COURT REPORTS.

New Zealand Times, Volume XXIX, Issue 6343, 18 October 1907, Page 7

COURT REPORTS.

SUPESiKE COURT. THURSDAY, OCTOBER 17. POET NICHOLSON HIGH-WATER MARK. AN IMPORTANT JUDGMENT. (Before Air Justice Cooper.) His Honor delivered his reserved judgment in the case of hia Majesty the King v. the PnkoUipu Sawmilling Company (substituted defendants for Haiiev ami Ewing, the. original defendants). ivii ; eh was tried before him in the ba--dnning of last month, when Air Myers, with him Air Fell, appeared ior the Crown, ami Air Treadwell ior tho ucfeudauts. His Honor, in the course of his judgment, which tool', an hour and a quarter to deliver, said“ This is an action in which t lie' Crown churns tq recover possession of two pieces of land in the City of Wellington, each being part of original section 21a, one containing i-i perciies, and tlus other containing 1-12 uc re ill's. Tire action was originally e -uinst Messrs Hailey and Ewing, but this firm on May Ist,’iDCG, delivered possession of Hit) land claimed to the Pukctapu Saw milling Company, and the* compauv has ever siaco been, and is still, in ooscessiou ol tlie land. By consc*nt the'l'ukrtapu Sawmilliug Company were at till- trial substituted as defendants for Halley ami Ewing. GROUNDS OF DEFENCE.

The amended statement of defence set, no six grounds of defence-.—(I) Iho defendants deny that the lands claimed ace Crown lands or demesne lands of tee Crown; (2) they deny that they arc now or were at the commencement of the action in unlawful possession of the laud:, and without any right, title, or license; (3) thev allege that the lands churned are vestal in them for an estate in fee. simple; (1) thev allelic that the landrelaimed were on .lime 24th. 1874, granted bv the Crown to the Mayor, councillors and citizens of tho City of Wellington: (o') they sav that under and by virtue of the term's of the To Aro Reclamation Act, 1879, the Wellington City Corporation was authorised to reclaim from tho sea the land described in the grant of June 2-1 th, IST t-; and that if the lands now claimed bv the Crown aro not comprised in the grant then, that the Corporation purporting to act under the terms of the Act of 1879 and believing t.hat the narocls of land described in the statement of claim were included in the grant, and with the consent and acquiescence of tho Crown, reclaimed the sa,ino from tlip sea; aml believing that the latula now claimed were part of the land comprised in the grant, and that it (tho Corporation) was entitled to act under (he powers conferred upon it by the Act of 1*879, contracted with one -W illiara Freeman, tho defendants’ predecessor in title, as the owner of adjacent land having a frontage to the sea, and compensated tho said William Freeman nv the silo to him of land abutting on his raid land having a frontage to the r.ca bv transferring to him, and contracting to transfer to him, the whole ot tho loud lying between his seaward frontage and tho street now known as Victoria street in the City of Wellington. That nart of the land so transferred or contracted to bo transferred is the land sought to be recovered in this action, the defendants, therefore, say that rile Crown acquiesced in the Corporation so reclaiming tho said laud, and so compensating William Freeman, and that his Majesty the King stood by and permitted the Corporation to reclaim the said land from tho sea, and to agree to compensate William Freeman on tho basis aforesaid, and that his Majesty ought not in equity to be _ entitled to assert that the land now claimed by the Crown was not land which tho Corporation was entitled to reclaim from the sea or to transfer or to contract to tranfser to William Freeman as hereinbefore alleged. Thev also assert that pursuant to the said' transfer and contract possession of tho said land was delivered to Freeman, and that ho and his successors in title have over since been in possession thereof; (6) they say that by a grant from the Crown dated March 30th, 1807, in favour of Hemi Parai and Te Muni To Orohiro, lots 6 and 9 of Te Aro Pa Reserve were granted to tho said grantees, and in tho said grant the same were described as bounded towards the north by Lambton harbour. That by a certificate of title Halley and Ewing were, prior to May Ist, 1006, and the defendant company now is, entitled for an estate in fee simple to part of the land comprised in such last mentioned grant, such Land being therein described as being bounded towards the north by tho harbour, being Lambton harbour aforesaid. That the land sought to_ be recovered in Mbis action is comprised in tho said Crown grant and certificate, but if it shall be found that it is not so comprised, then they say that his Majesty is estopped from denying that the northern boundary of tho land comprised in tho said Crown grant and certificate of title was Lambton harbour. They assert that Halley and Ewing had, and that the company now has, a water frontage on tho northern side of tho land comprised in the grant to tho natives and in the certificate of title. They allege that if on the boundary of tho said land being ascertained it shall bo found that there is the strip of land sought to be recovered in this action lying between the land comprised in tho said grant and certificate of title and tho land comprised in tho grant to the Corporation of tho 24th June, 1574, then, that by the effect of the said grant and certificate of title they are entitled to free and unrestricted access from every part of tho northern frontage of the land comprised in tho grant to the natives and in tho certificate of title over • .every part of tho-said strip-of land sought to bo recovered in this action to the land now vested in them and transferred, to tho said William Freeman as alleged in the fifth head of defence. They say that if tho land sought to be recovered in this action is Crown land or land of the Crown, his Majesty’s title is subject to the defendants’ rights eot out in the sixth head of defence. THE CASE FOR THE CROWN.

