SUPREME COURT.

Otago Daily Times, Issue 12782, 1 October 1903, Page 10

SUPREME COURT.

CRIMINAL SITTING. Wedkesdaj, September 30. ■ (Beforo his Honor Mr Juste Williams.) His Honor took his seat on tho bench at 10.30 a.m. ■THEFTS PBOJt DWELUHGS. James convicted in the lower court oi thett-of clothing, valued at £Blos,from tho dwelling of Charles K. Little, was brought before the court for'sentence. ' : ' Prisoner, in reply to the sheriff, gave, his jgo as 62, although the police report gave it ?.s 50. He stated' tlmtic wis a. .seafaring man, and too old to go to sea. • It was his first appearance before tho Supreme Court, his previous offences being of ft petty character and brought about through drink. If he was lcniontly. dealt with he would clear out of tho coloiiy as'soon as possible. The Crown Prosecutor (Mr Frasei) put in .the. prisoner's record, showing 15 convictions for various offences at Wellington and elsewhere. , Ten were for thoit, and the others for drunkehness'and disorderly behaviour. ' His Honor: None of the thefts were of a, serious kind, were they? Mr Eraser: No, they were petty thefts. His Honor: Ho seena to be tho victim of drunkenness. Mr Eraser: Yes, your Honor. His' Honor inflicted a sentence of three Souths, with hard labour. Otto Heerdegen, alias John C. Adams, convicted at Inwrcargill of stealing clothing and other articles from the dwelling of W. G. Mehaffey -was brought before' the court for sentence, . ■ Prisoner gave his age at 22, and had nothing to.'fiay, Mr Eraser said that tho prisoner was convicted at Christchurch on August 8 on eight charges of house-breaking, and was sentenced to two years' imprisonment. _ His Honor inflicted a sentence of sis months' imprisonment with hard labour, the sentence to commence at the expiration of the sentence prisoner is now serving.

CIVIL SITTINGS. (Before his Honor Mr Justice 'Williams.) DRIVER V. THE OTAGO AND SOUTHLAND. INVEST- ' IIENT COUPAMr AND OTHERS. An action for the specific performance of an agreement, and for the determination of plaintiffs right to a right of way over a certain picco of land. Mr Hosking appeared for the plaintiff, Mary Stewart Driver, wife of Harry M'Lean Driver, of Horseshoo Bush, farmer; Mr W. C. MacGregor appeared tor the defendants the Otago «nd Southland Investment Company, and Mr Sim and Mx J. I\ H. Fraser appoared for tho defendants the Ewing Phosphato Company.

