Magistrate’s Court.

Waipawa Mail, Volume XXIX, Issue 5348, 5 December 1908, Page 1

Magistrate’s Court.

THURSDAY, 3rd December, 1908.

(Before Mr S. E. MoOarthy, B.M )

Waipawa Borough Council v. Lissie Rathbone. Mr Norris for plaintiff, Mr Lee for defendant. The following evidence was taken after we went to Press on Thursday, Mr Jull continuing his evidence : By Mr Lee—The plan showed a road alongside the domain. As far as he knew this plan was in possession of the Board as long as he had been a member but he did not remember the Board referring to that plan.

Mr Lee read from a copy of the Waipawa Mail, of June sth, 1900, where at a meeting it was stated that Mr Bathbone considered the lower portion of the road was the Board’s and that Mr Jull had said he did not know whether the lower portion of the road was a public road or not. Continuing Mr Jull said that he would not say anything as to the correctness of that report but an arrangement had been come to with Mr Bathbone which Mr Bathbone had not kept to. The Town Board was the Domain Board from when the old Waipawa Eoad Board went out. He did not remember stating at a Board meeting that he did not wish to call upon Mr Bathbone to do anything to the lower portion of the road. Mr McGreevy was at the interview on the ground, but he did not remember any interview at the office of Mr Bathbone. The Town Board was to take over the stroet from the top of Kenilworth street. Asked if he remembered what he was supposed to have said, the witness said that an arrangement had been come to. Mr Lee asked if the letter of the 3rd July, 1900, was a business letter, if it did not montion that a filling was to be done. Witness replied that he had nothing to do with that; an arrangement had been come to which was not kept by Mr Bathbone. Tradespeople used the road. All the streets had been taken over by the Board in Abbotsford township. By Mr Norris—He would not attempt to explain why the Board never referred to the lower portion of the road in the letter of the 3rd July, 1900. An arrangement had been come to with regard to the whole of the road and not for a portion of it. S. McGreevy, senr., said he had known Waipawa local affairs intimately for 45 years. He was a member of the old Koad Board. Mr Abbot fenced in the whole front section of Abbotsford township and put gates in. He remembered the domain being fenced on the south side. What is now known as the Domain road had been fenced in from Churchstreet, and enclosed a small paddock used by those who had a right to do so from Mr Bathbone. Prior to 1899 he never heard of any road as a Domain road. The fence round the Domain was erected as a result of a resolution passed at a meeting, 1879. There was no other fence, as now, a chain away, until 1897. Mr Bathbone told him then that he was fencing and asked witness if he thought the Catholic Church would pay half. There was no mention of a road before 1890. He remembered there was an arrangement between Mr Bathbone and the Catholics. It was common talk. It was about that time the road was talked of. The local authorities had not ontirely recognised all the road. At one time he would have voted to take it over as a road whether it was one or not, to avoid litigation. The road was never taken over nor were any funds spent upon it. His intention by moving a resolution on the 30th March, 1885, was for the Board to work from one plan, for the others were muddling them up. By this plan the streets were squared and some people were compelled to put their houses and fences back. It was the only plan recognised by the Board from that time to this. He corroborated Mr Jull’s evidence regarding the chaotic state of the plans and said Ellison’s plan was prepared to set these matters right. The plan j was sent by the Board to the Lands Office to have some corrections made. He had no knowledge of the Domain road at the time and could not say whether the Board had. The Domain road was not a subject of discussion in those days. He was one of a deputation that waited upon Mr Bathbone regarding the formation of the road and Mr Bathbone suggested that a pipe drain should be laid to prevent flooding. No suggestion was made as to who should form the road. He knew Mr Bathbone well and his general bearing towards local authorities was “a bit against the Government.” The reason reference was made in the minutos to the lower part of the road was because all communications from Mr Bathbone came through lawyers and the Board was chary. He thought that if Mr Bathbone had formed the road

