heard before Mr. Justice Reed from July 7 to 13 Mr. Sullivan appeared for the suppliant and Mr. V. R. Meredith and Mr. N. I. Smith for . the Crown. His Honor said it would appear that the original objects of the trust could no longer be performed with advantage to the ■ natives, and it was therefore decided' by the tnlstees (the General Trust Board of the Diocese of Auckland) to sell the land and devote the

proceeds to- the general purposes of the

trust. On' April 28, 1926, the land was and conveyed to the Crown, the consideration money being £IOOO. " ' Maori Occupation As the use of the schoolhouse and schoolmaster's house for the purposes for which they were erected ceased they were occupied by some of the Maoris. The endeavour had been made to show that the suppliant and those through whom she claimed lived permanently on" the place, while others were merely visitors. The evidence quite failed to establish this. His Honor commented that certain of i:he evidence for the suppliant was Very conflicting and appeared to him . unreliable. Upon acceptance of the dedication by the Crown the road delineated on the plan became a public highway. Proof of user as a highway was not necessary where thero was <clear evidence of acceptance. In order that a person might claim to have dispossessed the true owner of land it was obvious that there must be both absence of possession of the person who had the right and actual possession by the suppliant for the proscribed time, His Honor continued. In the present case it was clear that until this belated claim the natives never occupied the land with the intention of •excluding the trustees. Never Dispossessed

"The .suppliant has not satisfied me," ••said His Honor in conclusion, "that ■the trustees were ever dispossessed or at any time the suppliant or those through whom she claimed had •exclusive possession of the land. If this •case had, instead of being framed as a claim for the proprietary rights of •one individual, been framed as a claim for a title by prescription to the general body of natives belonging to the hapu and the members of which occupied the land, they would Still have been met by the insuperable objection that the trusteee had never gone out of possession, that the occupation by the natives was consistent with the purpose to which the trustees intended to devote it, and that there had been no entry into possession adverse to the title of "the trustees, and with the intention of making a title against them. "There will be judgment for the respondent with costs according to scale as on a judgment for £650, disbursements and witnesses' expenses to be ascertained by the registrar. I certify for four extra days of trial at £ls 15a j>er day, and for second counsel for five days at £lO 10s per day." •