MAGISTRATE’S COURT.

Otago Daily Times, Issue 20281, 14 December 1927, Page 14

MAGISTRATE’S COURT.

Tuesday, December 13, (Before Mr J. R. Barthofcracw, S.M.). UNDEFENDED CASES. Judgment was given for the plaintiffs by default in the following cases:—Reddells, Ltd., v. Rao Miller, cl Mm £6 12s 6d, for goods supplied, with costs (£ll6s 6d) ; Rcddells Ltd. v. John R. Trainor (Miller’s Flat), claim £4 19s, for goods supplied, with cost (£2 8s 6d) ; Laidlaw and Gray v. John R. 0. Robertson (Gore), claim £lB 3s 7d, amount clue ou a promissory note, with costs (£2 14s) ; Butterfields, Ltd., v. Allan Hall (Ettrick), claim £7 6s on account stated and agreed upon, with costs (£1 18- 6d) ; Commissioner of Taxes v. the Somervillle McAdam Co. (Te Kuiti), claim £0 Os 3d, for land tax, with costs (15s) ; C. W. Small v. A. Fraser, claim £3 18s 8d on account stated and agreed upon, with costs (£1 3s 6d) ; J. A. Paterson and Co. v. B. Mathicson (Waipukurau), claim £lB 12s lid, for goods supplied, with costs (£2 14s) ; James Wren and Co. v. L. G. Bowden (Roxburgh), claim £ls 16s, for goods supplied, with costs (£2 14s) ; Paterson and Barr v. J. W. Frew, claim 19s, for costs; Shene’s, Ltd,, v. Cedric Crago Clark (Warrington), claim £2 11s, for goods supplied, with costs (£1 7s 6d) ; Laidlaw and Gray v. M. J. Hickey (Napier), claim £ll 16s, for goods suplied, with costs (£2 14s) ; F. and F. Martin v. D. MTLonghlin, claim £3 13s for goods supplied, with costs (£1 4s 6d) ; A. J. Allen, Ltd., v. Bert Brown, claim £2 10s 9d for goods supplied, with costs (£1 3s 6d) ; P. Fraser and Sons v. J. Mead (Invercargill), claim £lO 15s 4d for goods supplied, with costs (£2 4s) ; Farra Bros. v. F. Cole (Balclutha), claim 5s for costs; Lanes Ltd. v. Francis Bernard Francis, claim £lO3 Is lOd on a promissory note, with costs (£6 Is 6d). JUDGMENT SUMMONS CASES. P. J. Pinny, Ltd. (Wellington), assignes of the Dominion Mercantile Agency Co., proceeded against J. Williams for the recovery of £25 14s on a judgment summons. There was no appearance of the defendant, and an order was made for the payment of the amount due forthwith, with costs (£1 ss), in default three weeks’ imprisonment. Wilson Elliott (Balclutha) proceeded against A. J. T. Wilkinson (Green Island) for the recovery of £9 15s 6d on a judgment summons. The defendant did not appear, and an order was made for the payment of the amount due forthwith, with costs (12s), in default 10 days’ imprisonment. John A. Barron (Balclutha) sought to recover £l2 6s from John Harvey Whyte under a judgment summons, and Bell and Ridgwell (Balclutha) proceeded against the same defendant for the recovery of £5 6s 3d under a judgment summons.— Mi C. J. L. White (instructed by Messrs Stewart and Kelly, Balclutha) appeared for the plaintiffs in both -uses. —The defendant gave evidence that he was a casual labourer, aud was at present earning 14s per day, from which certain payments had to be deducted. His Worship refused to make an order. CLAIM AGAINST QUARRY OWNER. The Otago Harbour Board claimed from Richard Abraham Palmer, Ravcnsbounre, trading ns Palmer and Sou, quarry owners, the sum of £9O for damages in that the defendant, his servants, or agents on or about January 1, 1926, broke and entered certain land of the plaintiff lying between the defendant’s quarry at Logan’s Point and the Bluff-Lyttelton railway line, and upon which a railway siding had been constructed, and that since that date the defendant, his servants, and agents had trespassed on the said D n d. Alternatively the plaintiff claimed £9O from the defendant for the use and occupation of the laud. Air H. E. Barrowclough appeared for the plaintiff, and Mr W. G. Hay for the defendant. —Mr Barrowclough stated that the claim arose out of the deviation of the railway line between Dunedin and Port Chalmers. One of the results of the deviation was that the railway was shifted a considerable distance from the quarry. The deviation was completed about the end of 1925. About that time tho defendant called on the secretary of the Harbour Board and asked what the rental of the siding woul.d be. Dp till then the board had not communicated with him in regard to the matter. An agreement between the Harbour Board and the Railways Department in 1912 gave the defendant certain rights.—Mr Hay said the question was one of title.