RACECOURSE RIGHTS.

Wanganui Herald, Volume XXXXIV, Issue 12883, 25 September 1909, Page 6

RACECOURSE RIGHTS.

SUPREME COURT HEARING. Evidence Concluded. Judgment Reserved. Mr Justice Edwards on Thursday continued i fcho* hearing* of the case in which the Trustees of the Wanganui Racecourse claimed £14 damages for trespass against certain Gonvillc iciiidents. ■ The following is a report of Thursday's proceedings:^— COUNSELS' ADDRESSES. Mr Hutchison then addressed the Court. Ho said the foundation of the whole case was the Crown Grant of 3rd June, 1861. The plan, on ihc gi:ant was peculiar. There were two pear-shaped pieces of land, on ;one, -th© word "race" and on the other "course." The land was estimated at 387 acres, and the land was vested in SuporinStendant Featherston and his successors in j trust for purposes of public utility for th© people of Whanganui. Mr Hutchison referred to an Act relating to the grant .of land for public utility. The Act stated .that no land under this grant should be , alienated by lease or sale for a greater term than b years unless Dv a special Act. question of "public utility" was argued in a case in Wellington. The case was similar to that before the Court. He •isubmittc^ that the meaning was that of a •'recreation ground." The same term wasuscd in a case reported in Law Reports' No. 21. Tho circumstances were in. this .case different but tho paraphase of tho .words "public utility" was that of a. "pub.lie recreation ground." Mr Hutchison assumed that under the grant of 1861, not only the racecourse, buv> th© strip of land .on which the pines were planted, came under the grant and couki not but be used ifcr purposes of public, utility. A race4course was not that- It was used for the 'amusement of, -uol/ to say gain, to a certain class. The nest, legislation dealing .with the matter -^vas in 1862. He sub- , mitted that tikis Act, was ultra vires. "r« .purported to bo an Act to regulate the 1 Wanganui and Rangitikei racecourses. No mention: had previously been made of the , Rangitikoi racecourses. The deed went on to say that the management should bo ■vested in five trustees. Mr Field and Mr Morgan hsfd, no recollection of any election^ but there appeared to have been some! lnns: of an election in 1865, when .the provinces were abolished. This was 11 yeans aker the Act was passed, whereas, tho Act said the> election was to be , held in two months after the passing of the Act. An election, was also to take place eyery two years afterwards. These live gentlemen seamed to have sprung from tho bratin-of the superintendent. There was an important clause on which his friends , (Messrs Huliton and Cohen) might rely — that?.. in, ,-fche ■exeat of a vacancy, the superintendent might appoint the trustees. Tlio \i-t alst> said that it should be lawlul for the trustees to accept a oonveyancc for the purpose of the Act. Clause -5 said it would be lawful for the trustees to let the land. Mr Hutchison said the .'loiiHiuif of the word "let" Avas difficult to understand. Th© land could not, at any rate, bo let for more than 3 years and it might possibly mean only to be let for grazing. But he submitted that the trustees were appointed to manage the racecourse, themselves. The trustees were also to hold a public meeting: and submit a. statement of their finances. Power of controlling sports was also given. It could not havo been intended that 61 acres should bo shut up from tho public except .v nuc days. The next Act referred to th© fiv© gentlemen as "trustees" and it wad contradictory. It also said that th© land was set apart for a "racecourse." This Mr Hutchison challenged, th© statement not having been made in the original grant. The superintendent of the provinces could not divert the purpose of the trust. The Abolition of the Provinces Act in 1873 Mr Hutchison aJeo referred to. Ht'ctioii 7 gave the Governor the powers of tli© .superintendent but with exceptions. The next legislation (sth July, 1880), \ya« peculiar. Mr Hutchison had been imabl© to discover that there was any, power to grant the same land twice unless there^jjiad been some mistake, but there had evidently been none. The pur- • •m.Sj was also altered by the Crown. The •1 was a lca.se from gentlemen . in s.k .lilied themselves as the trusu;e.s -I-J. A. Campbell, Dr. Earle. A. Hatrick, J. 11. Nixon, and A. D. Willis— to tho Wangaaui Jockey Club for seven yearo from 1903. Mr Hutchison submitted that they Lad no power to leas© for 7 jvars 1 . Th© trustees "then made regulations v Septeraber 14th, 1903). On page 5, paragraph 9, it said "subject to all right of acoos3, lb© reserve is for the use, etc." These regulations seemed to ao in conflict wjth the demise. With regard to th© strip of" land on tho S.W. side, on which the trees were planted, ihis wat. inchided- in tho grant of 1861, and aLso that of 1880, ticUifci'erring the grant to tho Mayor, Councillors, and burgesses of Wanganui. As far as Dr. Earle had a right to transfer, he had done so, subject to the right-iof-way. With regard to the right-of-way, there was a user irom the most ancient time on a well denned route. If may have been, like a string — it might "sag — but there was a route. Mr Hutchison* then referred to various cases reported in the Law Reports bearing incidentally on, the question. In those cases th© lands were granted for "racecourses," and there could be no question as to what the course was for. The plaintiffs were "ringing in" training, which Mr. Hutchison considered • ultra vires. Again on the question of th© right-of-way, he referred to Pratt and McKenzie on, Highways, and 1 to various other reports. As to the strip of land, it was clear that any 4®vis« that the Council was allowed to make, wad made subject to the easement. According to all the evidence^ .there was a weIJL defined, track over 1 the course, and! a gate was put in for thp benefit of th©! public. That the public had to duck under some of the rails did not affect the right of the public to the land. It was a slight inconvenience, but so was climbing over a • style. He submitted that the plaintiffs had failed to substantiate their case. There had been a right-of-way from time immemorial. Mr Mackay also addressed his Honor on the question of th© right-of-way.. The maxim was, he said, "a right-of-way, always a right-of-way," and no obstruction' could undo it. He referred to numerous cases in support of his argumenf. ' ( Mr Hutton, for the plaintiffs, addressed the Court. He admitted that Mr Hufcchi- I son had shown considerable ability in probing into old documents. He thought, however, that the difficulties could le ex- | plained. He submitted that from the whole of the titles it could be /assumed at this lapse of time that everything had been done. Considerable argument took' 'place letween counsel and his Honour. latter remarked that the' documents wjere a cci les o£,,pud<lles, and he could not undeistmd | how- public documents were so ,tudly prepared. v r p The meaning pi "public utility" 'wes then discussed: . Mr Hutton thought? that tradition had handed it down that in the , days when the grant was made fating' was considered a public utility and it was' a redreation. .-.,- \ , , * His Honour remarked that they j.^i :<, i pay 2s to get on to the course. r