properly to the gate the Board would have taken it over without it being metalled. Hr Rathbone had the plans and specifications prepared and the Board approved of them. By Mr Lee—Before about 1866 Abbotsford run was a common to which everyone had access without permission. The Domain road was part of the commonage. Tn going to Abbotsford through the town paddock one would go through a gate at the 1 top of Kenilworth-street, but there was no necessity to do so, for the land was all open for three miles each way. He had a recollection of the convey- ; mice of a police paddock which was r afterwards handed over as a cemetery, j It was afterwards exchanged and be- ] came the domain. He was a member of l the first Domain Board. Mr Arrow i was nominally the first tenant when I the domain was leased but he did not 1 fence it. The fence was paid for by ' public subscription. He did not know ! when Abbot left New Zealand but he knew that he died at Home. He did not think there was a gate in the fence opposite Church-street. The gate was in the centre of the belt, i He could not say when the levels 1 plan was prepared. The report of the Mail, of 3rd October, 1903, con- 1 cerning what he said about the road at the Board meeting, was incorrect. He helped to make the arrangements ' with Mr Rathbone but had no recollection of details. The first entrance to the domain, he thought, was from the back of Collett’s, but he could not recollect clearly. H. Fletcher stated that he was appointed overseer of the Town Board 14 years ago and he had been a resident of Waipawa for 30 years. He knew the Domain road, which was fenced facing Church street. Practically it had been there as long as he could remember. It was taken down for a few weeks but was re-erected. The public had used the road for the past two years. The first person to live on the extension of the road was Hentskie, who built there about eight years ago. There was no formation nor metalling upon the road. He was instructed by the Town Board to measure the formation and raotalling done by Mr Rathbone. He prepared the report and handed it to the Board. That was after Mr Gilmour had prepared his plan. Nothing further had been done on the road since he made his report. By Mr Lee—The gate on the road was not locked. The road was used by the tradespeople going to the houses. Andrew Gilmour stated that he prepared a plan for the extension of the road for the late Mr Rathbone, for the purposes of formation and metalling. He submitted the plan and said he could make a cheaper road by curving. The witness gave expert evidence regarding the levels and the formation of the road. The Court then adjourned until the following day.

FRIDAY, 4th December. The hearing of this case was resumed on Friday morning, when the following evidence was taken : —• Martin Collett stated that he had been a resident of Waipawa for over 30 years. His house was opposite the domain. The lower fenco shown on the photograph produced was the fence that separated the domain from the road. He could not say if the domain was fenced at the back. There was nothing to indicate a road in those days because there were no fences. The object of the fence was to divide the reserve from Abbot’s run. He was not certain whether the fence was on the present line. He had two cows running on Rathbone’s property before the other fenoes were erected. The fence between the Catholic property and the Domain road was erected after the Catholics bought the property. The eastern boundary of the paddock was the domain fence. There was a fence between the Catholic school paddock and the domain but he could not say its line. The road was fenced off shortly after the Catholics bought the

property. He could not say whether the fences were upon their present line. He remembered Mr Rathbone taking a crop off the paddock to the north of the domain. He could not say whether the crop land ran to the boundary in Church street. By Mr Lee—Abbot erected a fence on the belt, north of the town, before the sections were sold. He remembered Collins being an owner of Abbotsford. There were practically no fences then.

W. H. Rathbone (recalled) stated that no rates were paid upon the Domain road. He arrived at that conclusion by the area of the block which had been checked by the Government Valuer. He could not say whether the whole of the area of block 57 had been taken into consideration. H. M. Rathbone stated that he was one of the co-attorneys of Mrs Rathbone. He received a notice from the Waipawa Borough Council, about the 10th or 11th that an offence had been committed in respect to using that road. His power of attorney gave him power to dedicate roads to local authorities, and it may have been the road now in dispute. The power was given, however, particularly with regard to Melville street. This power had not been revoked. He was a member of the Town Board in 1907, and he continued a member until the borough was formed. Witness was asked to produce the title deeds of the property, and Mr Lee said while he might not object to some title deeds being produced, he was objecting to the principle that the witness be compelled to produce them. A copy of the conveyance Abbot and others to W. Rathbone was put in, and witness was asked, did not block 57 cover the area of which the road was a part?

Mr Lee—That is one of the matters which has to bo proved.

Mr Norris—That is what we claim the deed shows clearly. The Magistrate—The deed shows that the domain was bounded on the west by a road, and only an act on the part of the public or official of abandonment would hold. Mr Norris claimed that Mr Abbot had abandoned his intention to dedicate by conveying the whole to Rathbone. The Magistrate—Very well, we will not discuss that now. Witness continuing —No plan of the road had been deposited by Mr Rathbone, and he did not remember any authority having been received from a local authority to fence the lower end of the road. Mr Norris produced a notice. Mr Lee said he would object to the admissibility of the notice as it had been signed by the solicitor and not by the town clerk. Witness continued—Was present at a meeting of the Town Board in October, 190 G, and the chairman had remarked that Mr Rathbone’s reerecting the fence had settled the question of whether the Domain road was a road. He had not assented or dissented to the chairmun’s remarks. Ho remembered that until the sale of the land adjoining the domain the eastern boundary of that land was

the domain fence, and there was nothing to show that a road existed there so far as he knew.