In tliis case, which wa-s argued ou September 10 and 17, his Honor now gave judgment as follows:—"lu this ease, in order that thoplaintiff may succeed it must appear first oither that there was 110 contract between theOtago and Southland Investment Company ami tho Ewing Phosphato Company for tho sale to Mr Ewing through whom tho latter company claim, oi the piece of lend over which tho road in question is mado prior to tho contract -between tho plaintiff and tho former company, or that, if there was such c, contract, it was subject to a right of way in respect of the premises then intended to bo sold to tho plaintiff. Secondly, it must appear that the. contract between the Otago and Southland investment Company and tho plaintiff for tho salo of tho homestead block to the plaintiff carried with it a right of way over tho road in question in respect of tho land sold to her. Whether tho land over which tho load is mado was included in the salo to Mr Ewing depends upon tho true interpretation of Messrs Wilson's letter to Mr Morris of the 1-ltli October, 1901, which was the basis of tho contract between the Investment Company and Ewing. Messrs Wilson wero acting as agents for Mr Ewing, the intending purchaser, whose name was undisclosed at tho tirno the letter was written. There had been previous negotiations between the Investment Company and Messrs Wilson lor tho sale of the property, which had fallen through. Then there was a, renewal o.f tho negotiations, and Messrs Wilson's letter state how things then stood. They say; 'Beforo finally submitting to our probablo buyor wo beg to record whnt we understand the position to be—Viz.: Wo are authorised to offer for sale to our client on beliailf of your company tho balance ol the Horseshoe Bush Estate with tho exception of a reserve .for Mr Driver of somo 200 or 800 ecus, as arranged and shown in red on last plan of the property handed to us. From the plan now before us the portions of the estate to be offered comprise the following fauns and sections.' Then follows a list of farms, tho sections comprised in them and the acreage, Tho item in the. list which mainly affects the'present question is that which relates to part of farm 9 and the sections and parts of sections included in it, which are estimated to include 100 acres. The letter goes cn'to say' 'It is understood that tho areas of 'he various sections aa shown aie only roughly estimated, and correct acreage will bo obtained later oi* The price at which your company otters the estate for sale, with all buildings, appurtenances, fences, etc., is £11 per acre.' The letter states that Messrs Wilson were to receive a commission in the event of sale of 1£ per cent, on the purchase monoy. The question is one of parcel or no parcel, and in order to determine it tho position of things as they . existed and the surrounding ■ circumstances must be takon into consideration. Now, tho Btrip. of- land in question is not mentioned specifically in the. list of sectious contained 11 the letter of the 14th. October. It is a part • ol none of the sections there mentioned. Part .of it is apparently included on-the plan within the boundaries' of farm 9, but other part of ii. separate-* .farms 5 and 8 on the plan, and ; cleariy forms part of neither of these farms. The part, however, apparently within the boundaries of farm 9 is shown on tho plan in the Mine'way as the part between farms .5 and 8, "and'in the'same-way as the continuation of •the same road towards tho north-east, which is .admittedly a public road. The strip of 'and . therefore was not specified in tho list of sections sold, and although the plan does not 'represent it' to be a public road, it is qu-ite ■consistent with the plan that it might be a publio road, and it certainty cannot be said, from looking at tho plan,.that it wa-s intended tbo included in the sale as part of farm 9 or otherwise. Looking at the plan only, it is quite, •as consistent with it that the road .between sections 40 and 34, which is admittedly a public j-oad, should have been intended to be included in tho sale HB that the road in question was intended to be included. When we come to look at the facts wo find that the strip of land had never been included an any farm or used in any way except as a road apparently ' open to the public, and that it had always been the only means of access to. the block whioh' by the plan was to be reserved for Mr Driver. It is-true that there wore other strips of'land which were clcraed roads, and which aro marked on the plan in a similar manner to public roads;-but all these other roads were closed, in fact, and were not only included on the plan .in the area of .farms, but were enolosod and worked as part of farms. .These • latter roads, though not specified in the letter by section -numbers, wero not only on the plan, but, in fact, part of the farnu mentioned in the list, and would therefore be included in the proposed Eale as part of the farms offered. The letter offers for ale the. balance of the Horseshoe Bush Estate, with the exception of a reserve for Mr Driver of somo 200 or 300 acres,' as shown in red on tho plan. Then it specifies tho portions of the estate to be offered, describing them by farms and sections. The strip-of- land in. question is not, in fact, included in any of these farms oi sections, That being sq, the fact that it- had always been used as if it were a public road, and- that it nad always formed the only practicable means of acoess to a tenement, which- was expressly excluded fiom the sale in order to bj sold to somebody else, would satisfy me, - even although the parties had known that the fee simple of the strip of land was included in the mortgage to the Investment Company, that it was not intended to be included, in the sale as part of the Horseshoo Bush Estate. But when the letter of the 14th of October was written neither Messrs Wilson, nor Mr Ewung, nor the Investment Company ware aware that the strip of tad was included in the mortgage. The common belnof .was that it was a publio load. Later oil, but biore the .bargain was concluded, Mr Ewing found out that it was not a publio road, but he kept his knowledge to himself, not even imparting it-to Messrs Wilson. It is therefore absMufely clear that tho letter of tho 14th October, the basis of tho'contract, not only did not include specifically tho strip of land in-question, but was intended by tho writer not to include it, and was understood by the recipient -as .not including it. I think, therefore, that the strip of land in question was not included in- tho salo to Mr Ewing, whiich took place prior to the sole to the plaintiff. If, however, the strip of land did pass by the contract it would, in my opinion, be subject to the right of way that was. intended to be acquired by Driver. Mr Ewing's contract for (he purchase of the estate was for the purchase of it. less the part marked red on the plan, which he had notice was reserved from sale in order that the company might sell and Driver might puiohase.it. All parties knew that the use of this strip of land as ft road was a quasi easement necessary to. the reasonable enjoyment of the property,so intended to he sold to Driver. The oompany's intention

