COURT OF APPEAL.

New Zealand Times, Volume LXXV, Issue 5024, 23 July 1903, Page 2

COURT OF APPEAL.

THE SITE OF THE ALBION HOTEL, Yesterday the Court of Appeal, consisting of tho Chief Justice, Justices Donnistou, .Couoliy, Edwards and Cooper, heard a special case stated by agreement between tbo parties ui>ou preliminary questions of law in an action between the Wellington O.ty Qouncil and J. Staples and Lo,, Kiuymoad Tower Collins a.nd David John Kenny. Tbo action, lias reference to t;he ownership of a small piece of land comprising one-third of a perch in extent, at tho site of the Albion Hotel, in Courtenay p-aco. Staples and 00. are the registered proprietors of a lease from Collins, who is the owner in fee simple, to one William Clarko for a period of forty-two years, from April Ist, 1881, and tho defendant Konuy is in possession of tho laud, and is tho registered proprietor of an lunder-loase. Tho Corporation claims that the land sought to bo recovered is a public street, and is vested in it as an estate in fee simple’. Defendants deny such claim, and hold that they aro tho registered proprietors of the land bona fide and for.valuable consideration, that tho legal title is not vested in tho Corporation, and that tho action is not. ma-ntainablo. It is admitted that the pieco of land-sought to bo recovered has never been used as a public highway. Tho parties to the' action agreed upon tho preliminary questions of law being stated for the opinion of tho Conn-, before tho trial of tho facts, but not as an admission binding the defendants, if tho action should go to trial, that it should be assumed that tho piece of land, when tho city was originally laid off by tho New Zealand Land Company, was part of tho streets as shown on tho plan as Ccrurtcnay place and Tory street. In the month of February, 1901, the hotel" having, been almost totally destroyed by fire, the defendants, Staples and Co., in rebuilding pursuant to a covenant in the lease, sot hack the building to tho lino of Courtenay place, as claimed by the plaintiffs,, but without any admission as to the right of the Corporation to the land claimed in this action. On tho contrary, tho defendants erected a post and chain fence, which, with tho wall of tho building, enclosed tho piece of land in question, as an assertion that such land was tho property of tho defendants. Plaintiffs rolled, among other henries, upon, section 6 of the Laud Transfer Act, 1885, Amendment Act. 1889. It rvas agreed that the costs to he given against either party should not exceed £ls and disbursements relating thereto. Tho questions for tho opinion of tho Court were:—(l) Aro tho defendants the beneficial owners of tho said land? , (2) Is the legal estate in such land in tiro defendants? (3) Is the legal estate in such land in tho plaintiff Corporation f (4) Can tho plaintiffs in this action recover possession of such land ? Mr Martin appeared for the plaintiffs, Mr Stafford for R. P. Collins and Mr Weston for Staples and 00. and D. J. Kenny. At the outset, Mr Weston informed tho Conrt that his clients wore content to leave tho argument in the hancte of counsel for the freeholder. The case involved the ransacking of a considerable amount of ancient history in the-early settlement of Wellington, dating hack to 1849, and on tho arguments being opened a great divergence of opinion was found to exist between counsel as to what were supposed to bo admitted facts. . Tho Bench accordingly decided to remit the case to the Supremo Court to have the facts determined, tho Chief Justice remarking that nothing could he gained by entering into a purely academic discussion. Ton guineas costs were allowed to Mr Stafford.

THE COST OF THE HUTT BRIDGE. Argument was also taken on a specia. caso stated between the Lower, ilutt Borough Council and tho Wellington City Council, as to tiie question of whether tho defendants were “adjacent” to tho plaiutilf borough within tho meaning of section 2JL9 of the Municipal Corporations Act, 1900. Tho question aroaa in reference to tho erection of the new bridge over the Hutt river. On or about tho 13th February, 1902, the Hutt Borough Council served the defendants with notice under the section mentioned, of its intention to construct tho bridge and approaches, and that it was of opinion that the city would benefit thereby; further, of its intention to apply to the Governor for authority to erect the bridge and approaches, and to recover from the defendants a proportion of tho cost. On tho 11th April following, the defendants petitioned the Governor objeeing to the construction of tho bridge, and alleging that the city was not “adjacent” to tho borough of Lower Hutt within the meaning of section 219. On tho 16th June, 1902, the Governor issued a commission to Mr W. S. Short to hold an inquiry—(l)As to whether or not th 0 bridge and approaches over the river Hutt should bo constructed? (2) If so. which local authority could most conveniently con-s-truct the bridge and approaches? (S' What proportion of tho cost of coni strutting the said work should be provided and paid by each local aulhority whoso district won’t! benefit by the existence of the work? At tho sitting c-f the inquiry, defendants’ counsel raised the question that tho city wai

not an " adjacent ” disinct, oiiorcd to join in having, ino (lUooiio.; iiruugitl beloro uio auprciuc court lor ih vision, ami requested unit Uio proceedings ol UK! lOiiUlllsSlOU 1)0 aUjOlilllOU 111 Uio mcaiiuiuoj out. tlie course was not acquicsccd 1.1 by p.iuiuifl.s’ counsel or by Uio t oiiliniasioiß i. 'X no mu or proceed--011 to lake evidence, Had alter situngs iioid ou six days, roporlod on Uio hunters referred to ium. On Hie Mil .\o- \ ember iliu Governor issued a. warrant, authorising Uio pliuniiii borough iu amsi-ruc-t uio imago, u..d apportioning Uio cost as i'ul.ov.s: —Dower mitt Borough, GO per cone.; \i ollingion Guy C'uuncil, 20 per emit,; nuti. County, 12 par ecui,; ami Xrthoae Borough, o por cent. X’.aiiitiii's proceeded with Uio work, winch, it is ostmuUod, will cost £9OOO, and on January 31st made a payment on account of £I2OB 18s, of winch Uio proportion payable by the dofendauts uuuor the Governor's warrant would be £l2O 17s XOd. Demand iviis duly made for payment of Uio amount in accordance with the regulations. The Commissioner also made an order for payment of 20 per cent, of the costs of the plaintiffs, not exceeding £lO5. The costs exceeded that amount, but the defendants had not paid their proportion. Defendants contended;—(D That the city was not adjacent to tiro borough of rho Dower Hint within the meaning of section 219 of the Municipal Corporations Act, 1900. (2) That all the acts dono and proceedings taken under the said section, including the Governor's warrant, were dono without authority iu law and without jurisdiction, and wore therefore mill and void. (3) That tlio defendants were not liable to make any payment under the warrant or any payment for costs under the order made by the Commissioncr. Mr Treadwell appeared on behalf of tho plaintiffs and Mx Martin for tho defendants. Mr Treadwell opened the arguments, the whole point of the case resting on the interpretation to bo placed on the word “adjacent’ as contemplated by tlio section in -juestion. He held that tlio city must be regarded as an “adjacent ” district and as such was bound to contribute its proportion of tho cost of the bridge. In the course of argument, tho Chief Justice observed that tho Court' must assume that the city would benefit by the construction of the bridge. , Mr Martin argued that throe things wore necessary to establish that an outside district should contribute to a work of the kind—it must he adjacent; it must bo benefited by tho work; and it must be reasonable that it should contribute. At the conclusion of argument judgment was reserved, and the Court adjourned until 10.30 this morning.