Magistrate’s Court.

Waipawa Mail, Volume XXIX, Issue 5341, 19 November 1908, Page 3

Magistrate’s Court.

THIS DAY. (Before Mr S. E. MoCarthy, S.M ) POLIO* CASKS. Edward Tnrfrey (Wakarara) and John Woods (Tikokino) were oharged with Jailing to send their children to sohool the required number of timeß in the week. They wars fined 10s and costs 17s 6d, the Magistrate remarking that Turfrey’B was a bad oase of neglect. Amelia Blaokmore and F. M. Saunders (Waipuknrau) were similarly oharged and fined 2s and 17s fid costs. Te Pewa, a native guardian was fined a like amount and costs for the same offence. Several other oases were adjourned until the next Court day. Mr Lee appeared for the Education Board. F. S. Wells (Waipukurau) was oharged with failing to stamp a rooeipt, and was fined 5s and costs 7s. His Worship thought the oase was one of an oversight only. CIVIL CASES. Judgment was given for tho plaintiffs in the following oases : —PenniDgton v. W. Warren, for £5 Ib Id and £1 2s 6d costs ; P. Barrie v. Motua, for balance of claim 15s and costs £2 12s fid; John Adams, Benr, v. J ohn Saunders, for £3 IBs and 5s oosts. Waipawa Borough Council v, Mrs Rathbons, an aotion regarding the opening of a private road. Mr Norris for plaintiff, Mr Lee for defendant. Mr Norris said the information was laid under the Aot of 1900 and he quoted from it, regarding the definition of private roads and streets. The faots were that the earliest plan was shown on a conveyance from Mr Abbot to the Superintendent of the Province. Subsequently a plan was deposited in tho Deeds ofiioe, and no other plans showing the road had been deposited. The bit of road in dispute, he contended,

was part of the Abbotsford estate and in the conveyance of the run from Mr Abbot it was not shown as a road. In 1897 a conveyance was made of a part of the property to the Catholic presbytery and conveyances were subsequently made to Searle, Hentekie and W. H. Rathbone but no deposited plan of the road had been made or its dimensions shown. The Town Board had plans showing the road but they bad not been adopted as authentic. Ellison’s plan in 1884 was regarded as authentic, and did not show the road. In 1889 Mr Rathbone approached the Town Board to see on what terms they would take over a portion of the road. In 1890 the Town Board inspected the land to arrange on what terms they should take over part of the road. Mr Gilmour then prepared a plan on Mr Rathbone’s behalf; the work was entered into by Mr Rathbone’s employees but after inspection the Beard declined to take over the extension of the road as it had not been done properly. He contended, however, that the work on the road was beside the matter. The Board had never any intention of taking over the bottom portion, which was Mr Rathbone’s property. Considerable correspondence had passed on the subject but the Board always contended that Mr Rathbone had not completed tho work satisfactorily. Mr Rathbone had, in a letter, claimed that the top portion of the road was his and the bottom the Boards’e, but the Board did not recognise his claim and remained silent. Until 1899 there were no residences on that part of the road and the only use it was, was for acoesß to the Abbotsford run. Sinoe 1899 three houses were built on the road and the residents used it. In 1896-7 the road w&b being used and its use was oontiuuous until the present. Later Mrs Rathbone pulled down the fence which

existed at the foot of the road to give aooees to the houses beyond, no doubt with a view of bringing matters to a head. The Board called upon Mrs Rathbone to reinstate the fence, wbioh Bhe did. Neither Mrs Rathbone nor the present owners had ever deposited plans of the road but had acted as if the road were their private property. Mr Rathbone had shown acts of ownership by grazing and fencing the road. An offer to lay down pipeß had been made by Mr Rathbone. He had also undertaken an agreement to dedicate the road. The road had not been thrown open unreservedly to the public until the last few months. Mr Norris then argued that the proper acts of dedication had not been made and that Mr Rathbone had not lodged any plans showing the road. The local authority had not spent any money upon the road or exercised any control ever it. Mr Norris then mentioned several legal points in the action and argued at length. Mr Norris continued to quote law cases as to what constitutes dedication of a road ; and what acts have been held, on the part of the owner of the soil, to be a presumption that he was opposed or did not intend to dedicate the soil for a road. He oonoluded by stating that he had dealt so exhaustively with the law points as he was in the dark as to what line Mr Lee was taking. Mr Lee said he held the Court had no jurisdiction in this case, and he was not waiving any of his rights on this point by allowing the case to proceed. Edward O’Brien, clerk of the Waipawa Borough Council, said he served a notice on August 10th, 1908, by post to Messrs Rathbone Bros., that proceedings would fce taken against them, as attorneys for Mrs Lisaie Rathbone, for using the land between the Catholic School and the domain, as a public road without the consent of the Council. The land shown on plan (Ellison’s) was the land meant. By Mr Lee—Witness said he knew of the plan only by reference to a minute of the Town Board of 1884. The Borough Council look upon this plan as the original plan of the township. He knew of no plan deposited by Mr Abbott with the Registrar. He had at the Counoil Office, other plans of Abbotsford than Mr Ellison’s.

Mr J. O. Taylor was giving evidence when we went to press.