WANGANUI RACECOURSE.

Wanganui Herald, Volume XXXXV, Issue 13054, 23 April 1910, Page 2

WANGANUI RACECOURSE.

QUESTION OF RIGHT-OF-WAY

Alleged Trespass,

Club’s Appeal Upheld

In this case the point involved was one of alleged trespass on the. Wanganui racecourse. For many years a track had existed in a certain part of this course. A fence was erected across it by the chib, and the respondents, acting with other residents of the place, took exception to being blocked from using the path, and in order to make a practical protest, removed part of the, fence. The appellants were James Baton Watt, solicitor, Gifford Marshall, solicitor, and Allan Cameron, farmer, all of Wanganui, trustees of thb Wanganui Jockey Club v. Walter Henry Wilson, carrier, Elliott Hodgson, gardener, Walter Lyall, upholsterer, Charles James Halligan, plumber, Charles Ralph Leathcrland, mill hand, and Robert Ford Munro, blacksmith, all of Wanganui, The case was an appeal from the decision of Mr Justice Edwards, nonsuiting the appellants in a claim for damages for trespass against the respondents. In the case before the Supreme Court, the appellants claimed that on July 3rd, 1909, the respondents jointly and severally entered on part of the Town Reserve of Wanganui, then in possession of. and being the leaselold property of the appellants; and that, in so doing, they damaged the appellants’ fence to the extent of d£s; and further, that the respondents trespassed on 'he Wanganui racecourse. The appellants therefore claimed damages amounting t.* £9.

The respondents denied the trespass, and also that the appellants were lessees of the lacecourse. As-.a second defence, the' stated that any entry by them on the reserve or racecourse was in - exercise of a right-of-way across part of the reserve and racecourse, by a path extending from the Town Hall Road, near the township of Gonville, to the end of Ingestre Street, in the borough of Wanganui, and further, that the removal by them or any of them, on or about July 3i’d, of part of the fence which had been erected by the appellants on the boundary was for the purpose of removing an obstruction which had been placed by the appellants across the right-of-way; and that such removal was necessary for the purpose of exercising and preserving such right-of-way; and that in removing such part of the fence they committed no damage to the plaintiffs or to the property of the appellants. His Honor, in giving judgment, said; The lease upon which the plaintiffs rely, and the validity of which is in dispute, :s expressed to be granted to them as stewards of the Wanganui Jockey Club for the use and benefit of and as trustees for the Wanganui Jockey Club, and not for their own private and personal use. There can, therefore, in my opinion, be no doubt that the persons in possession of the racecourse are the stewards of the Wanganui Jockey Club, or the members of that.club. For the purpose of this case it matters not which. The plaintiffs are some, but not all of such persons. Their claim is based not upon possession of the stewards, but upon their office .as trustees. The plaintiffs must therefore fail in the action.

Tlie Chief Justice, in giving his judgment, said that the respondent, having admitted the possession of the plaintiffs, and it having been proved that they had entered on section 21, it was clear that at all events so far as that ■ section was concerned the plaintiffs were entitled to recover unless the affirmative plea—the second, defence—was approved, ot the plan was amended. The second defence set up that there was a'right-of-way across section 21 and the racecourse, and the alleged trespass was an entry on the land on which the right-of-way was. This affirmative defence lay on the defendants. If others than the appellants were owners that might necessitate an amendment in the lease hut if no amendment was made and none asked for, and no objection taken by the defendants to the lion-joinder of other plaintiffs, the plaintiffs could not, in his opinion, be nonsuited because there were other tenants in common in possession. The question therefore at issue was, il there were trespasses, and that was admitted, was there a right-of-way dedicated by the Crown or by the owners in fee since the issue of the Crown grant over the two. parcels of land. Even if there was no statute in New Zealand dealing with the subject, he was of opinion that the evidence was insufficient to prove any dedication.

dealing with the evidence and authorities, his Honor said;—“ The other point taken by the defendants’ counsel was ‘-hat as the court had only nonsuited the plaintiffs the proper course to pursue was to_ send the case for a new trial. All the evidence was taken in this case. This is not a case where a nonsuit -was given at the close of the plaintiffs’ case. Even if that had been done I do not know if there appeared as appears in this case a complete, answer to the plea of user, a new trial ought to be ordered. It is enough, however. to say that the evidence of the defence was heard, and therefore the Court must do as rule 5 of the Court of Appeal rules declares, namely, "The Court of Appeal shall have power to give any judgment and make any order which ought to have been made.” He was of opinion that judgment should be entered for the plaintiffs for Is damages in respect of trespass on section 21, and Is damages in respect of trespass on the racecourse, with costs in the Court beiow on the lowest scale,, with „€ls 15s for the second day of trial’ and £3 3s for second counsel, witnesses’ expenses, and disbursements, and with costs of the Appeal Court on the lowest scale, as from a distance.

Justices Williams and Chapman concurred with the judgment, of the Chief' Justice. which was accordingly entered. Mr Skerrett, K.C., with him Mr Hutton, appeared for the appellants, and Mr Hutchison and Mr Mackay for the respondents.