INTERESTING POINT OF LAW.

Wanganui Chronicle, Volume L, Issue 12145, 11 August 1908, Page 2

INTERESTING POINT OF LAW.

MITCHELL v. HARKNES3

QUESTION OF RIGHT-OF-WAY

In tho Supreme Court, at Wellington, on Friday, Mr Juetico Cooper, delivered judgment in tho case of VV. Mitchell t. F. A. Harknoss, of Wanganui.

This was an action in which plaintiff claim-ed an injunction restraining tho defendant from blocking, obstructing, or otherwise interfering with a right-of-way claimed by the plaintiff.

. His Honour eaid that the "caso was a somewhat, singular one Plaintiff waa the registered proprietor of a leasehold interest granted to him by defendant in respect of certain land in Victoria Street, Wanganui. It appeared from a draft of the agreement that the defendant was to build on the land to be leased a house and shop, and to let the land with the buildings for a term of •seven years at a rental of £110 per annum, to run from tho date of tho completion of the structures. The agreement contained a, clause that there should be a right-of-way lift, wido for all usual purposes of communication between Victoria ATenuo and the land in question. The lease, which was executed on April 17th,■-■1905, contained a; proviso to the Gffect that tho lessor ! might make use of such piece of land over tho right-of-way as granted to j erect a shop or office provided he gave tho lessee in lieu thereof as good and equally convenient- a right-of-way. Tho right-of-way was never consented to by the Borough Council. The shop and dwelling wero erected in due course, and subsequently defendant intimated hisdesire to erect a shop or office upon tho right-of-way. An alteration in the position of tho■ right-of-way was agreed i to, and the singular course was adopted of altering a loaso which had been duly executed six months before, and to tho ' terms of which the mortgagees had consented in writing. The consent of the 'Borough Council to the altorcd right-of-way v. as obtained, and tho lease registered. Plaintiff very reluctantly agreed to the alteration, as he, cqn6idored that tho right-of-way as originally delineated was the more convenient, and ho consented thereto only when the defendant undertook to fence off a 2ft. passage.. The structure built on tho original righ boi'-way was of a temporaly nature only, and wc-s usod 83 a shop or office by tho defendant; and plaintiff used the altered right-of-way tor traffic and the 2ft. passage is a moans of ingress and ogress irom the side* dcor of tho shop. In 1008 plaintiff assigned his astato to trustees, who had since agreed to sell to/plaintiff's father, but there had been no assignment cf tho lease. The defendant, in April or May last, told plaintiff that ho wanted ■ to build on certain vacant land, and he ( Vi ished plaintiff to consent to the right- ' oi-way as shown on the altered plan being closed and Lho original ri&ht-of-w-ay re-opened. Plaintiii new held that the right-of-way on the altered plan was tho* more convenient, and the trustees had referred defendant to plavntifTs father, who had refused to consent cxcopt upon torins- whicli doisndant stctcd ho wa.3 unable to acct-pi. Tho first question, continued His Honour, which had to be decided ;,aa whether tho CourD could a-dmio evidence, showing tho circumstances under which tho alteration was made, end, if to, could tho Court than construe tho loaso as it existed up to tho time or the alteration, and determine whether or not the proviso aj it originally stood, permitting the defendant to substitute -another ngut-of-way. for the oho originally granted, had been exhausted. He did not think there w£>s any rule of law which prevented him trom so doing. Evidence to establish that tho,contract between tho parties had been carried out and a permanent unalterable right-, of-way had been created was admissible. He found inter alia that tha substituted right-of-way was intended by both parties ,to bo tho permanent right-of-way, and had boconio the permanent right-of-Tvay. No acquiescence was shown by tho plaintiff, neither had the trustees nor plaintiff's father agreed to tho al•teration now proposfccP by the defendant. ' -' '

Referring to tho objection to the a<l--mission ot tho loaso in evidence on the ground that tho alterations made.in November, 1905, wero equivalent to a roexeoution cf tho lease on that date, and therefore, that the leas© so re-executed had not been stamped, His Honour said that a fresh stamp wa3 required. Counsel for plaintiff had undertaken to pay tho amount oi duty to be assessed. But defendant in, his -statement of defence had admitted that the leaaa as execut&d on April 17th -vvas in tho unaltered condition alleged by tho plaintiff, and that it took elrecb a.i an agreement and exiktcd as an agreement Irom that date until the time* of alteration, but ho denied that it took effect as a- deed. He alleged that it took effect as a deed only from that time, but ho admitf-cd thut it was properly rtigiswifod on January litith, lyOb. Tho content*, ,ct the dwjunienc as is cxiited on April 17th, 190<5, and tip. to tho time ot the alteration 'weie c-dmittod upeni the- plea-dings, and his Honour did net think, theielore, that the fact that the delendant did not cause tho lea,se to ba re-stamped after tho altpraticn could now be raised by him, or that'tho omission of tho d-ri'endanb to have tho document re-*tamped could prevent tho Court from determining what the parties had really agreed upon, lie was ot opinion that the plainuir v.as entitled to tho relief claimed, and that an injunction must bo issued. ■■■. :

Costs were -allowed to tho plaintiffs as follow:—'Court fees lor issuing the writ; £3 3s for the amended statement of claim; £4 4s for; preparing■ for trial£7 7s upon trial, and £10 10s 'for an extra day, together with all Court fees paid since the filing of tho amended statement of claim, and witnesses' -expenses to bo ascertained by the- registrar at Wellington. Against these, costs tho defendant would bo entitled to-set: off tho cum of £5 5s for the proceeding vi Chambers, and all Court less paid by him m respect of any proceedings iii tho action up to the date of filing the amended; statement of claim.Subsequently, his Honour stated'that tho case was a unique one. Ho hac' ha said, been unable to find any really relevant authorities on the point, and counsel had been unable to assist him. The point was, in his opinion, one upon which it was desirable that there should bo a ruling of the Court of Appeal. Counsel for the defendant said he would tako time to consider the matter. ■'■-.•■

Mr Hutchison appeared for the plaintiff, and Mr Myers for the defendant: