PLIMMER'S STEPS

New Zealand Mail, Issue 1618, 4 March 1903, Page 55

PLIMMER'S STEPS

INTERESTING LAWSUIT.

ANCIENT HISTORY REVIEWED.. Uu cue 26tli uit. Mr Justice jLiennistou toon up the hearing ox in o actions, in the first of winca tho Luc.y Council sued John i.'iumiior. oo obtain possession of parts of one hiiiuwuy known as Plimmer’s £>teps in n-s possession, and to restrain min and tno .District Land Registrar xrom giving effect to an application to bring certain seccions unaer ti&e Land 'transfer net, in so far as it affected pare of the nigh way m question. In tno second case Joim Alfred Plimmer, son to tno previous defendant, was proceeded against on similar grounds. By; consent both cases were taken together. Air T. F. Martin appeared for plaintiffs. Mr \V. ±±. Quick for Mr John Pimmier and Mr M. Chapman for Mr *l. A. Plimmer.

Mr Martin, in opening, said the action was brought to determine the alignment of a certain public street known as Pkmmer’s Steps, which connected Lambtou quay with JJoulcott street. The street was laid out in a map called Swainson’s map, and the original plan would bo produced. The present litigation had reference only to so much as was shown on that plan. In 1853 a Crown grant was issued to the defendant. John Plimmer, of certain land, in which this particular street was referred to and excepted. Plaintiff’s case was that the street as used had not the same shapo or line as that represented, in the original plan—the particular £esuture cf difference being a bend or break in it, a very short distance from Lambton quay; and that was partly the cause of tho bringing of the present action. The action arose from an application by Mr Plimmer, last year or the year before, to bring tho land on either side under tho Land Transfer Act. That caused the City Council to look into the matter and to lodge a caveat. A 1 settlement was attempted, but was not successful, and as a result the present action was brought to have a legal settlement cf tho rights of the parties. It was admitted that it would be a great disturbance to Mr Plimmers property if tho street laid out in the original plan were to bo insisted on, fife it would cut right into the defendant’s garden, through the houses. The Council did not wish to do that: all they wished was to get an alignment which would give them two things—a uniform width of twenty-one links, and to have the street without any ‘bend or elbow. His Honor observed that all he bad to determine was the legal rights of the parties; the plaintiffs could settle the details with Mr Plimmer afterwards. Mr Martin continuing, said the alignment suggested by the plaintiffs not being accepted, they had no alternative but to have their claim on the street as it appeared in the public map. They asked for the street according to Swainson’s plan on several, grounds—that it was a true reproduction of the line explained by Swainson’s map, and also by the wording of the Crown grant, that they were entitled to a uniform width of twenty-one links, and that there should be no elbow.

His Honor interjected that the plaintiffs were not only justified in coming there, hut bound to do so, if a man was occupying public land. Of course, if tho defendant was right, it was quite a different matter.

Mr Martin went on to say that if he was able to satisfy the Court that the Toad as laid out by Swainson was different from what it was now, something more than repair carried cut by plaintiffs would be necessary to establish defendants’ case. Repairing could not possibly amount to a legal deviation of the road.

His Honor observed that if the land in dispute was never Mr Plimmer’s there was nothing to make it his. The plaintiffs were seeking to eject a man, and they must show prior title. Everarc} William Beaton, authorised surveyor, was the first witness called. He identified Swainson’s map produced from tho District Survey Office, as being used as a reference plan or record map of the town, as far as it covered. It was recognised as the oldest in practice, and he had not the slightest doubt that the Crown grant was copied from the map. As the street in dispute existed, it ran through a deep cutting on one side. If it were to be carried, in a straight line from Lambton quay, it would cut through Willowbank house.,. Thomas Ward, authorised surveyor, gave similar evidence. He would not like to define the -place for the purpose of giving legal possession on a plan by Parkes, produced. It would be possible to reproduce on the ground the line of the street as indicated in the plan attached to the Crown grant, but he would prefer to have better data. Robert Tait, chief clerk in the Town Clerk’s office, deposed to having examined tho records of the Council and of the previous Town Board as far back as they went —to 1563. There was no record of -any resolution directing the lino of Plimmer’s Steps to be altered. James Frederick Weaver, who has resided on the Wellington terrace, with intervals, since 1856, believed that the first steps were single steps ascending straight, but he would not be positive. He di.-i think there was much dif-

