SETTLING BOUNDARIES OF RUNS.

Otago Daily Times, Issue 2048, 28 August 1868, Page 2

SETTLING BOUNDARIES OF RUNS.

At the sitting of the Supreme Court wt Banco, on Monday,'^ .Mr Justice Chapman delivered judgment in the case of The JS'ew Zealand-and^mtralian Lomd-Contr panyv. Boyes and Another. His Honor said— .

This is a rule for a new trial of certain issues found by the jury in favour ot the plaintifls, on the SOfch March last, Tile grounds relied upon are two : Ist. Thafe the finding -of thejiuy was against evidence ; and secondly, Ithat Tmisdirected the jury on the 12th"issue in telling then* that even if there had been no settlement of the western boundary of run No. 330, before the meeting of the "Waste Lands Board- on the 9th of June,. 1864, the prd-. ceedings on that day (that is the appearance of the plaintiffs before the Board t<j* protect their own interests), did not constitute a dispute within the meaning of the 96th clause of the Waste Lands Regulations. The rule was argued before me on the 30th of June, and the onlyissues treated as material, so far as this rule is concerned are : the sth as to the' first ground, and the 12th as to the second ground.; The fifthossue is : as follows :— "Was the western boundary of run 330, between the date of the licences XlSth May, 1861) and the 31st of December, 1863, fixed and adjusted by and with the authority of the WasteLands Board, or of the Chief Commissioner thereof, in the exercise of his lawful authority in that behalf, as alleged in the Bth paragraph of the declaration. V* It is clear that when the ; license for ran Ho. 330 was isßued, the western boundary was'left unsettled. The words "western boundary unsettled" indicate that something remained to be done by the Waste Lands Board, in order to settle that boundary. I cannot, agree "with the i learned counsel for the defendants, that this uncertainty as to the boundary renders'the very title of the plaintiffs bad, in like manner as uncertainty in. & Crown Grant would do. The license ta depasture sheep and cattle on the waste lands of the Crown is subject to a similar right conferred upon adjacent licensees. Without a settled boundary betweeix them, the neighboring licensees would be put to prove their respective rights, as in Victoria (where the Crown does noc bindl itself to boundaries), };y evidenca of continuous and unabandoned occupancy.. Here one boundary is left undeteratined^

——^p_—.—_ . •which affects the licensed of run 345, as well as the licensee of No. 330, and the uncertainty is capable of being cured by the same authority as that which issued the original license. The right conferred is similar to, though not precisely identical with, a right of common, which maybe to depasture a specified number of cattle, or it may bo "without stint," subject to other similar rights, without specifying boundaries. Thus it appears to me .the .question is confined to what is stated in the first ground, namely, Was there evidence of any settlement of the boundary between the runs No. 330 and No. 345, before the 31st of December, 1863 ? The old map, as it was called, was in existence before the date of • the license. That map has a line running, north and south which, had the-license contained no reservation, would have been "quite sufficient for the purpose of ascertaining the boundary between the two runs. But with full cognizance of that map with the line; so laid down, the license was issued with the words " Western boundary unsettled." Hence the old map cannot be considered as evidence at all, nor was it relied upon .for the plaintiffs, except for the purpose of comparison, and perhaps to impart more weighty to ; the line laid down upon the new map. But the map called the new map-was constructed after the issuing of the licenses. ■ It contains a line running north and. south, nearly coinciding with the line on the- old map, and "forming the western boundary of run, No. 330. It is therefore of importance, to consider,whether the laying down of this boundary. line off the' second map is shown by the evidence to ■ constitute a fixing of the western boundary "by the authority of the Waste Lands Board,"-or-tof the; Chief 'Commissioner thereof," within the .meaning ,oi the sth» issue, corresponding, with the averment " in the Bth paragraph of the declaration. It is necessary to refer to the evidence as to the mode and intendon of the structure of the second map. Mr Thomson's evidence is .this :—" The western boundary is substantially the same in both maps— very nearly so. Mr M'Kerrow, who constructed the map, is very accurate,''" We had theT&oiuidarie's -settled,- "but *tKe r snt«rior;:'was~unknown. "The "new map 7 was thW first "accurate map for settling the boundaries. It was completed in March,: 1863, and was sent to the Waste Lands; _ Board on the 22nd October, 1863." Now, there is nothing in this evidence to showthat the construction of ■"this map by Mr" M'Kerrow^ though 'Thomson says, . " We^'^that -is, himself and Mr M'Ker-' row—"had the boundaries settled," was. • a settlement -by the : authority of the ' Waste Lands Board, or. of the Chief Com-,1 missibne'r: It. seems'ra'ther to Have b'eeri;1 a necessary preliminary to such a settle-1 ment of boundaries. It was completed;' ia March, . ; but was not sent .to the Board until October, ~..- 1863, and . ; there is no evidence that it was-adopted by the Board as such a settlement, or that the Survey Department was instructed to construct it .as a settlement, of boundaries. Mr "Thomson's expression, " The new map was the first accurate map for seAtimsboundaries," seems to imply that ii^pt; not a mode of settling boundaries, but merely.^an accurate means by. which the Board wpuld be enabled to do so. Mr Cutten's evidence is of import tance to aid us in determining whether the construction of the new map with the north and; south line, shbw-.^ing-jthe western boundary of run No. as the plaintiffs contend5 it ought to! be, was-a settling: of the boundary, in furtherance of the reservation on the face' of the license. He says.: ."Xi was contended that the western boundary had been laid down in the new map.; It had never been Axed by the Board before"-— meaning before the 9th June. : Again he says: ,^;So- far as the Board > was concerned, the matter had never been adjudicated before." He does not say that he had,, fixed' the boundary, or that it had been^ fixed by lis authority; nor was he ' asked' any questions on the point. Mr Cutteri,; individually, -was in Savor of the line ..'as-.' laid down on the new map; and there — had been some meetings of the Board' before, but it did not appear that there had been, any .decision... Mr Cutten says, ""It had been before the Board jon the :23rd of May ;'* again, tf at an intermediate meeting (perhaps that; of the 23rd May), the Board, was equally^ divided, Mr Logic being with me;" but. there was nothing said to show that there" was -at any meeting any settlement of the boundary, ,or any1 settlement _by the authority of the Chief Commissioner. There was indeed a good deal of evidence; in favor of the north and south line,'as pursuing the main chain of the Remark-:. -■ ables ; but that is not the question raised, which is confined to the evidence in support of the finding on the sth issue, and upon that-point I can come to no other" - conclusion than that the defendants are ■ entitled to a new trial. As to the alleged misdirection, I stiU^retain my opinion', that if the proceedings of th^ Board qn ■ "the 9th of June are. rightly treated'as proceedings under the' 96 th clause of .th^S rßegulations, .the mere appearance of ( the;i parties before the Board.-in- support ofi their respective rights, did not constitute a •dispute within the meaning of that clause. The 12th issue treats it as a proceeding under section 96—"Was there in fact • such a dispute within the. Waste Lands [Regulations'?" It may, however, be -doubted whether the Board considered this a proceeding under the 98th. .regulation, and whether it was in fact so. None ■ of the witnesses spoke of any dispute : Mr Cutten said he was not aware of any dispute, and he treated the whole proceeding as one to settle a boundary previously left unsettled. Mr Pyke said that the resolution "did not alter boundaries;" ~fchat the matter before the Board was, se where the-boundaries were," and that -there was a circular to all persons whose 'boundaries were to be adjusted. Rule absohite for a new trial; costs of 4he first trial to be costs in the cause.