Mr Hutton asked what recreations the people hadrin those days. Mr Mackay— "Mi 1 Field bays they played cricket." „...,, Mr Hutton mentioned"' that the grant was for racing and "pther purposes." His Honour considered that did not improve the positions Mr Hutton then referred to the lease to the Jockey Club, which lease he thought was justified under the circumstances and conditions made, and that the trustees wore merely desirous of carrying out the trust. The course was benig used for all purposes. The original teruu had been well complied with. Mr Hutton went o.n:-"I understand that mj friond, Mr Hutchison, has not taken any 1 objection to the election. of the trustees? Mr Hutchison: "Oh, yes; I said tLej had no beginning." Mr Hutton contended that the Governor had made the appointment, and that tho trustees were validly appointed. Mi Hutton then argued about the meaning of 'municipal purposes." He said he Lad never been able to get a, meaning for i£, but contended that it was "public utility." He went on to say that the Jockey Club had possession of the course. His Honor — "I am not quite sure jcu have possession. This document is very jDeculiar. No lease is a lease unless it gives exclusive possession, and a .oause in it destroyed that." Mr Hutton — "Does your Honour then suggest that although it is a lease in form, it may not be in reality so,?" His Honor said he did not say that. Mr Ijutton went on to say that, apart from the lease, the argument was that the' Club was in possession of the land. Ihey had a caretaker there whose work it was to look after the land. They had erected buildings and made other improvements. Mr Hutchison said the buildings were not on the course. His Honor, and Mr Hutton then took part in a lengthy debate on what constituted possession, his Honor saying that the provision at the end of the leaso . seemed to indicate that the Club was not in possession. Mr Cohen then addressed the Court at length, laying emphasis on the intention to dedicate a road. He referred back to the time when there were but a few people living on the Gonville side, and said it would have been a churlish thing if permission to cross the racecourse had been denied. Mr Cohen said there had never been any clear course, and it Wa* obstructed till this day in the way ol lails, etc. Mr Hutchison had said there was a public road from Ingestre Street across^ His Honor— "No, he said a public footway." Mr Cohen said there had never been a footway. His Honor said people managed to get through without much trouble. Mr Cohen maintained that there were obstacles. ' n His Honor thought they were no greater than stiles in the Old Country. Mr Cohen referred to the case Sutherland v. Cameron, heard in 1908, when the case concerned a right-of-way. The track was very distinct, and money had been spent on it. Mr Justice Cooper decided that there was no dedication of a road and there was only a slight obstruction in the form of a slipxail. His Honor said he did not suppose that fiie rails on the racecourse were for obstruction. • Mr Cohen said thcjje was., no constituted track llic date had, not befcn given whea the highway commenced. He askeS his Honor to consider the obstruction not only on race days, ,but by physical obstruction on other days. His Honor submitted that the bars were to keep the horses in. Mr Cohen said he didn't know if that were so He ho p ed big HoMr Bider the facilities jjiade, but said there liad been -no mtentiojKio dedicate a road Mr Cohen contended that the onus was oil the defendants to prove that they had a Mgjt-of-way between the two points. His Honor— lt may bo law, but I don't think so. The Court then adjourned till Bpm Ou the Court resuming, Mr Cohen continued, ins address. He said that very iittl© would obstruct the intention to 'dedicate, ami quoted, numerous cases. Tn referring to the facts, of the present case, he said that :uiy obstruction, that app<ared on the gaund must appear to the • onrt to he -in < Wiiietion to the iiitcu ion to dedicate, He said there were on the Ingentre Street side, three rails which were physical obstructions. His Honor maintained that the obstruction must appear so as to prevent anvhodv passing through. • 3 Mr Cohen— "Your Honor has seen tuero. His Honor— "What are the gaps for?" Mr Cohen contended that the gaps siirU a A t rm A Ssion to cro^- He contended that Mr O'Leary's evidence was more trustworthy than the others'. Mr Webb had pit a gate in in the last 10 years, but praor to that, the path was distinct on the Aima .Koad eide, while it was not on Ihe Ingestre Street side. Mr Cohen said if his iionor made an order defining a right-of-way vested m the Borough Council, the Club would not be able to%rect any more obstructions, hold more .race meetings than at present lend the racecourse for the next band contest, etc. His Honor said that he had nothing to causTd aUy I * convenlenoe that mght be Mr Cohen again referred to the -ntention to dedicate. His Honor— "But you're riding the intention toi dedicate to death." Mr Cohen, speaking' on the powers of trustees to dedicate, cited a case in England, m, whjch th© Lords considered -a road laid round a golf course could not be dedicated as it was incompatible with the powers of the trustees. He also cited the Grand Junction Canal 1 Company v Petty and other's. He submitted" that they had evidence (with; not a "tittle to controvert it), from /stidh experts as E s A. Campbell and R. . Webb, that it waeT dangerous to the people and to the horses for the public to cross. His Honor thought it needed no expert to know that. All knew that to get in front f o^ a hprsa was dangerous. It was a question of commonsenSe. The public had crossed the course for years and would still continue to do so if a. fit of economy had not struck the Jockey Club. Some argument as to the respective dangers run by people in crossing the Avenue

