SHEARER'S HILL DISPUTE.

Timaru Herald, Volume XIIIC, Issue 14324, 14 October 1910, Page 2

SHEARER'S HILL DISPUTE.

CLAIM FOR COMPENSATION. A WAIMATE CASE. 1 At the last sitting of the Supreme Court in Timaru, a case was heard between the AYaimate County Council and E. B. Harrison in connection with tha amount of compensation to be paid by the Council for certain land taken fcr road deviation purposes. Mr Husking. K.C., of Dunedin, and Mr Hamilton, of Waimate, appeared for the Council, and Mr W . E. Ivinnerney for Harrison. The judgment of Mr Justice Sim has been forwarded to Mr Tayier. ilegistrar of the Supreme Court at Timaru, and it is as follows — k * Tlie proceedings herein were brought- originally as u motion to set asU* a claim for £-135 Od made i»y xin* deiendant against the Waimato Countv Council under "The i'ubhc Works Act. 1903." as compensation fur land taken tor the purpose? oi' a road .and for land injuriously nfleeted •■y tiif construction ot the road. K was agreed at the hearing to treat the case as it the plaintiff bad omnia -m-ru proceedings under rule oi ;iie C'.-d* 1 or" Civil Procedure to obtain ar. injunction t:> restrain the detendant from proceeding further with h:s claim. Thti ground on which relief is sought is the parties, it is claimed, have settled by agreement the compensa-te-a to be paid to the defendant in tho matters referred to in his claim, and that the plaintiffs have ;;lv» ays l een ready and willing to carry oilc that agreement. Tne agr. ciiieu - on which the plain-tiif-i rely is contained in a written document which was signed on the :!Sr<l Aagu>t. by Messrs H. Hertslit-. J. Mundeii. and 1). A. Morgan, purporting to act on behalf of the defendant. and by Messrs T. L. Hart and r. .J. White', purporting to act on h.-haif of the Waimate County Council. That document is as folio vvs:— • August :23rd, 1909. —Re E. B. 1-Jar-:i.Nun*s Arbitration Shearers' Hill Road Deviation. —We the undersigned acting on behalf of Mr Harrison, and we t!:e undersigned acting on behalf of the Waimate -County Council do agree as fallows: to accept and to pay the sum or £7OO, as compensation in full for acquiring, fencing, forming, and

:i:a:iua:ng ilia road on the lands taken frcrii ifr Harrison's property, for tue Sharers' road deviation subject to the luiiov.'-np: conditions: "Water to bs put in trough on AV.P. side of road at i' orbes' boundary, lin. piping and litter at intake in position to be agreed ur>cn by D. A. Morgan and G. E. Brenner. All division fences to bo taken ni> where necessary and iLsed for continuing intersection fences to new road lino, subject to material being suitable. (rive additional gatos ijhux'U \\ lieiv- MrHarrison rcq\i:

now straining posts and stays l».> bo subii.-tutod at defective U> upon by C. E. Bromnor a:iti p. A. Morgan. Overflow from ttoiigii on fiat above liousa t-o be carri«l to main drain In tiles Koad line at windmill to be shifted to opposite side of mill and water carried ac.oss road. Title to Iv given bv M - Harrison.' * ~ "