Tho case for tho Crown, as disclosed in the pleadings, is that tho lands claimed are Crown lands or demesne lands of tho Crown, and that they have never been granted by tho Crown to any person. Tho defendants* case is that the. lands in question wore granted to the Corporation of Wellington" by the grant of the 24th June, 1874, or n not so granted, that they became vested in the Corporation bj r virtu© of the provisions of the-To Aro Reclamation Act, 1879. Alternatively, . that if not eo granted -. or so vested, tho Corporation reclaimed them from tho sea and -purported tc transfer them to Freeman, and that the Crown stood by and permitted this to bo done and is estopped from now sotling up a title to them. The reclamation was subsequent to the Act of 3879. and, therefor©, no title by--possession ha® accrued, the Crown, assuming that the lands have not been granted by Crown grant or vested in the Corporation .by. statute, not having been out of possession for sixty .real's. In so far, there-' fore, as this alternative defence is intended to raise merely an estoppel it is clear that that cannot be pleaded against tho Crown. In the further alternative the defendants* roly upon a grant to tho natives which they ear gave the grantee® a water frontage to Lambton harbour and a certificate of title under tho Land Transfer Act, ’ in which the ‘same frontage is they say' given, and that they derive title through this‘grant and certificate of- title,'and they claim that if tbo.lands claimed by..the Crown have never been alienated* by the Crown then, as tho effect of the To Aro reclamation was to shift the line of water frontage further into the imrbniir, the defendants are entitled to a perpetual rir rh ‘ of passage to the water over tho land