wa9 to sell the homestead block as shown in the plan, and Mr Driver's intention was to buy it. Such a sale would carry the quasi moment though nothing .was said about it. It is absurd to suppose that Mr Driver was going to buy the homestead block, and that fie was not going to got something that had always been used with it, and was necessaryfor its reasonable. enjoyment. Tho intention of the company to sell and of Mr Driver to buy the homestead block would imply an intention, to inolude in such sale what would, in the absence of any special stipulation, pass on,auch a sale.. It was subject to tbia intended , sale that Mi Ewing bought. The case must ■ depend upon the language of the contract and upon the surrouding circumstances. If :kc homestead block had.been exempted from the salo simply to be retained by the vendor, then the doctrine of Wheeldon v. Burtows (12, C.D., 31) might apply, and it might be contended that, in the absence'of an express reservation of a right of way to tho 'vendor, no right of way •would be retained by him. Even that, however, seems dou&tful, as at the time of the contract with Ewing the homestead block was occupied by. % tenant who was entitled to tho right of way. The case of Thomas v. Owen (20, G.8.D., 225) indicates that in suoh ft case tho right of way would be impliedly reserved to tho vendor. The case of 'Wlieeldon v. Burrows was decidcd on the principle (hat d man cannot derogate. from his ovm giant. Here, however, the question is . what exactly by the contract was intended to be granted to Mr Ewing. Prom the beginning of the negotiations for that contract all parties web -aware that the bomfistead"block was reserved from sale in order to carry out a .ponding arrangement between the Investment Company and Mr Driver for tho sale of it to him. That sale, if carried out, would'carry, with it the night of way. It was therefore in the contemplation of the parties to Mr.Ewingte contract that if Mr Driver carried out tho purchase the strip of land in question should be subject to his right of way. I am, however, satisfied that the strip of land in question did not pass to Mr Ewing by the contract of 1901. Did, then, the contract of sale by the Investment Company to the plaintifi of the homestead block carry ivith ft any and what light of. way over this strip of land? Tho strip was io all outward appearanco a public road, and was the only practicable means of access to tho tenement contracted to bo sold. It had always been used as the- only rood'to'this tenement. At the time of the contrast Mr Driver was in possession of this' tenement as tenant. The road, therefore, was in the nature of a continuous and apparent quasi easement, and would pa3s by implication on a couvcyanco of the tenement. That 'is shown by sevoral cases, the latest of which is Brown v. Alabaster (27 C.D., 490). A contract therefore for tho salo of the tenement simpliciter would includo in it- by implication a contract to grant tho quasi easement though it was not mentioned. There is such a contract hero, a contraot in writing for tho sale of the tenement contained in letters that passed between itr Morris and Mr Driver. It is said, however, that there was in tho present case no implied contract to grant tho easement, because both the company and Mr Driver entered into tho contract in the belief that this strip ,of land was a public road. That is to say that thero was a mutual mistake as to tho subject matter of tho sale. The question then may be put generally. A man contracts to sell a property bounded on one sido by, what is apparently ft public road, and which both buyer and seller believo to be a publio road, and which affords and always has afforded the only practicable access to tho property. Then it is discovered that the supposed public road is not a public road, but that the land ovor Miich tho road was is vested in tho seller, and that there is ho public right over it. In such circumstances can tho seller refuse to convoy the properly and to givo to the purchaser a right of way over tho road? Ido not think he can. Tho contract is for tho salo of the property. A salo of tho property would carry with it tho right of way if it was in the vendor's pow;or to grant tho right of way. Why should the vendor refuse to grant tho right of way becauso at the time the oontract was made neither party to tho contract thought such a grant necessary? The right of way is an accessory to the pro'perty. Tho accessory follows the principal. Thero was no mistako about the principal matter of tho contract.' Tho misconception was that the parties conceived that there wa3 nothing, the vendor could give which was an accessory to the property when in fact there was something. In order to refuse specific performance on the ground of mistake .the court must be satisfied that the agreement would not have been entered into if its true effect had been understood, i (Watson v. Marston, 4 D M.G., at page 240, cited ill ' Poilock on totracts,' seventh edition, at page 510.) That cannot be suggested here. The vendor by giving tho right oi way is in no worso position than if the road had boen, as was supposed, a public road. Ho puts himself under no obligation to keep it iu repair. It was suggested that Mr Driver had led the. company into the belief that this was a public road. It was true that in 1893, long beforo any oi these negotiations, Mr Driver had told Mr Moodio, the agent of the company, that he believed this was a publio road, but that was tho general belief in the district. Moreover, the deeds, which showed the road was a closed road, were throughout in the possession oi the. compauy's solicitors. Ido not think Mr Driver's siatemont to Mr Moodie in 1893 aft'ecls tho question. Certainly tK fact that 6'>me time a/ier tho contract a plan was sent to Mr Driver which indicated (ho road was closed, and which he and Mrs Driver inadvertently signed without . noticing the indication, cannot affect any right acquired under tho previous contract. I thidk therefore that tho plaintiff is entitled to judgment against both defendants. and to a decree for specific performance of the contract for sale with the Investment Company with a right of way over the strip of land iu question. As to tho extent of the right, both the Investment Company and Mr Driver supposed that the road was a public road. Both parties therefore contemplated that tho road would be used by the. buyer as a public road is used; that is, not for a limited purpose, but. for all purposes. There will therefore be a decree accordingly."

