A QUESTION OF OWNERSHIP

Taranaki Herald, Volume LXII, Issue 144359, 25 March 1914, Page 6

A QUESTION OF OWNERSHIP

LANDLORD OR TENANT. ROYALTY ON STONE. Holders of leases under the West Coast Settlement Reserves Act of 1881 will be interested in the judgment riven by Mr. A. CrooUc, S.M., in the a ,gistrate’s Court at New Plymouth on Tuesday morning. It will be remembered that a fortnight ago the Public Trustee, as owner of the land, sued Charles Andrews, farmer, of Okato, and lessee of a section under the Act, for £32 13s 6d royalty on stone paid to defendant by the Taranaki County Council. The defendants’ land was bounded by the Stony River, from whence contractors to the council drew their supplies for road-making. Plaintiff claimed that the stone was part of the soil, and the money should have been paid to him. As there were other cases similar to this, the case was taken as a test.

For the defence ft was argued that the stones were not minerals, and the monev was not paid to the defendant in trnst'for the plaintiff. The 3d per yard agreed as royalty, defendant contended, was for surface damages done to the land, and not as tho price of the stones.

The full judgment of the magistrate on the matter was as follows;

The first question for decision is whether the stones, which were removed from the land, are minerals within the meaning of Unit word as used in tho danse in the lease reserving to the lessor amongst other substances "minerals.” There is ample authority to show that stones are minerals. (Hero two decisions of previous cases were quoted;. Continuing, Mr. Crooke said;—Apart from the reservation of tho minerals in the ease, the stones formed part of the soil and could nor rightfully bo disposed of by the tenant without the iantiiord’s consent. As tho stones bclongad to the landlord it tollows, in my opinion, that the tenant received payment Horn the County Council for "the injury done and materials taken,” estimated by argument between the tenant and the council at 3d per yard. The defendant held a proportion of tho moneys he had received, which, represented the value of the stone in trust lot the plaintiff. He was bound to account to his landlord for tliis proportion ; in other words, he received the proceeds of tho sale of the stone for the use of his landlord, tho plaintiff. I think, too, that the defendant acted wrongfully in coming to an agreement with the council without notice to the plaintiff. Section HI., snh-section 2. of the Public Works Act, 1908, provides that reasonable compensation shall he paid for any injury done and material taken, and where any road board and the owner or occupier of land do not agree as to the compensation, tho same shall bo determined as provided for in Part 111. of the Act—by arbitration. Tho salient point is that the defendant has received certain moneys for materials which ho knew, nr ought to have known,. belonged to the plainMff. and for which ho must account to tho plaintiff. The defendant’s contention was. as mentioned in his letter, that the 3d per yard he received was for tho injury to tho surface and did not include the value of tho stone, and that tho Public Trustee had no claim to the stone, and this in view of the fact that ho is himself a member of the council, and tho vouchers for the payment by the council to him express the amount of tho payments to bo calculated on tho basis of 3d per yard, certainly a novel basis for estimating surface damage only. Tho main difficulty has been in arriving at an estimate of what proportion of the moneys should be allocated to the stone taken. The defendant stated in his evidence that tho greater portion of tho stone was taken from Mr. Gray’s side of tho river, as tho bulk of the available stone was collected on that side of the river. On this evidence ho has been receiving payment for stone which ought to have been received by Mr. Gray. I cannot, however, accept his statement, for Mr. Sladden (tho engineer) who prepared a plan of tho locality for the defendant, told mo that there was no difference in tho class of stone on defendant’s sido of the river from that on tho other sido. Tho value of the stone as it is in tho river-bed was slight. It was tho digging it out and carting to tho crusher which made it of value. The damage to the occupier was caused by the passing of tho bullock teams and waggons oyer the defendant’s laud during tho winter months. It is in evidence that tliis particular river is not so full of water as others in the winter, and the council therefore draws on this source for its supply of stono. In winter, naturally, more damage would bo done to tho land. Tho defendant, it appears, lost some cattle owing to those in charge of tho teams neglecting to shut the gates. It is reasonable to suppose that none of the stone came from .Mr. Gray’s land. In taking all these facts into consideration, I think n fair estimate is to allow two-thirds of the moneys to he for tho surface injury, and the remaining oue-third would represent the value of the stone. Judgment would be given for plaintiff for £lO 17s lOd. Mr. A, H. Johnstone appeared for tlio plaintiff, and .Mr. D. Hntchen for the defendant.

Mr. Hutchen asked that security bo fixed in fbe event of an appeal being lodged. T!io magistrate ’ fixed the amount at £'2o.