reclaimed from the sea, and, therefore, [ i mar the land now claimed by the Crown. I. ORIGINAL SURVFiY OF WELLINGTON. |; The citv of AVellingion was originally U purveyed "for the New Zealand Land - ] Company bv Captain Smith in 1810. ] Captain Smith's original plan of that i part of the city in which section 215 is i situate is extant, it shows sections 213 ; to 226. both inclusive. Sections 213, 2U. I . and 215 have as their southern boun- , elarv Manners street. The northern: boundary of these sections and also ot {, a section between sections 215 and 21C, I, and which in later plans is marked as ; a reserve, is shown as below hign-water mark. Tho southern boundary, Manners., street, may lie taken to oe. a fixed boun- | elarv, and it is the present line of Man- 11 uers street. The survey appears to have ■, been a careful survey. The plan wa.s otherwise founded upon Captain Smith s -. survey. THE LOST WATER-MARK. jj The New Zealand Company surrender- -' cd its charter, and all the lands of tho , company which had not in tuo -mean- I • time been conveyed by the company to | third persons, were devested Irom. the j company ami revested in her Majesty the Queen as demesne lands of tire Crown. Contracts not actually earned into effect by conveyance were protect- | ed, and power was given to tho Cover- .' nor to issue Crown gi ants to , persons ; who, within a limited tunc, esUitmslicd their right to laud purchased from Hie • company. Some grants were issued of land abutting ou the Te Aro beaea, but not of the land on which was tho native pa, which described the northern bouu- • darv us low-water mark. On Aiarch 22nd, 1817, Colonel McC loverty settled certain questions concerning certain native reserves in the town and district of Wellington, and obtained an agreement signed by the Te Aro pa natives. Colonel McCleverty was an officer appointed by her Afajesty to assist the New Zealand Company, and to see that tho natives were fairly dealt with, among other things, with respect to reserves. THE GREAT EARTHQUAKE. No step was taken to subdivide this area until August, 18GG, nor were any Crown grants issued in respect of it until Aiarch, 1867. In the interval two | great earthquakes had occurred, the first in ISIS, and the second in 1855. Tho effect of tho earthquake of 1855, is thus stated by Mr Justice Richmond in Seagar v. Hie City Council of Wellington : “The past earthquake of 1855 elevated all the laud in this neighbourhood to an extent which is variously estimated at from two to three leet perpendicular, causing the recession of the foreshore tor a considerable distance.” Major Roberts, of the Royal Engineers, reported upon tlus earthquake immediately after its occurrence :—“The harbour of Fort Nicholson, together with the valley of the Hutt, is elevated from four to five feet, tho greater elevation being ou the eastern side ot the harbour and tho lesser on the western/' Air Justice Richmond also states in Scagar’s case “Since the earthquake various natural forces and artiiioial operations have from time to time affected the level of the ground, and have increased the ditlxculty of ascertaining the position the foreshore prior to the earthquake. it appeared that after the earthquake of 1b55, and tho consequent recession ot tho foreshore, and before 1860 and 18G7 considerable quantities of gravel and debris were deposited on the le Aro beach, and considerable quantities were also carted away. This continued after 1866, but up to August, 1566, tho probability was that what was removed was about equal to what was deposited, and that tho lino of ordinary high-water mark remained much the same as it was left immediately after earthquake.

