McGRATH v. WAITOTARA COUNTY COUNCIL.

Wanganui Chronicle, Volume L, Issue 12145, 7 September 1908, Page 8

McGRATH v. WAITOTARA COUNTY COUNCIL.

KIRKWOOD v. WAITOTARA

COUNTY COUNCIL

JUDGMENT FOR PLAINTIFFS FOR

£10 PAID INTO COURT,

The above cases in which each plaintiff claimed £52 damages to land which had been used as a road by defendant Council, were concluded. Mr Cohen, for the defence, called R. Bull, G. Mullins, Gi H. Dicksoh, and G. Mitchell, who.gave evidence concerning the land on. which the road was, the work done by the Council on the same, and the cost of turning the road into pasturage.

In addressing the Court, Mr Cohen criticised the evidence given as to the damage done to the land, and contended that plaintiffs had partly acquiesced in same. The Council was only liable for, its own acts. The light candy gravel as shown oy the evidence, might do the land good not harm. Counsel referred to the discrepancies of plaintiffs' witnesses as compared with defendant's as i to, the estimate of the cost of converting the road into pasture land, and submitted that the latter's estimate was tho more reasonable. He considered £10, the amount defendant paid into @ourt,_ ample damages. He contended plaintiffs had no right to appropriate the" £10 paid in to any particular class of damages. T Mi; ; Hutchison, for plaintiffs, submitted that the evidence showed plaintiffs had be?? protesting against the Council's '■.actions all along, and that there was'nb-acquiesence on their part. They were entitled to damages for trespass, as well as other damages for use and occupation, etc. Plaintiffs could appropriate, -as they had dons, the money paid'into Court as general damages and further-damages should; be allowed for the cost of restoring the land, etc. v-- His' Honour, in giving judgment, said the'measure of damages claimed by .plaintiffs is that, required to restore the land to its original condition. Evidence given' would show that the restoration of the land would cost more than the highest; value of the land. . The truo measure would be—by what amount has the; value of the freehold been reduced? tcKwhat extent has the freehold-of the farm been reduced? His Honour was inclined .to agree with the witness Mitchell, who said the freehold value of the farni,-as «a whole, was hardly affected. 'There was along the centre portion of the land^strip of gravel which throws of use ; half the land. He should Ijot' consider more than threequarters of "an acre of the land in question injured. The , plaintiff McGrath was entitled to' same 7 damage for exclusion, but her was not sure whether the claim might not be limited to six years only. He woiildj however.: assume that for 15 'or 16 years there .had- been some sort of exclusion. Plaintiff; had reaped some benefit from the land.; The actual calculation iwould bs a complicated one. The' payment of money into Court by defendant suggests that a cause of action was admitted. Counsel for plaintiff ; attributes the payment to one of the three items of the claim. Any damage comes under the first pr second item of the claim and the defendant in payment refers to the damage b^. gravel aridfdeprivation of use. This is an appropriation .'which the defendant" is entitled^ make. Plaintiffs' claim to ap- • wopriate, but there is no warrant for this. His Honour said he coiild take no = iiotice of the appropriation by plaintiffs. •He could not see how any amount greater than £10 would be elaimpd. Tlio 'same would apply to ■: Kirkwood' s case, as it had been assumed that the cases were alike. As to Kirkwood it was a mistake coming forward in respect of a ,new right acquired in February, 1908. He was onlytfie plenary owner from. thajr date, and- the order vesting, tho land in him; does not vest the action in r hyn (Webb v. National Bank of New 'Zealand). : The questjori had not been raisfed' in this, action;, however. His. Honour said that he considered, •. .tho ,-proper r course was t° allowplaintiff^'flko " £rQ paid1 into "Court. \ -.V- .",.-:/ ;'; 'x ''.>.."■/'' Judgment would be for plaintiff ip. ...case for., the amount paid' into 'TE6iiilt-i in' each\ case, stibjecb to costs for defendant in each case subsequent to r the date.of .payment into wCourt, wit-' s lira^es 5' exjieiyses and 1 disbursements -to übs^fixeWby-theubs^fixeWby-the Registrar/; ''■ :-" '■