lerence in tlie levels of the top of the street and the adjoining land. He did not believe the street Avas half as wide in tho old days. H. M. Lyon, who resided in Bonlcott street from 1854 to 1901, testified to being familiar with the steps since 1858 or 1859. To the best of his recollection the original steps were one straight line of stair steps from Lambton quay to the present elevation. He could not say if the fence at Willowbank house had been moved out, but the old steps bore the same relative position to the fence of the house as the present. He remembered the original steps being washed a,way, and the steps being rebuilt witTi one landing. To the best of his opinion, they were built straight up. He could not fix the date when tho steps were put in their present position.

Cross-examined by Mr Quick: He did not remember-any alteration in the alignment of the fence of Willowbank house.

Robert Power Collins testified, to having been resident in Wellington since 1842. His early recollection of the Steps, dating hack to about 1848, was that tiiere was a flight of steps, then a bend and a landing, from which the line continued straight up. In answer to Mr Quick, the witness stated there was no fence on the righthand side of the steps coming down when he knew the place first. He had played around there in the scrub as a boy, where the Brothers’ School stands now.

This closed the case for the plaintiffs’. Mr Quick moved to nonsuit the plaintiffs on the ground that they had failed entirely to prove their case. They brought an action for ejectment against Mr John Piimmer, who was the present owner of the land in dispute on either side, while Mr John Alfred Piimmer was neither an owner at present, nor was lie in possession. Counsel submitted that in order to succeed in an action for ejectment, plaintiffs must rely on the strength of their title. The evidence they had brought showed on an ancient plan, constructed about 1848, a curved dotted line which at that time was suggested as a proposed road. The line on Parkes’s plan, which was not dotted, was no criterion by which any surveyor would lay out a road in such a manner as to dispossess the defendant. Plaintiffs should show that the defendants were not only trespassers, hut in what respect they were trespassers ; and that they (themselves) were entitled to enter into possession. To carry it out a writ of possession should he given, and such a writ that there could be no subsequent doubt as to the possession plaintiffs had obtained by possession of it. Was the Court satisfied that defendants had trespassed' on the road in the first place ? and, if so, where they had trespassed?

Mr Chapman moved to nonsuit on

the ground that Mr John Alfred .Plimmer was not proved to be in possession of any portion of the land in question. His Honor: Is he not treating it as his own, and applying to be brought under the Land Transfer Act? Mr Chapman replied that his client was only a reversioner. Surely, an ejectment could not be against one not in possession ? His Honor asked, in that- case, what steps were to be taken by the plaintiffs to bring Mr John Alfred Plimmer in?

Mr Chapman replied: An action to restrain him from bringing the land under the Land Transfer Act. His Honor expressed the opinion that he w r as not so sure he was tied to forms as that he could not make an order that would bo effectual as regarded Mr John Alfred Plimmer. Mr Chapman retorted that his client could not have avoided the action by giving up of land of which lie was not in possession. An injunction must stand or fall with the claim for possession, and it was not shown that he was ever in possession. tie also applied to nonsuit on the grounds urged by Mr Quick.

