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Tuesday, Decembeb 9. (Before his Honor Mr Justice "Williams.) HAZLETT AND GLENDINING V. ALLEN AND OTHERS. Suit for specific performance. In this case the plaiutiffa were James Hazlett and Robert Glendining; and the defendants James Allen and Jamea Allen and Elizabeth Allen (as executor and executors of the will of the late Charles Allen), the Allandale Coal Company, and the New Zealand Railway Commissioners. Mr W. D. Stewart appeared for the plaintiffs ; Mr G. Cook, with him Mr Chapman, for all the defendants excepting the Railway Commie? sioners, for whom Mr B. C. Haggitt appeared. The statement of claim set forth that on or about the 13th March 1885 James Allen and Charles Allen agreed to sell portions of sections 1 of 20, 2 of 20, and 2 of 21, block 111, and section 45, block IX, Moeraki district, to the Shag Point Coal Company, for the purposes of a railway from the Shag Point colliery to the main trunk line. That it was agreed that in consideration of the sum of £215 12$ as the purchase money, and of compensation for damage which James and Charles Allen might be entitled to claim, they would, as soon as a proper survey was made, execute a conveyance for vesting such land in the company. That the company many years ago construpted a railway on the said land, and incurred great expense. That the company by deed assigned unto Francis Dyer Rich all their interest in the said land agreed to be purchased. Tbat in March 1885 F. D. Rich assigned unto the Bank of New Zea- j land tho Shag Point coal mine and the railway. > That on August 20, 1889, the bank assigned nuho' plaintiffs the right and interest of the bank to the land purchased by the company from James Allen and Charles Allen. That notice of the said assignment to plaintiffs was given to defendants (except the company and the commissioners), and defendants had been frequently requested to execute a conveyance to plaintiffs, but had neglected and refused to do so. That in February 1890 the Allandale Coal Company was registered, the prinoipal shareholders in which are James Allen and Allan M'lntosh. That the Allandale Company is believed to have leased or otherwise acquired an interest in possession in part of the said land of James Allen and the executors of Charles Allen adjoin ing the branch line of the plaintiffs, and that

such company or James Allen has recently constructed a loop railway line on or through Darfc of such land to the plaintiffs' branch line. That the Allandale Company and James Allen and Allan M'lntoeh have taken down part of the fences of the said branch line, and have trespassed on plaintiffs' land and brokeu plaintiffs' fences and threaten to use plaintiffs' branch line without their consent. That the Railway Commissioners are connecting the said loop line with the branch line, and threaten to use the loop line with the branch line for the carriage of the Allandale Company's coal and other material. That by means of these wrongful acts plaintiffs will be materially injured in their business of coal proprietors. That this branch line was not constructed, and has not been purchased by or on behalf, of the commissioners, but they supply rolling stook and are paid for the haulage. Plaintiffs therefore claimed that James Allen and Elizabeth Allen be decreed to specifically perform the agreement of sale, and ordered to convey the said land to plaintiffs ; that defendants James Allen and the Allandale Company pay to plain t'ffs £100 damages; that defendants other than the commissioners be restrained by injunction from entering upon the said land or dealing therewith, or with the branch line, and ordered to remove the embankment or rails; that the commissioners be restrained from connecting the loop line with the branch line, and from allowing any of the other defendants from using the branch line ; that all the defendants be restrained from the continuance of the wrongs complained of, and ordered to pay the costs of this action.

• In the statement of defence, James Allen and Elizabeth Allen and the Allandale Company say that the original agreement was made subject and without prejudice to the rights of the Crown in the lands referred to. They have always been ready and willing and have offered to plaintiffs to execute a proper conveyance subject to the rights of the Crown or of the Commissioners, and subject aleo to the approval of - the survey made by the Shag Point Company. That no plan plan of survev has ever been made by the Shag Point Company ; or, if made, it has never been submitted for approval. That no conveyance to the bank has ever been tendered by plaintiffs to defendants for execution. That whatever has been done by defendants in connection with the loop line has been done under the authority of the Railway Commissioners. Defendants also denied that they had at any time committed any wrongful acts in regard to plaintiffs; and they further say that the line of railway was made by the Minister for Works under the Public Works Act 1876, the Railways Construction Act 1878, and the Public Works Aot 1879, and was at all times after the making vested in the Minister, and after him in the commissioners.

Defendants (the Railway Commissioners) denied that James Allen and Charles Allen were on and previously to March 1885 possessed of the land in question, and said that the said land was long before that month vested in Her Majesty the Queen.

