HUTT PARK RACECOURSE.

Otago Witness, Issue 2471, 24 July 1901, Page 54

HUTT PARK RACECOURSE.

RIGHTS OF THE PUBLIC. In view of the interests involved, it may be well to give an abstract of the judgment of Mr Justice Edwards, delivered in the Court of Appeal in the special case staled on the actions Macarthy and another v. Barnett and Solicitor-general v. Macarthy and others. It will be remembered that the judgment of the court was against the stewards of the Wellington Racing Club, who brought an action for trespass against a bookmaker, and in favour of the Solicitorgeneral, who attacked the lease held by the stewards. Mr Justice Edwards said that in this case counsel for the plaintiffs in the first action ond for the defendants in the second action (to whom, for the sake of convenience, he afterwards referred as the plaintiffs) sought to distinguish the case from that of Patterson v. the Canterbury Jockey Club (3 Gazette Law Reports, 313) upon various grounds. The first of these grounds was that in Patterson's case the grant of the land from the Crown was expressed to be upon trust for a public racecourse for the province of Canterbury, whereas the grant from the Crown to the Superintendent of the Province of Wellington, now under consideration, was expressed to be "in trust a* a racecourse, and for purposes connected therewith." It appeared to his Honor, however, to be beyond question that the grant vested the lands in the present case in the Superintendent upon trust as a public racecourse. The second ground was that in the preamble to the "Christchurch Racecourse Reserve Act, 1878," the land in Patterson's case was referred to as being held in trubfc for a public racecourse. The act of the Wellington Provincial Council ip its preamble recited that the land now in question was granted to the Superintendent "upon trust for a public VJark and racecourse and for other purposes connected therewith.' It was said that this was a mis recital. So fai as it recited that the land was granted as a public park it was not correct ; so far as it recited that it was granted as a public racecourse it was strictly accurate. It was difficult to sea from any point of -\iew how this could affect in the plaintiffs' favour tin decision of the prc*«kt case, lug mv&

might be sa,id ->f the third giound -namely, that the Chrlstchuicli act seated the land, wheieas the Wellington Pioiinual Act did not. The fouith ground wa-s that the power of leading cciilain n d in the Cln'ibtchurch act differed from that contained in the Wellington Provincial Act. If the plaintiffs' contention was correct, it followed that the trustees could for all time deprive the public of tne whole use aud adiantage of their public reserve. If the trustees could demibe the land absolutely from time to time for any period not exceeding 21 years, and could, notw ithstanding the absolute demise, expend the rents in improving the demised lands, then it followed that they could for all time give the whole benefit and advantage of the reserve, and of the rents derived therefrom, to prhate individuals, and to the- entire exclusion of the public. It would, continued his Honor, be a very extiacrdinary stale of thing' 3if a public reserve could be so dealt with at the caprice of trustees who were trustees for the public. It appeared to him, however, that their claim aud the argument by which it was supported were without substance. Apart from the principle of law that those who took from a trustee with notice of the tiust were themselves trustee= for the same purpose as the person under whom they took, it appeared to his Honor that the tiust here' in question A-as sufficiently declared. The power to lease given by section 9 of Jie Piovincial Act was, therefore, merely a powei to lease in such a manner as should not be inconsistent with th^ purpose- of 'the triut — the use of the" land as a public racecourse, in the meaning which Itu! been given to the words "public racecourse' 1 "by Patterson's case. Counsel for the plaintiffs relied mainly, as his Honor undei^tood, upon the provisions of the "Public Reserves Act Amendment Act, 1862," which were not under consideration in Patteison's case. The answer was that if the Superintendent and Provincial Council had the power to authorise an absolute lease of the Hutt Racecourse, excluding the public, they did not choose to exercise that power. The power to lease was expressly made "subject to the purposes and trusts for which tL*. land shall' be conveyed to them." In the view that lie took of the matte* it was unnecessary to decide whether the "Public Reserves Act, 1881, Amendment Act, 1885" applied to this reserve. In his opinion, howe\er, it was clear that it did apply. If it applied, then it seemed clear that the trustees could not leapa the reserve upon terms which authorised the exclusion of the public upon days when racing was carried on. The plaintiffs, in support of their own suit, relied upon their lease, and. upon the judgment of Prendergast, C.J., in Champion v. Walden. The result of that case was, however, determined upon thu ground that the public had no right of access to the couree. That part of the judgment had been in effect) overruled by the judgment of this court in Patterson's case. That case decided that if the racecourse was a public racecourse, then every member of the public had a right of access thereto for racing purposes on the days when racing was being carried on, subject to any reasonable condition which might be imposed thereon under the authority of the act of 1885. _ The fame case decided that if such right existed, then it might be lawfully exercised as against the trustees and any person in possession under them. The position of the plaintiffs under the lease, which was not authorised by the law. gave them no greater rights than the Canterbury Jockey Club had by virtue of their possession in Patterson's case. In his Honor's opinion the defendant was not a trespasser on the days in question, and the lease from the trustees to the stewards of the Wellington Racing Club should be declared void and ordered to be set aside and cancelled.