By Mr Lee—He had not assented or dissented with the chairman’s re marks at the October meeting. An objection was made at that meeting to my speaking on matters, as I was au interested party, although I was not other than being a son of the party. The work on the top of the Domnin road was completed in 1906, and the fence was taken down after tho wink had been done. At the time that Mrs Kathbone received nolico to re-erect the fence negotiations were going on between his mother and the Government for sale of part of the front portion of Abbots ford, and one of the conditions was that the Government would put through this disputed road. Mr Lee here put in conveyance from Abbot to Brown showing block 57 had an area of 257$ acres, with a road on the western boundary of the domain ; and also a later deed from Abbot and others to Bathbone showing that block 57 had an area of 257$ acres. He also put in a conveyance to Archbishop Bedwood of part of block. Witness continued—Up to 26th September, 1903, there had been no question raised by the Board that the Domain road was not a public road. On Ist October the Board decided to inspect the ground and report. To his recollection the report in the Mail of what Mr McGreevy said at the meeting was correct. He had heard his father discuss the question of the Domain road and he always said it was a public road. His father said he would not consent to allow the Bpoil from the upper part of the road to be used for filling tho lower portion, for ho wanted it for other purposes. The plan (produced) was nearly always used when he was a member of the Board. The houses were put up on the extension in 1898. The owners went through the Domain road along the extension. There was a gate on the road, which was not locked. None of the attorneys of Mrs Bathbone acted separately. The notice from the council was addressed to Messrs Bathbone Bros. At that time the firm of Bathbone Bros, consisted of himself and Mr W. H. Rathbone. The other attorney was not a member of the firm at any time. He had never given permission to anyone to use the Domain road and he had never heard of his mother doing so. His mother, since she left the colony had not taken any part in the Domain road question. He had often shut the domuin gate, but latterly as their stock was secure, he had not paid much attention to it. He was present at interviews with the valuer when the areas were checked and the road was not included. With the exception of a short interval there had not been any , variation in the fence. He remembered a meeting being held on the ground, in 1903, when Mr Limbrick asked if his father were willing to allow the spoil to be thrown into the hollow below and on hearing that he would not, Mr Limbrick replied to the effect that in that case the Board would not proceed with the work. Gilmour’s pegs indicated the centre of the road.

By Mr Norris—When negotiations took place between the Government and his mother for the purchase of the property a condition was that the road should be formed. The hinge on the gate may have been broken several months. Prior to being left permanently open they closed the gate, though others often left it open. It was generally closed. The road was excluded from the land on which they paid rates and after examination of rate demands, etc., they came to the conclusion that the land did not belong to them. The whole of the paddocks were not surveyed for town boundaries.

E. J. O’Brien (recalled) gave evidence respecting the area —44 a 16p—on which rates were levied by the Borough Council. S. McGreevy (recalled) identified from a photograph produced the line of fence erected by Abbot. The fence was not identical with the one now there. The eastern boundary of the Catholic paddock, when it was used for grazing, was the domain fence. There was nothing to indicate a road except a gate, before the Catholic school was erected. It was across the present domain and its use was to let cattle in and out.

By Mr Lee —He never heard of anyone from the back country using that road as a track in tho early days. W. I. Limbrick stated that he had always found the reports in the Mail very accurate but he did not remember Mr McGreevy stating that part of the road was a public one, as reported in the Mail, of the 3rd October, 1903.

By Mr Lee—Mr Bathbone asked the Board to join in a metalling contract and the Board after inspection refused to do so, as the old agreement had not been carried out. Mr Bathbone, through his solicitor, asked in what respect the agreement had not been carried out and the answer was that Mr Bathbone’s attention be directed to the resolution of the 3rd July, 1900. The Board never treated Mr Bathbone’s letters seriously, for they were of opinion that Mr Bathbone was trying to trap them. Personally he did not know of any arrangement made with Mr Bathbone regard filling in. His Worship said the issues were : —Was there a track in use ; was it a public highway or a private right-of-way ? If it were found to be a public highway it would not be competent for a private person to open it. If not, when was it permitted to be opened and by whom ? If permission were given by defendant, was it six months before the information was laid and whether there was a question of title involved, His Worship said there was some ground for contending that the Domain road was a public road but there was no ground to say the extension was. That was a private road for the purpose of subdividing the property. He was inclined to the opinion, at present, that if Abbot had any intention to dedicate the road the only person who could abandon it was someone on behalf of the public.

In an able speech of two hours’ duration Mr Lee reviewed the evidence and quoted many decisions bearing od the case. Ho afterwards called - Arthur Kennedy, who gave evidence respecting the copying of plans. His Worship reserved his decision.