Mr W. D. Stewart, ia opening the case, said that the matters had been fully argued on the application for an interim injunction. His Honor had then given judgment on the facts as presented, but since then a number of additional facts had been discovered which would show that the Shag Point Coal Company were the absolute and unqualified owners of the • land in question, and that the objections raised*to the action were unfounded. The questions to be considered were (1) whether the plaintiffs' were entitled to have the interim injunction made perpetual; (2) tha amount of damage plaintiffs' had sustained through the action of defendants'; (3) the plaintiffs' right to a conveyance of the land under the agreement entered into between James Allen and themselves; and (4) the question of costs. He believed the question of the injunction was not contested, and that his Honor's decision was to be taken upon the question as final. The main question to be determined was as to the form of conveyance. His learned friend, Mr Cook, aod he had in vain tried to arrive at an agreement; as to this, and as the next sitting of the court would not be held till January, and the Railway Commissioners were pressing for a decision, the plaintiffs were forced to bring this action. The learned counsel then dealt with the facts and the law involved, and said that the chief question was whether the railway line vested in the commissioners or not, and on this point he would call evidence.

Evidence waa given for the plaintiffs by William Henry Williams (mine manager of the Shag Point mine), L. 0. Beal, jun. (surveyor), and J. J. C. Stevens (conveyancing clerk). Mr Cook stated that he did not propose to address the court until his evidence had been adduced.

B. C. Haggitt, who was called, slated that he had prepared a contract between the Shag Point Company and the Government, by which the company bound themselves to construct the line forthwith, the consideration being nominal,

James Allen (one of the defendants), Thomas 0. Maltby (C.8.), and John A. Cook (solicitor) were also examined. Mr W. D. Stewart submitted that on the evidence before the court there could be no question that the plaintiffs were entitled to all they asked. The application to have the injunction as to the placing of a siding made perpetual was not contested, and on the question of damages Mr Williams' evidence was emphatic, and possession of the line since 1889 was proved. He also submitted that the plaintiffs were entitled to. specific performance of tho agreement entered into by the Aliens for these reasons (1) that the land in dispute was purchased and paid for by the coinpiuy out of Us own moneys; (2) that the Government and tho Aliens have from the outset recognised and treated the company as the owners of the line ; and (3) that the Aliens' were bound to carry out, in favour of the plaintiffs, their agreement. Further, a3 a legal proposition, the learned counsel submitted that general statutes would not be construed as affecting private riehts unless compensation was given by the statute, and that legislation subsequeat to 1878 did not prejudice or affect the rights of the company, and therefore did not affect the rights of the plaintiffs.

Mr George Cook, in addressing the Court, admitted that there was no objpction to the injunction. To be entitled to a conveyance the plaintiffs must show what land they were entitled to according to the agreement. The fact was the plaintiffs wished to ignore the agreement and to rely upon the receipr, but it wa3 impossible that could be done, because the receipt had reference to an agrepment in preparation, which had been shown to be the one referred to in the statement of claim. As the plaintiffs were suing for specific performance they could nob at the same time approbate and reprobate the pgreement. The agreement they were bound by, and as soon as the land subject to that agreement was ascertained, no doubt the Messrs Allen would be bound to convey, subject to the rights of the Railway Commissioners, and to that they bad been agreeable all along. A great deal of difficulty in this case had been occasioned by legislation on the subject, for which Messrs Allen were not responsible ; and, the learned counsel submitted, where difficulties in connection with the construction of statutes occurred, the court, ia

'dealing with the case, never decreed costs against the defendant. As to the claim for damages, the damage committed, if any, was infinitesimal in character. The claim for damages seemed to have been made as a matter of course, and supported in an indefinite ftnd general way simply because it had been made. The learned counsel argued at some length the law points involved.

Mr Chapman followed on the same side Mr Haggitt, on behalf of the Railway Commissioners, also addressed the court, Contending that the Commissioners were not concerned in several of the issues raised, and that the commissioners should not be liable for coats in any event. The learned council submitted that the railway was a public railway and that the Shag Point Company and the plaintiffs were estopped by tbe very steps they took to acquire the right to make this railway, from setting up that it was a private railway, or that they had any private rights. While, however, they asserted this the result of the matter was perfectly immaterial to them, they simply in the performance of a public duty, asserted that the railway was a public railway, and therefore vested in them.

Mr Haggitt had not concluded his argument when the court adjourned. The conrt rose afc 6 p.m.

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CIVIL SITTINGS. Otago Witness, Issue 1921, 11 December 1890

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