EWINO PHOSPHATE COMPANY V. DHtVEH. An act-ion for £50 damages and an injunction,

Mr Sim, and with him Mr Fraser, appeared for plaintiffs; Mr Hosking-appeared for tho defendant, Harry M'Lean Driver, of Horseshoe Bush, farmer.

In this case, whioh was heard on June 34, 23, and September 18, his Honor now gave judgment as follows:—"The facts in this case aro very simple. Tho plaintiff company-was equitablo owner in fee of a strip of land on which thcro was a road. Over this road the defendant had a right of way appurtenant- to his tenement. The plaintiff company laid down a tramway across the road for the purpose; of carrying phosphates in trucks from one part of their property to another. Thi3 tramway in no way obstructed the road or ' interfered with tho exercise of his right by the defendant. The defendant, however, pulled up the tramway, and when the plaintiff company relaid it ho pulled it up again. Tho plaintiff company now flues the defendant to recover the damage it has suffered by his acts, and asks for an injunction to restrain him from doing the samo thing again, l'ho ground oil which tho defendant now seeks to justify lu action is that the tramway was placed by ihe company across the road in assertion of a right on its part to exclude the defendant from the use of the way and in denial .of his right to uso it. But the company had a light to place the tramway across tho road and to use it for passing truckß over. .Tho.tramway was not an obstruction, and no action would have lain at tho suit of the defendant to compel the company to"rcmov.c it or to prevent the company running, trucks across it. If tho tramway is not an obstruction, and if the company had a right to put it there, the intention with which it was put there is immaterial. Had there been any evidence that the company, had stood trucks on the tramway in such a way that the road wouid havo been obstructed, and that they had done this in assertion of tlieir right to stop the right of way and to prevent the defendant exercising his right, then the case wpuld havo been within tho principle of Bell v. The Midland Railway Company (10 C.8.N.5., 287). In that case, although no one was actually obstructed, there was an obstruction which, if acquiesced in long enough, -might ripen into «i right to close the way. Here there is no obstruction, and if tho tramway wero loft' untouched for a century it could not lessen the existing rights of the defendant or increaso those of tho plaintiff. It was suggosted that it might Re nccessary for tho company in carrying on its operations to let trucks stand on the crossing so as to obstruct the road. Ido not, .however, see this necessity. It is time enough to complain when there is au obstruction. It :s true there may bo an actionable obstruction though no one has been in fact obstructed, but to cause an obstruction there must be something dono which would have the effect of hindering tho passage if anyone wanted to pass. No such obstruction has been proved here. I think, therefore, that the plaintiff is entitled to judgment, I assess tho damages at £25." Tho question of costs iu this and the previous case -was allowed to stand over for discussion in Chambers, .

BLTOf HMBOVR BOABD V. BOROUGH OF CAMPBELLTOVN. An action for an injunction to reslrain the defendants from .proceeding to acquire certain land and waterworks at the Bluff compuisorily ■under the Public Works Aot. ' Mr T. 11. Macdoiiaid and Mr Woodhouse appeared lor the plaintiffs, the Bluff Harbour | Board; Mr 'Sim and Mr W. A. Stout appeared for the defendants, the Borough, oi CampbaUtown. Tie statement of claim filed bj' the plaintiffs sot out that in October of 1879 the defendant council wrote to tho board dirceliing its attention. to tho necessity for water being laid on to the Bluff wharf, adjoining tie borough, and offering part of a municipal reserve as a site for a- reservoir. Tiio plaintiff boai'd accepted ilio offoi, but the arrangement was not carried ; out. In 1883 the board entered into negotia- | tions with Captain Boyd for the sale of part of section 8. bloolc I, within tho borough, containing 3 acres 3 roods and 29 poles, and oi the right to lay pipes through the- other part of tho same section, for £590. Before these negotiations were closed the borough gave tho board permission to run one main of water through corporation streets or reserves free of I cost,. Belying <m tho grant ot license crotoii^