His Honor, in rejecting the motion, without calling on Air IVlartin, said it was not his practice to nonsuit unless

he was perfectly clear on the matter,

for the reason that should he turn out to be wrong,all the previous trouble that had been gone to was wasted, and the matter would have to be dealt with de novo. He was not sufficiently impressed by the views put forward by counsel in the present instance to justify hirm hi nonsuiting the plaintiffs. ~ The argument put forward on behalf of Air John Plimmer would go the length of asserting that if he nad taken over the entire piece of land from the beginning, it would he im-

possible to eject him now. If it was possible to ascertain the piece of land reserved from the Crown grant, that would be sufficient to prevent a nonsuit, and they liad the evidence of two witnesses who’ said that it was possible. He was not prepared with the parties there before him to render, possibly, abortive all the proceedings that had been taken. The plan there before hhn on the certificate of title was not a »lv*ro rough sketch of a visible existing read but, on the f face of it, a reservation of a particular piece of ground from the Crown grant. As to Air John A. Plimmer, it seemed ho was claiming to have a title which

would be final against the plaintiffs in respect to this piece of land. Whether the technical points raised by Mr Chapman would ultimately swcceed he was not prepared to say. Personally, he would like very much to nonsuit plaintiffs.

Mr Quick, in opening the case for the defence, intimated that ho would put in a couple of documents at that stage instead of later on. To thoroughly understand the ease it was necessary to go back some fifty odd years, to the early days of the colony. Ho asked to he allowed to put in a picture of Clay Point, which was in proximity to the land they were now dealing with. It Avas situated at the junction of Willis street and Lambton quay, and had been cut away to a .very large extent. In these old days there Avas a flagstaff there and a . battery. He put in the picture—which was of historic interest —being by Major Heathy, V.C., to show the rugged nature of the land before anything was done in the nature of buildings. As far back hs 1884, Mr Piimmer took on. lease a piece of land abutting Plimmer’s Steps, and on Avhich Barrett’s Hotel now stood. At that time the plot on which tthe Athenaeum stood was a reserve. Counsel handed in a petition to the Governor, drawn up in 1848 and signed by all the old colonists, pointing out the benefit that would arise from tho opening up of communication at that spot, between Bouleott street and Lambton quay. Of the signatories to that petition, all of whom he had the pleasure of knowing, there was none left hut Mr Piimmer. About that time there Ava s a track leading from Bouleott street, to Lambton quay, taking the contour of the hill, while close by there was a gully. It was not a case of the arbitrary laying out or measurement of a road, but a mere track, and the streetafterwards became the widening_of that track. The engineering difficulties would .have been too great to have had a straight road there. He would adduce evidence to show that long before the Crown grant was issued, Mr Plimmer had works on the land so granted. Where Barrett’s Hotel stood now there was a limekiln. Oil the other side, at the hack of Willowbank house, there was a shed which was afterwards turned into a cottage, because Mr Piimmer moved out of the hotel premises on account of their being strained by the earthquake of 1848, and went to live in the cottage. Prior to that the land was fenced, and the reason was that tho defendant had to reinstate some buildings shaken down by the earthquake, and he made a timber-yard of this land now in dispute; then he endeavoured to make bricks there ; afterwards the cottage was erected on the site, and subsequently Willowbank house. The Town Board interested themselves in the road, and carried out. improvements on the steps origin ally put there, and the City Council built the steps in the exact position which they now objected to, about twenty-five years ago. It was not defendants who were the trespassers, but the Council. They avoided engineering difficulties which would have arisen had they attempted to carry the street by the line they now claimed. Mr Pjjmmer had taken the land, allowing -for 'those .steps which they had pnt there themselves.

His Honor, referring, to the nature of tho dispute and the desirableness of a settlement, sabl he supposed the plaintiffs did not want a public street that would he called “straight.” The further bearing of the ea = o was adjourned until 10.30 next morning. ‘