'I h.s document is in terms an agrcenu nt made by tho respective agents of tlie parties. It was contended. how. ever, on behalf of the defendant, that what the parties contemplated was a submission to arbitration, and that tins document- ought to be treated as an artard made by arbitrators on such a. submission. The onlv ground for tins contention appears to be the heading ot the document, nanieiv 'Re £. I>. Harrison s Arbitration.' li, js clear, I think, from the affidavits thatt_ae i>arxies did not intend to submit me points in dispute t{> arbitration, and that the proceedings were not treated, at any stage, as an arbitration. J here was no .submission in writing, and -it is highly improbable t*iat if an arbitration had been intended the County Council would have been content to appoint only two arbitrators when the defendant had ;ti)pointed three. The representatives of the parties treated themselves t.trougliout as agents, and not- as arbitrators, and this w;m done with the concurrence of the defendant. I think therefore, that there was no submission to arbitration, and that the document must be treated as an agrc-e----ni'-iit. Ihe question is whether it is binding on the parties. The defendant s representatives were fully authorised to settle the matter on his behalf. After the document was signed it was read over to the defendant, r nd he expressed his satisfaction that the matter had been settled. There can be no doubt that, in these circumstances. the defendant is bound bv an agreement, unless the plaintiffs." for s>me reason .are not bound therebv. i It was contended on tile defendant's | behalf that the agreement- was not i binding mi the County Council and was therefore, not binding on the defend>ll. 'the contract was one which was required by law to Ik- in w*riting. ami. alne-nuh signed by two members of the Council. they had not bean authori.-od. it was contended, to .sign it on behalf .>? the Council. Section 14-t of '-The Counties Act 1008" had not been complied with and the. ease, it was claimed, was governed, therefore. by the decision in the ease Revnoids v. Nelson Harbour Rnard. 23 L.X.Z.L.R. ifj-j. It appears from the arhdavits that the two members oi the Council who signed the agreement were members of standinir committee. known as the Shearers' Hili Road Committee. which had been set up in November, ISO 7. The committee was composed of the two members of the Wa.ihao riding, in which I the road was situated, and the county j engin'-er. The minutes of the Count'v | Council show that this committee received instructions from the Council

from time to time in connection with the deviation, and reported thereon to the Council from time to time. There it not. however, any resolution which, in terms or by necessary implication, authorised the committee or any members thereof, to sign on behalf of the Council any such agreement as that now under consideration. If the matter had rested here the; defendant would have been entitled I ■' think, to succeed on this ground. The matter did not, however, rest- there and "the subsequent proceedings had l the effect, in my opinion, of binding ! the County Council. The committee reported in writing to the Council as to the agreement made witli the dedendant's representatives and submitted a copy of the written agreement. Tin's report was considered and adopted at a meeting of the Council held on the 25th Auguust. Its adoption in tnis way, amounted in effect, to a resolution that the agreement should be carried into effect by the Council: (Hooker v. Morris 20 N.Z.L.K, 195.) It amounted also to a ratification and adoption by the Council of the action of the two members of the committer in signing the agreement on behalf of the County Council. Tins was done before any repudiation by the defendant- of the agreement, and the agreement thereupon became binding on both parties as from the date oil which it- was made: (I'roudfoot v. Otago Harbour Board 0.15. and I<\ (C.A".) 109) ]t was contended also on behalf of the defendant that, as his mortgagees had not concurred in the agreement, there was no concluded agreement, and the agreement, therefore, could not be enforced against the defendant. It seems to me that it was not neeessarv to make the mortgagees parties to the agreement. The mortgagees had not made any claim for compensation and it was competent for the County Council to agree with the defendant as to the amount of compensation to be paid in respect of land taken ;ui;l huid injuriously affected. If the mortgagees do nut consent to tlie moncv being paid to the defendant, any 'difficulty caused thereby can he' dealt with under Sections 78 and SI of "The Public Works Act 1905."

1 think, therefore ; that before the piesent chum was made there was a valid agreement hetweon the Countv Council and the defendant settling tho compensation to be paid in respect of the matters now included in that claim. In_tlio.se circumstances tliere is jurisdiction to interfere by injunction tn restrain the defendant from proceed ng with his claim (Duke of Norfolk v. Tenna.nt. 9 Haxe 745.') Judgment for plantiff for an injunction accordingly, with costs according; to scale, as on a claim for £IOOO, and disbursements.

Mr L. E. Finch (of Perry Perrv and Kinuerney) at the Court yesterday when the judgment was delivered, mentioned the matter of fixing security for costs on appeal, ns the defendant intended to take the matter to a higher Court.