in a loiter of October 12, 1883, tfie plaintiffs closed the negotiation for Captain Boyd's, land, and constructed a reservoir and laid a main pipe from it through certain streets and through a railway reserve (o the wharf. The board furthor laid branch pipes and services through certain streets. In IB3T a further purchase of kind was mads, from Captain Boyd for £100, and expended- on the waterworks the sum of £1009 12s 7d. The plaintiffs further stated that the waterworks were constructed for supplying water to the shipping; that they had been in use for 17 years with the acquics. cencc of the defendant council; that in January, 1902, the defendants wrote stating that the council was entitled to acquire the waterworks under the Municipal Corporations Act antMne Public Works Acts, and offered to enter info negotiations for the purpose of the council obtaining the ownership and contiol of the waterworks, On October 13 and 16 of 190*2 t-nc oonncil published a notice of their intention to acquire the waterworks, _ wherefore the plaintiffs claimed an injunction to restrain tho defendants proceeding further with their intention of unlawfully taking tho lands and waterworks of the plaintiffs. The statement of defence denied that the .purohaso of land from. Captaiu Boyd by the plaintiffs was made in reliance of the council's letter of October, 1883, and further denied that the waterworks had been carried on and maintained by tho plaintiffs with the acquiescence and concurrence of tho defendants. Tho general facts were practically admitted, save where a matter of law was involved. For a further defencc the defendants denied that the statement of claim disclosed any cause of action. Mr JEacdonald, in opeeing the case for the plaintiffs, elaborated the fact 3 as indicated in the statsmont of claim. Tho plaintiffs, lie said, sought to restrain the corporation from taking proceedings in terms of the notice given by ilioai, and fts]»*G(l for h declaration of the court that they had no right to take tho works. Tho plaintiffs had spent about iMOOO on the waterworks, and up to the present time had carried them on and maintained them with the active concurrence of the corporation. That was disclosed in tho letters passing between the two bodies, and more especially from tho council to the board.

His Honor: Has the water ever been supplied. by the board for private use? Mr Macdonald: As a matter of fact, I believe, on the suggestion of the council, private individuals consuming a large quantity of water havo obtained it from the Harbour Board; but that is not part of our c.uo. Wo want to restrain the council from interfering with the pipe to the wharf. Wo do not care r.bout the minor restriction from the main pipe to the town.

ILis Honor: "Why cannot the parlies como 10 some arrangement? If tho Harbour Board get back the' moJiey tbey lirvc spent mid have an assured supply for the wharf, that ehould bo sufficient.

Mr Macdonald said that the Harbour Board was a large body, representing tho whole County of Southland and parts of tho Wallace and Lake Counties. If the control of the watorworks was in the hands of the corporation, in, times of scarcity cf wafer the claims of tho ratepayers would probably be regarded as paramount. The board v,'as anxious to return control, because at some future time, when the waterworks began to pay, iho board might be in a position to rcduce the harbour charges, and enable the settlers, who were its constitutents, to export their produce at- moro reasonublo Tates. Tho crux of the whole question was the shipping supply. It was a significant fact, however, that the desire to acquire the waterworks was synchronous with the knowledge of the fact that the waterworks wero beginning to pay. It was also a matter of notoriety that without the shipping supply tie waterworks would not pay, and if tho council constructed waterworks to supply the ratepayers alone they would do so at a loss, owing to the sparseness of tho population. There was, however, no doubt that the present supply wis inadequate for both the shipping and the residents. , . Mr Sim: My friend is stating a great deal that is not in evidence. His Honor: W'hat I have really to decide is a dry question of law and the interpretation oi statutes. llr Macdonald then procseded to contend, first, that tho corporation had no power to acquire compulsorily und-or the Public Works Act tlie knd and works, which admittedly were works carried on by the board "or the supply of shipping. Any powers in the matter the corporation possessed were conferred by section 203 of " The Municipal Corporations Act, 1900," of which the third subsection gave the council power—" To take, purchase, or otherwise acquire in the manner provided in part 2 of 'Tho Public Work.? Act, 1834/ and hold any land, whether within or without tho borough, which may bo nccessary or convenient for the purposes of or in connection with any public work which tho council is empowered to undertake, construct, or provide, or for carrying out any of the purposes of this act." Section 300 empowers a council to purchase waterworks out of loan money, Tho council might construct waterworks, and for that purpose might take land under the Publio Works Act. but the council, instead of constructing waterworks, might purchase existing waterworks. There was no power conferred by either act that would enable the council to take eoinpulsonily existing waterworks, and even if there was, learned counsel submitted there was no machinery for doing so. The true construction to be placed on section 300 was that the council might purchase existing waterworks by private contract, They could not compel tho owners to sell them either.' The next point he subm'tted was that no council had any power to take land below high water mark.- In the notico the corporation had given they had intimated their intention of taking tho pipes aExed to the wharf, but his Honor would see that the wharf stood on land below high water mark. Further, there was no statutory power to allow tho board to Bell this land, and, in support of 'his contention that where there was no power to sell there was no power to take, learned counsel cited Eigina v. the South Wales Coppany (14, Q.8.D., p, 902). On the authority of that case, he submit! Ed that unless the board had in itself the power to sell, the corporation was not entitled to take it. By the operation of the Harbours Act and " The Bluff Harbour Foreshore Act, 1870," all the land below high water mark could not bs alienated at all. Tho third point on which he intended to rely was that the notice given by tho corporation was bad, inasmuch as it did not comply with the provisions of the Public Works Act. His Honor had held in Kitchener v. the Waihemo County Council (3, N.Z.L.8., p. 116). that in tho notico the terms of the act must be strictly complied with. He therefore submitted that tho notice was bad because it did not give a general description of the works proposed to be executed and the laud required to be taken. From the letter sent by the corporation to the board there could be no doubt that there was the intention to take waterworks as existing waterworks, and that there was no intention ou tho part of the corporation to construct waterworks. The defendants had pleaded, among other things, that it was ultra vires of the board to 'construct the waterworks at all. He submitted this was immaterial, if the council had no power to take this lend as existing waterworks, the fact that tha board had acted ultra vires could not give them that power.