md the right of way over the course, -ook place between counsel and his Honor, dit the argument did not commend itself o his Honor. 1 Mr Cohen contended that the arknowi wiping of a right-of-way was incompatible with the trust. His Honor wanted some proof of this. Mr Cohen said Gonvillc and Alma Road ■.id gon? ahead abnormally and the caution was now serious. Mr Cohen qitcd fur- . her cases which showed that if there was t transitory route it was proof that there i vas no public right-of-way. As to inter•uution, he quoted Mr Justice Hardy, who ' eld that the erection of a, bar, although cople could get over it was sufficient ob- ■ Lrnction to a right-of-way. He cited anther case to prove that even though a airier could be pfot underneath it was «a ■ifficient obstruction/ Slir Cohen contend- • -i that the burden of proof was on the > 'of?ndants. Mr Hutchison, in reply, dealt with some •f the cases quoted by Mr Cohen and con--■nded that the facts in the present case ' v«re not similar to those of cases -f demonstrable interruption such a3 vere quoted on the other 'side. It . vas only necessary to instance cases i .the Old Land, where the cross'n.? ■' i right-of-ways brought "people :n: n contact , >ith stags or bulls, but these dangers had ; ') be run. Mr Hutchison contended that • he case of Campbell v Sutherland was the •oakest case that could be quoted by tho •ther sidn. On the Court resuming yesterday mornnsr, Mr Hutton said' the contention 'iat the erant han be^n invalid, h.id ■iken him by surprise, and lie "ould like a chance to investigate the natter, and to see if there was not some 'Wqiiont Act to validate tlie matter. His Honor granted a fortnight forcouni'l to investigate the matter.