On Thursday Air Justice Dermistou resumed lhe bearing of two actions, in the first of which the City Council sued John Plimmer to obtain possession of parts of the highway known as Plimmer’s Steps in his possession, and to restrain him and the District Land Registrar from giving efieci to an application to bring certain sections under the Land Transfer Act, in so far as it affected part of the highway in question. In the second case, John Alfred Plimmer, son to the previous defendant, was proceeded against on similar grounds. By consent both cases were taken together. Mr T. If. Alartin appeared for plaintiffs. Air W. H. Quick for Air John Plimmer and Air AI. Chapman for Air J. A. Plimmer. His PI on or observed, with reference to a remark made by him on the previous day that “ personally, he would like very much to nonsuit the plaintiffs,” that the statement appearing baldly, as it did, might be interpreted to mean that he desired to see the plaintiffs defeated; whereas what he intended to convey was that he would be happy to be done with the case. Counsel assured his Honor that they attached no other meaning to the expression. John William Davis, certificated surveyor, at present in charge of the Land Transfer Office in Christchurch, .and formerly in charge of Wellington office, deposed that lie had be<?n attached to the Survey Office since 1867. He remembered an- application being put in to bring the land at both sides of Plimmer’s Steps under the Land Transfer Act. He identified a plan (produced) as having been put in with applications by the two defendants. It was his duty to examine such plans. Before that, the City Council bad asked to have a plan of the street put in by

them examined, but they , were told that for the purpose application should be made to bring the land under the Land Transfer Act, and -that was subsequently done. His objection to plaintiffs’ plan was that it neither agreed Avith the occupation, nor Avith the grant. Any plan could only approximately agree with tho grant —that Avas to say, in the absence of surrey data, it could only he fixed by scale and dimensions, with a probable variation of from five to ten links. Even then, he Avould disagree Avith Air Ward’s placing of the street. He believed they could scale SAvainson’s map, which was very Avell applotted, to within five links of accuracy; certain differences Avould arise owing to the shrinkage of the paper. He explained, that there were certain points on which 1 he and the other surveyors were agreed, and went over the maps in detail. The av it ness stated that the existence of dotted or broken lines on a plan Avas open to various and somewhat contradictory meanings. One explanation would bo afforded by environment _and" another by knowledge of the practice of the office. Some of the old maps had dotted lines where there Avas no occupation and a firm line Avhcre there was occupation. He believed there was a clerical error in the plan attached to the Crown, grant. He was of opinion that the dotted lines on Swainson’s plan were meant to indicate an unsurveyed position simply sketched in. The particular line in question might be used to define a curved track following the contour of the hill. There was nothing on the land or on any of the maps to indicate that the place had been surveyed. Witness had suggested a compromise, not officially, but personally. Air Quick asked were the defendants agreeable to accept the compromise?

His Honor observed that refusal to compromise, or otherwise, would not affect liis decision as to the legal rights of the parties. It might affect twelve intelligent men in the box, but it would have no influence Avith him. In reply to Air Martin, witness said the difference in existing lines of occupation as compared Avith the CroAvn grant was far greater than he Avould expect to find, eA r en where there had been no survey. He had seen the steps during a short visit to Wellington in 1873, and his recollection was that the upper part was very much as it Avas now. The existing steps were not there then: he believed the steps there in 1873 were straighter, and started from nearer the Athenaeum, and, to the best of his recollection, they were a single lino of steps. He thought they were closer to the workshop on the righthand side going up, and that there was a slight bend with a handrail. He was net very distinct in his recollection of the place, but he thought the steps were not a.s wide as at present. His Honor said he was very much assisted by the witness's very clear, and it he might say so without presumption —very intelligent evidence. Henry G. Price, authorised surveyor iit charge of the Survey Department of the Land Transfer Office, gave evidence similar to the previous witness. Dotted lines on a plan, such as _ Swainson’s, meant an approximate position, or one that had not been fixed definitely or surveyed. • , ~ - Robert Caldwell, draughtsman m the Crown Lands Office, gave corroborative evidence. ‘ ~ . , Augustus Philip Alason, authorised surveyor and draughtsman, bore out the evidence of the other surveyors, and expressed the opinion that if Swainson s lines were adhered to, Plimmer’s Steps would °-o right into the hill, and would probably miss Bouleott- street altogether. , Mr Seaton, recalled, proved a traverse line laid out on a copy of Mx Ward’s plan, showing that it Avas possible to transfer to the ground the line of the street as indicated on SAvamson s map and on the Crown grant. George Alfred Harris, bricklayer m the employment of the City Council, deposed that he Avas reared on the Terrace and' was quite familiar wit a 'Plimmer’s Steps. The fence on the left-hand side coming doivn Avas always there in his memory, hut the steps were not always in the same place. Witney built the present concrete steps about ten years ago, in the same position as the asphalt ' steps were placed twenty-five years ago by John Gregory, "who was still in the employment of the City Council. William Pierce, carpenter, who has lived in Wellington since 1877, deposed to having put up a neAv fence for Air Piimmer about thirteen years ago, on the same line as the old fence. He believed that some of the old posts were still there. There Avas a willow tree standing inside the fence, and the stump was there yet. Isaac Piimmer, eldest son of John Piimmer, gaA r e evidenjee that he arrived in- NeAv Zealand Avith his father in 1841. He was then s’x and a half years of age. They landed at Kaiwarra, and lived first at To Aro flat. They were living on the present- site of Barrett’s Hotel Avhen the earthquake of 1848 occurred. At Qie time his father Avas carrying on business in building, lime-burning and brickmaking. His father erected a fence on the righthand side of the steps going up, about 1850. It was necessary to have a yard for storing timber, and the timber was kept where Willowbank house Avas now. His father rebuilt Fitzherbert’s house,