THE NATIVE TITLES. In August, 1866, a survey of the land guaranteed to the natives of tho Te Are pa by Colonel McCleverty was made by a Mr Swainson, a duly authorised Mr is dead. His field-books cannot be found. His Honor held that tho plan was evidence establishing the fact that his survey defined the northern boundary of tho laud as a line as above high-water mark, and that there was a strip of land the width of, which was approximately shown upon the plan between the northern boundary ot the lots and ordinary high-water mark. The explanation was that a definite area of land was awarded by Colonel McCloverty to the natives in 1847. The recession of tho line of high water caused by the earthquake of 1855, resulted in laud which in 1847 was a part of tho foreshore being reclaimed from the sea. His Honor found, therefore, as a fact that tho subdivisional lots wore not surveyed to high-water mark, but had an inland northern boundary. In hie Honor’s opinion, the land granted to Hemi Parai and Te Muni to Arohiro did not extend to high-water mark, and the strip of land which in 1866 existed between the northern boundary and high-water mark did not pass by the grant. THE DECISION. In my opinion, said his Honor, _ the Crown "has established that the pieces of land possession of which is claimed in this action have never been granted by the Crown, and are still vested in his Majesty. I have come , to tho conclusion that the lands claimed in this action by the Crown have never been granted by the Crown,. and that tho defendants have no title ’ to them. As tho Crown has not been out of possession of these pieces of land for the period necessary to bar the right of his. Majesty to maintain t this action, tho plaintiff is entitled to judgment for possession. Bv .agreement made by counsel at the tria"! the question of mesne profits is ,to stand over, Question of costs to stand over until the question of mesne profits is settled. MAGISTRATES’ JURISDICTION. (Before Mr W. G. - Riddel], S.M.) POLICE CASES. Mary Hill, alias Florrie Hill, was fined 130 s, in default seven days’ imprisonment, for disorderly behaviour - whilst drunk in Abel Smith street. , John Ferre] was fined A 3, in default fourteen days’ imprisonment with hard labour, for committing a grossly indecent act in Taranaki street on Wednesday. George Cowen was remanded to appear at the Magistrate’s Court, Feilding,, on the 23rd inst., on a charge of theft of .213, tho property of David Morgan, at FoiUUng, on October 16th. (Before Dr A. McArthur, S.M.) CIVIL BUSINESS. UNDEFENDED. CASES. . Judgment for plaintiff in default of defendant was given in each of tho following' cases; Rouse and Hurrell Carriage Building Company, Ltd., v. Albert E. Flyger, A 7 14s 6d (costs .£1 11s 6d): C. M., Banks, Ltd., v. Arthur Charles Nicol, .£4 7s 6d (10s); Herbert Barraclough v. Wireniu Wi Neera, .£3 (.Cl); Hans Pauli v. Dora Cook, A 3 10s lOd (os); Robert Henry Johnson v. Mona Forth, -E4 18s 4d (10s); Thorndon Cricket Club v. -Thomas Mclnernoy, 13s (ss); J. G. AVilkes v. Henry J. Jenner, AlO Is 3d (A 1 12s Bd); AA'ollingtou Traders Agency as assignees of Arthur Hoby v. Horace Powell, A 3 (11s); Robinson and Perrin v. John Morgan, 18s (os); Charles Bradshaw v. Tangata Ke Hapuka, A 5 (A 1 5s 6d). JUDGMENT SUMMONSES. Charles AVilliamson was ..ordered to pay the sum of A 7 11s 6d to E. W. Burton on or before October 31st, in default seven days’ imprisonment. : DEFENDED . CASES. . Tho AVellington- Traders Agency, as assignees .of Arthur Hoby (Mr ■ Jackson)suetl Thomas. .Nicholas (Mr Neave) for A 7 for dental work done. After- a partial hearing; the -case was adjourned until November 7th, to enable counsel for plaintiff to call Mr Hoby, - who- is now in Auckland- . Mary Walsh obtained judgment against Mary McNab for possession of

| tenement and rent, =£l4 13s, with costs ! XI 15s Gd. i Richard Nlovzc (Mr Jackson) sued Mrs I Angela Warren (Mr Dlx) for possession Inf chattels, valued at X 3 12s, and XI 8s ! damages. After hearing the evidence Uh Worship considered plaintiff had not proved his case, and gave judgment for defendant, with coste XI Is. I Thomas O'iiagan, of Wellington, dairy--1 man (Mr Devine;, sued Frederick Har- ! rington and Alfred Harrington, ot .Brooklyn, dairymen (Mr kmuiay;, for •Jj'd lUs 8d for milk supplied, milk cans I delivered to defendant's but not returnled to plaintiff, and time expended by ; plaintiff and his servants in seeking for I empty milk cans not duly returned by ; defendants. Defendants admitted liability i for -£2 his 2d, and paid this amount imo I Court. Defendants counterclaimed Xls special damages for loss of action ; fciirongh plaintiff supplying sour milk ior milk of an unmeredumtabio quality {to them, X 5 general damages, and the i costs of tho counterclaim. After !u iiagaa s evidence had been taken, tho : further bearing of the case .was adjourned until October 31th. j (Before Mr AV. G. Riddell, S-M.) ' Gordon and Gotch Proprietary, Ltd. (Mr Somerville) obtained judgment against Ellen Cockayne, of the Deviuj than Hotel, Christchurch, for X 5 for ’advertising expenses, with costs X 4 (is. i Defendant's evidence was taken at Christchurch. : John William Chase, shearer (Mr Luckio) suud Edward Joshua Kiddiford (Mr Myers) for £o 7s 4d, for shearing 72 ( J sheep on the Orongorongo estate, at 17s ed per hundred. After plaintiff's evidence Jiad been taken, the iurrffer hearing was adjourned until January 14th, H/i'JS, as defendant and his son, who managed tho estate, are absent from the Dominion, but aro timed to return by that date.