—Mr Barrowclough stated that prior to t|ie deviation a great deal of the land over which the siding now ran was under water, and had been reclaimed by the Harbour Board. When the Harbour Board and the Railways Department agreed upon the deviation both had something to gain, and each body was to do certain things free of cost to the other. The defence claimed tha't flic effect of the agreement between the Harbour Board and the Railways Department was that the board undertook to provide a site for a siding for the department for nothing. The defendant was paying a considerable sum to the Railways Department for siding ’ights, and contended that he was not liabel to pay any more. The land was vested in the Harbour Board, which claimed that tho agreement did not impose any obligation on it to grant a lease, right-of-way, or license, either to the Railways Department or to the defendant, and that no such grant or license had been given. There was no obligation on the part of the Harbour Board to give the Railways Department the freehold. The speaker went on to submit that the defendant had no siding rights, and that the Railways Department was similarly placed. If the Railways Department had any rights they were, he contended, not assignable to the defendant.—William J. Bardsley, secretary of the Otago Harbour Board, stated that the siding was opened about the beginning of May, 1925. The defendant called on witness on November 2, 1925, with reference to the question of rental. At the end of the conversation witness said he would recommend to the board that the rental bo £SO per annum. That recommendation was adopted by the board at its meeting in December, and witness wrote to tho defendant acquainting him of the fact on December 23. On January 4, 1926, witness received a letter from the defendant stating that the proposed rental was too stiff. The board eventually received a letter from Mr Hay, disclaiming liability. Siding leases were held over other lands owned by the board. In witness’s opinion £SO per annum was a reasonable rental for the defendant’s siding. James M’Grcgor Wilkie, engineer to the Harbour Hoard, stated that in 1913 portion of the land now occupied by the defendant’s siding was partially reclaimed, and part of it was under water at high tide. Th e reclamation was completed as a special job, and was therefore more expensive that would otherwise have been the case. A bridge had to be built specially at a cost of £266, and, in addition, the reclamation cost the board £521. Witness said he knew that the Exhibition Companv had used tho siding, but he was not aware that the Exhibition Demolition Company and the Railways Department had used it. Francis Robert Grindlcy, employed in the Municipal Department of the City Council, gave evidence with regard to the rentals charged by the council for sidings across streets.—Mr Hay said the case came before flic court, in a rather peculiar position. It was really a question of title, and the point at issue was ihe position between the Minister of Railways and the Harbour Board. The speaker contended {hat the Minister had control over the defendant’s siding, and had the right to charge for it. That was clearly shown in the agreement between the Railways Department and the defendant. The Minister of Railways was in presession of the siding, and was disposing tit if as he liD-d. ’lhe i iioceed ings should have lice,, lal.en heforc the Supi'cio" ( 'on; r. Too ; ; it the .Minis- j ter of Railway,- were of vital importance, | and yet the Minister was not. i (•presented | before tho court.— The defendant ca'-o evi- j dunce that Ilia license for thy new siding | wa.s issued in October, 1925. The siding,

which was used from about May 7, 1925, was put down by the Railways Department. Portion of the old siding was still intact. Witness had to pay tn e cost of laying the rails in the ne*v sidings, but received refunds from the Railways Department for old material and the Exhibition Company for the use of the siding. The siding was used until quite recently by the Exhibition Demolition Company, and was also used by the department itself. Witness was not consulted in connection with these matters. Witness’s conversation with Mr Bardsley was the outcome of representations by the Otago A. and P. Society with reference to getting access to Logan Park through the siding. The interview hinged on the question of access by the A, and P. Society. Witness was surprised when he was informed that the Harbour Board was going to make a charge for the siding. —Mr Hay addressed the court, quoting authorities in support of his contention that this was a case in which the question of title was involved, and for that reason it should have come before the Supreme Court, as a magistrate had no S fiction. In any case the Minister of •ays was in possession of the land, and all that the defendant had was the right of access.—Mr Barrowclough admitted that the question of title was in dispute, but contended that it arose only incidentally. He also contended that it was now too late to object to the case coming before that bourt. The Harbour Board had never contracted to give siding rights. If it had been intended that such rights should be given why was it not stated straight out?—His Worship said he would reserve his decision.