Mr Woodhouse submitted that throughout the whole of the Public Works Act of 1831 the word "land" wherever it was used related to land purely and simply, and tlnft any reference to waterworks or gasworks was made in specific language. Learned counsel further submitted that it must be remembered that the Harbour Board was a pub'ic body, created /or the purpose of public utility. Therefore itß powers must be construed very liberally, for the powers it held were conferred on it for the public benefit. The letter of' 12th October, 1883, from the corporation to the board amounted to a license to lay pipes in the street. Tho luncheon adjournment was taken at this stage. Mr Sim said it wa3 admitted that the council could take only land under the Public Works Act, but it was submitted that, subject to the limitations imposed by sections 12 ami 11 of " The Public Works Act, 189-1," the council way entitled to take for the purpose of authorised public work 3 any land whatsoever, av.d whatever the purpose for which it might bo used. Mr Macdoiwld had ssid that section 11 was the section which conferred iu general terms' the powor to take, but scriion 12 provided that if power wa3 given to take land such power, except where otherwise provided, included power to set apart Crown land for a set purpose. In regard to the argument that if a local authority proposed to acquire a piece of land it could not do so if that piece of land was in use by some oilier local authority for the purposes of a.public work, learned counsel submitted that section 12 afforded a complete answer, because it showed boyoud a doubt that the Legislature distinctly contemplated that one public body might acquire land vested in another public body, The fact that this land happened to bo used by the Harbour Bonrd for the purpose of waterworks did not affect the question at all; but, supposing it could make a difference, he submitted that the fact that the Harbour Board was carrying on Its waterworks schernc without authority was a complete answer to the argument. The. only power the Harbour Board possessed was tlis strictly limited power of subsection 5 of section 153 of the Public Works Act. The Privy Council had laid it down in the Shaw-Savili case (15, Appeal Cases, J29) that whatever the Harbour Board was not authorised,to do it was prohibited from Soing. Learned counsel admitted that there was nothing to enable them to acquire waterworks compulsoril; 1 , but if they could acquire land with the ioundntion of a waterworks scheme ou it so much the better, Mr Macdonald also argued that they could not acquire land below high water mark, but section 147 did not deal with compukoiy taking at all; it merely preveirwd voluntary alienation. His friend also objected to tho form of tho notice, that it did not contain a general description of the works proposed to bo executed, but he submitted that it sufficiently indicated the nature of the proposd works, and there was no suggeston that it„had misled anyone. It would be absurd to suggest that an injunction should go on this ground, because, in any case> the corporation was bound to hear and consider well-founded objections. If tho court was satisfied that the council was not entitled to talco some of tho properties pro-

posed to be acquired that was no reason for issuing an injunction. Unless the plaintiffs could establish that the council had no fight to take any part .of what was pi'opo3od.lo 1)0 taken thsy were not entitled to an injunction. Mr Stout also addressed the court, and, Mr ?-(aci!ona)d having replied, the court reserved judgment.