which was knocked down by the earths quake, in 1849, and tlie 1 fence would have been put. there not later than 1850. Witness and his people wont to live in a cottage on the site of Willowbank house after the earthquake. He remembered a track coming doAvn. from Bouleott street in 1843 or 1844. It Avas about 2ft wide and Avas cut out. It ran alongside the fence erected by his father. To the best of his knoAVledgo the fence Avas still in the original position in which it was placed in 1849. The present highway was in the same position as the original track in 1843, except that it was very much wider. John Alfred‘ Piimmer, defendant in one of the actions, deposed that lie Avould bo fifty-seven years of ago next August, and could remember about fifty years. Fifty, years ago the fence was on the same lines as now. 110 remembered the Avillow tree mentioned being planted by one of his brothers betAvoen 1850 and 1855. It was cut down two or three years ago for the purpose of having the yard concreted. The stump was never removed and was s-tili underneath the concrete. The t.reoAvas originally planted inside the fence, but grew through the fence- and the fence was adjusted to it on both sides. The fence was still in the position it had ahvays occupied. When the steps were erected, the fence was brought out about 2ft at the head of tile steps, so as to prevent a gap being left there. That would be for a length of about 10rt, narrowing it at an angle, and was not clone for the purpose of encroachment, but in the interests of public safety—to prevent a dangerous gap.

In answer to Ids Honor, Mr Martin said the fence was excluded in the application. Witness, continuing, said the street was only 6ft or 7ft wide at first, but was widened gradually. In ans Aver to Air Quick, witness said the coinjiromise attempted with the plaintiffs did noo come to anything, because they thought they had a right to more land on the eastern side than witness and hi.s father Avere prepared to give.

Replying to Air Martin, witness expressed the opinion that the fence was put in the most convenient position according to -the nature of the ground and without a survey. Charles Piimmer, brother to the previous witness, testified that he Ava 3 born in the cottage at the back of Willowbank house in 1849, and could remember as far back as 1853 or 1854.

His Honor considered-that the identity of tho fence was pretty well established, unless Air Martin intended calling rebutting evidence. The testimony of all the witnesses except one was the one wav with regard to the fence, and that one witness was simply conjectural. Air Alartin replied that he did not purpose calling evidence to rebut. In further examination, the witness corroborated the evidence given by his brothers. Air Alason, recalled, stated that the lino of street as marked on the copy of Air Ward’s map would cut through the steps and passage leading up to an existing house. This closed the evidence on both sides, and counsel addressed the Court. His Honor observed, during the course of Air Martin’s address, that the plaintiffs appeared to be taking the risk of a tremendous responsibility in giving up the existing road, and construcing a new one at great public expense for the sake of having* a straight road to street. At the conclusion, - ho intimated that he Avould reserve his decision, at the same time suggesting the reasonableness of the parties regarding the matter in the new lights which had been thrown upon it.