A TRAMWAY COLLISION. CORPORATION SUED FOR DAMAGES. Dr A. McArthur, S.M., delivered written judgment in the case of William iJeury Smith (Mr O’Regim) v. the Wellington City Corporation (Mr'O'Shea), On August 9th a tramcar proceeding along Customhouse Quay, toward the Government railway station, collided with an express that was being driven by a servant of plaintiff along Johnston street toward Customhouse quay. Tho two horses in tho express were so severely injured in the collision that they had to bo destroyed, and plaintiff sued for tho loss of his horses, on tho ground of negligence on the part of the motorman in charge of the tramcar, claiming X 63. His Worship said:—“Apart from the merits of the case, the counsel for the defence contends that the plaintiff cannot succeed, inasmuch as no notice in writing was given by tho intending plaintiff or prosecutor to the intended defendant before the commencement of the action or proceeding. Section 402 of the Municipal Corporations Act, 1900, states as follows:—‘No action or proceeding shall lie against the Corporation or Council of any borough . . . for any alleged irregularity, or trespass, or nuisance, or negligence, or any act or omission whatever, unless notice in writing (specifying tho cause of tho action or proceeding, and the name am) residence of the intending plaintiff or prosecutor, and of his solicitor or agent in the matter) is given by the intending plaintiff or prosecutor to the intended defendant one month at least before the commencement of the action or proceeding/ This section is mandatory. The interpretation clause provides that ‘Borough Council' includes a City Council. In reply to this contention, counsel for the plaintiff contended that certain correspondence had passed between him and the Town Clerk of tho ! City Council, and that this correspondence amounted to notice under section- - In my opinion, such correspond-; euco docs not amount to, and cannot be taken, in substitution for, tho notice re-; quirec! by tho section. I consider that the objection taken for the defence must bo upheld, and on that ground alone tho defendant is entitled to a nonsuit/' Proceeding to the merits'of the case, his Worship said he had no hesitation in stating that, in his opinon, . the driver of the express was guilty of negligence, and was solely responsible- for the accident. Tho motorman was on a straight course, which the express driver undertook to cross ahead of tho tram in order to get to the far side of Customhouse quay. He admitted that ho went round the corner at a slow trot. Further, several statements by two witnesses for plaintiff were contradictory. Counsel for the defence also relied on by-law No. 42 (11) of tho city of Wellington, in addition to section 402 of the Municipal Corporations Act. This by-law provided that—“ Any person shall bo guilty of an offence who drives any vehicle at other than a walking pace round any corner of any of tho streets or public thoroughfares/' The driver of the express admitted that he went round the corner at a slow trot, and such conduct in the circumstances of thb case amounted to contributory negligence. “Tho whole of tho evidence for the defence distinctly shows that there was negligence on the part of the driver of the express. It also shows that the motorman rang his bell. I consider that the driver of the express acted in such a manner as to render- tho accident inevitable. I believe the motorman could not have avoided the accident by use of the kind and degree of care necessary to the exigency, and in the circumstances in which ho was placed. Doubtless, when a man's act is the apparent cause of mischief, the burden of proof is on him to show that the consequence was not one which by due diligence ho could have prevented. In my opinion the defence has discharged that burden. Inevitable accident is not a ground of liability." His Worship quoted many English and American decisions on this point, and concluded: — “In my opinion plaintiff must be nonsuited under section 402 of tho Municipal Corporations Act, 1900. Further, I am of opinion that the plaintiff was guilty of negligence in crossing the corner of a street at other than a walkdug pace. X am also of opinion that the defendant's servant did all that -was required of him in tho exigency and under the circumstances of the case, and that there was no negligence on his part. Judgment for tho defendant, with costs, M 55."