COMPENSATION CLAIM.

Otago Daily Times, Issue 19349, 9 December 1924, Page 13

COMPENSATION CLAIM.

' QUESTION OF A RIGHT OF WAT.. His Honor Mr Justice Sim gave Judgment yesterday in the case between Messrs Paterson and Barr (claimants) and tne Otago University (respondent). The court was composed of his Honor and Messrs B. C. Reynolds (for Messrs Paterson and Barr) and C. Russell Smith (for the Otago University) assessors. Mr F. I!. Adams appeared for the claimant, and Mr 11. E. Borrowclough for the respondent. His Honor’s judgment was ns follows: —

“This is a claim for compensation under the Public Works Act, 1908, in respect of a right of way over part of section 15, block XXIII., City of Dunedin, taken for the purpose of a site for the Medical School of the Otago University. The right of way was granted to the claimant by an instrument bearing date the 10th day of May, 1912, and registered under the Band Transfer Act. At that date the claimant was the lessee, for a term of 16 years from the Ist day of November, 1907, of part of sections 5 and 6, block XXIII., City of Dunedin. The grant in May, 1912, was to the claimant, 'its successors and assigns, owners and occupiers for the. time being of part section numbered 6, block XXIII.. City of Dunedin, its tenants, visitors, workmen, servants, and others of full and free right and liberty during ordinary business hours of ingress, egress, and way without horses or other animals, but with or without handcarts, trolleys, or other light vehicles, laden or unladen, and solely for the purpose of taking goods to and from tlie warehouse of the claimant and situate on part of section 6, block XXIII., aforesaid in, through, over, and along thf way therein described. This way ran through section 35 from Great King street to the back of section 6, and was Oft wide at Great King street and Sft 3in wide at the other end. On the sth of October 1923, the claimant rgreed to purchase tha fee simple of the land comprised in tua before-mentioned ‘lease, and )i is now the equitable owner of such fee simple. The question now to be determined is as to the ■rights of the claimant under the grant or the aforesaid right of way. “At the data when such grant was made the claimant was occupying the shop on section 0, and was carrying on therein a retail hardware business. The shop on the front of section 0 was occupied by a ten ant. On the back of section 6 were two old buildings, which are still there. It is agreed by counsel on both sides that neither of these buildings can be described as a warehouse. The position, therefore, is that when the grant was made the claimant had not on section 6 any building that could be described as a warehouse. It was contended on behalf of the respondent that in these circumstances the claimant took nothing by the grant, and consequently is not entitled to any compensation. The grant. It was argued, was Intended to be in respect of an existing warehouse on section 6, and could not be construed as extending to any warehouse which might be erected thereafter on section 6. On behalf of the claimant It was contended that, as there was not any existing warehouse, the grant ought to be construed as being intended to apply to a warehouse to be erected on section 0, and evidence was given ns to the warehouse and shop proposed to be erected by the claimant on the back part of sections 5 and 0.

“The rights of the parties have to be ascertained from the words of the grant. In construing these words the court, is entitled to take into consideration the circumstances existing at the date when the grant was made—Goddard on Easements (Bth edition!, p. 340; 11 Halsbury, p. 250, par 504; Cannon v. Villars, 8 Ch. D. 415, 420; Pottey v. Parsons (1914), 1 Ch. 704, 716, and, on the principle of ut res magis valeat quam pereat, a construction which would deprive the grant of anv effective operation ought to be avoided if possible. There is also the maxim that in the absence of any clear indication of the intention of the parties, a grant must be construed most strongly against the grantor. It is true that Jessel M.R. in Taylor v. Corporation of St. Helens, 6 Ch. D., p. 270. thought that this maxim could not be considered as having any force at the present day. But in Williams v. James, L.R. 2 C.P., 577, 581 Willes J., said that the maxim must be applied in construing the grant of a right of way. On a question of that kind the opinion of Willes J. is probably to be preferred, and, as pointed out in Goddard (Bth -edition), p. 543, the throe cases in the House of Lords referred to by Jessel. M.R., related to the interpretation of wills and not of deeds of grant. “In view of the fact that there was no warehouse on any part of section 6 in May, 1912, the only reasonable conclusion is that when the grant was made the parties must have intended to create a righf of way in connection with a warehouse to be erected in the future. It is only by construing the grant in this way that any effective operation can bo given to it, and that I think, is how it ought to be construed. “There is a further difficulty in connection with the claimant’s case. This arises from the fact that under the grant the dominant tenement is part of section 6, while the proposed warehouse will have to be erected on section 5 as well as on section 5 The law is that the owner of a right of way cannot in general use the way for the service of tenements other than the dominant tenement—ll Halsbury, p. 286, and the case of Harris v. Flower, 74 L.J., Cli. 127, cited by Mr Adams, illustrates the application of this rule. It seems to me, however, that, even if the grant could not be construed in the circumstance® as extending to the whole warehouse, the claimant would have been entitled, at any rate, to use the right of way for the purpose of conveying goods to the part of the warehouse standing on section 6. In connection with this question reference may be made to the case of Williams v. James, L.R., 2 C.P., 577. In that case there was a right of way in connection with a particular -field. The way was used for the purpose of carting from the field some bay which had been grown partly there and partly on land adjoining. This was held not to constitute necessarily an excess of user of the right of way. The matter is not clear, but the uncertainty as to the exact rights of the claimant under the grant does not justfy me in saying that the cliamant is not entitled to any compensation. It is obvious, however, that the doubt in connection with this point and afio in connection with the use of electric motors ought to bo taken into consideration in determining' the amount of compensation to be awarded to the claimant.'*’ THE AWARD. His Honor continued: The award of the court is that the respondent pay to the claimant the sum of £750 as compensation in respect of its claims. As the compensation awarded does not exceed one-half the amount claimed, the claimant is not entitled to recover any costs. The fee of each assessor is fixed at £l2 12s, and each party is to pay the fee of its own assessor. His Honor added that the award wae the unanimous decision of tne court.