HUTT COUNTY CASE

New Zealand Times, Volume L, Issue 11437, 6 February 1923, Page 7

HUTT COUNTY CASE

OWNERSHIP OF A ROAD. JUDGMENT FOR DEFENDANTS. Judgment was delivered yesterday by Mr Justice Reed in the case of the Hutt County Council versus Whiteman Brothers, of Upper Hutt. The case was heard on October I6th. when Mr T. C. A. Hislop appeared for the plaintiffs, and Mr 'O. C. Maaengarb for the-defen-dants, for whom His Honour has given judgment. In tracing the history of the case, His Honour said:— “This is an action for possession of a portion of a road, brought by the council against the defendants, who are settlers in occupation of land adjoining a road within the county, and who, it is alleged, have encroached upon that read. A month after the issue of the writ an Order-in-Council declared portions of this road to be a Government road. If this proclamation he valid, the jurisdiction of the county council is ousted over the greater portion of the parts of the road upon which it is alleged the defendants have encroached, leaving only about six perches, valued at a few shillings, to which the claim can apply. The validity of this order is attacked by the plaintiffs upon the ground that the pieces of road purported to be declared a Government road are not a continuous line of road, hut are merely strips and portions incapable in fact of constituting a road. “This allegation is only partly supported by evidence. An Oraer-in-Oouncil is an. act of the executive council purporting to he made under statutory authority, and, if it is deisired to attack such an order, the Attorney-General must he joined as a party. The validity or invalidity of an Order-in-Council cannot he decided as a side issue to a proceeding between a local a private person. I shall. therefore, first deal with the case on the assumption that the order is valid and that the only question before the court is the matter of six perches of land valued, as I have said, at a few shillings, and which it is admitted is included in the defendants’ ring fence and has been so for a period of thirty years, and which the defendants admit is wrongly so included and to which, as an actual matter of fact, they make no claim.” “The defendants are owners and occupiers of sections 362 and 363 of Block IV. of the Akatarawa Survey District, situated in a valley of the same name. They acquired it from their father in 1902. At the time the father purchased the property there were neither formed roads nor fences in the valley. ' A two chain road ran through it. It is doubtful if this road was ever pegged out, but its position was known approximately. As time went on the settlers began to erect fences, tho line of these being selected according to the contour of the country and close to the formation of the road.

"ft was claimed on behalf of the plaintiff council that the action was brought as a test case to ascertain whether the council has jurisdiction over the road. After reviewing the law bearing on the matter at considerable length, the judge concluded: “The plaintiffs in this case have no state or interest in the land. . . . The soil of the road is vested in the Crown, and the plaintiffs were merely custodians in charge of the Crown's property with certain limited rights. Such rights do not constitute cither an estate or interest in the land. . . . For tho reasons stated,, therefore j'udgment must be for the defendants with costs on the lowest scale, nnd T certify for £ls l-5s for one extra day of trial.”