WARDEN'S COURT.

West Coast Times, Issue 351, 7 November 1866, Page 3

WARDEN'S COURT.

(Before C. C. Schaw. Esq., Warden.) Tuesday, November 6. Hokitika and Greymouth Tramway Company v. Wells, Woodrough, and others. — The Court again sat upon this case to-day, to hear the pleadings of counsel and receive the decision of the assessors, who were appointed to decide upon the amount of compensation that should he paid to defendants for the encroachment of the tramway upon their cultivated land. Mr South, on behalf of the defendants, snid that as the case would in all probability form a precedent on which similar cases would for the future be decid.d, that it b> came necessary for him to submit on what principles he relied for compensation, which he thought he could show that in justice and right they (his clients) were entitled to. It had been st.ited by that Court, and seemed to be taken for ganted by the other side, ihat the only damage which could be allowed was under clause 11, sub-section 5, of the Goldfields Rules, which states that '' In all cises compensation for actual damage or loss should be estimated by assessors, and p-tid to the occupier of such area, by the persons desirous of mining thireon, prior to their taking possession thereof." Now even if that clause bore the interpntation put upon it — and he submitted it only applied to perBons desirous of mmmg — it should be construed to all loss, both precedent and prospective, which his clients had sustained. On reference to another clause of the same rules, however, No. 15, sub-section 7. headed " General regulations,' 1 it was declared tint compensation might be awarded in certain cases, provided that such com pensation did not exceed in amount twothirds of the estimated value of any .work actually performed there or in connection therewith. Now the principle was equally applicable as that laid down in the foi mer rule, as also was that estubli-hed by the 49tb section of the Land Clauses Consolidation Act, 1863, of x ew Zealand, adopted totidem vei-bis with the Imperial Act, which enacted that compensation should be awarded in respect of land injuriously affected. Now without doubt the other side would contend that this act only applied to lands alienated by the Crown, yet he (Mr South) submitted that it contained the true principles on whicii the assessors should base their compensation. In these cases the di fendants were market-gardeners, and every load of manure placed upon the land had cost from 15s to Ll. The land was reserved for roads or &uy other purpose when it was taken up by thlni, and, moreover, they were recognised by the authorities at the time they settled there,, and having established an equitable interest by holding the lands with consent of such authorities, the company could not come in now under a mere license and injute a vested interest. Market gardeners were one of the sinews of this locality, and should in eveiy way be encouraged, and their expended labors respected insteml of ignored. For these reasons he (the counsel) submittt d that the assessors should awar.d the compensation in a generous and liberal, and not a niggardly spirit. Mr Campbell, replying on beh.ilf of the plaintiffs, said that the company was prepared to pay to parties having actual right to compensation whatever compensation the law might award. Ilia learned friend q-^ottd from acts having nothing to do with the case before them, which rests entirely on the Goldfields Kegulatiuns, and according to them only actual damage enn be entertained. Under ordinary circumstances, no one occupying a "publ'c road could claim damages, but as it appears that some onscu"rity exists as to whether this road was a declared one when defendants took up their land, the Warden considers that some compensation should be awarded. It will, therefore, lie the duty of the assessois, as the company clearly have a right to run the line through these gardens, to decide upon the amount of actual damage f he defendants will suffer. The Warden, in his address to the assessors, bid them to divest their minds of anything either of the learned counsels had said touchiug the Goldfields' Rules or Consolidation Act, as the case was one of equity, and came under the 26th clause of Goldfields' Act, which says: " Every such court (Warden's Court) shall have power in every case brought before it, to make such decree or give judgment as shall be just, without regard to any rule of law or the practice of any court of law or equity, and to award damages and reasonable costs, or direct payments to lie made to either party." The assessors would, therefore, be guided by this, and give reasonable and fair compensation. The jury then retired, presently returning, with a verdict for Wells and* Woodrough, who were to receive L 99 10s compensation, and as the tramway would run through the centre of their ground, a close fence should be erected on each side of it, at the expense of the compauy, to separate the garden from the tramway. In the case if the defendant Viardit. they should allow him Ll2 to cover the expense of removing his pigstyes. The gates of his stables would also have to be turned round so as to open inwards instead of outwards, and a close fence erected in place of the one at present standing Moreover the tramway was not to encroach upon defendant's cultivated ground — that was distinctly uiali-rstood when they ma<le the assessment, as Mr Gibson stated t! at by making a ver\ slight deviation the gardens could be avoided. < Respecting 1 lie other defendants, the assessors understood that arrangement!* hud been made with the company out of curt, excepting tie d»fendant Millar, who was waiting for the Wai den to -visit his ground. The Warden said ho intended to do so that afternoon. He also stated, in a most pointed manner, that as the registration of the allotments which had been under dispute expited they would become null and void, for he should refuse to renew them. He was determined to preserve the two chains above high-water mark from encroachment. The Court then adjourned until Friday next at 1 1 a.m.