SUPREME COURT—CIVIL SITTINGS.

Wellington Independent, Volume XXII, Issue 2569, 10 September 1867, Page 4

SUPREME COURT— CIVIL SITTINGS.

Monpay, 9th Sbmbmbbb, 1867. ' (Before Mr Justice" Johnston;) • >' Thk Court opened at 10 o'clock',' and a common jury hnving been empannelod, the 'first case called on was that of • . JOHN CUDBX V. NATHANIEL TAXBNTINB. which was an action brought to ; try the right of road through a section of land at the flutt;. Mr Brandon appeared for the plaintiff} and Mr Borlase for the defendant. Mr Borlaso, in opening the case, said that the aotion had been brought by Cudby against Valentine for trespass and that it was defended in order to try the right of his client to use an . j old road laid out by the New Zealand Company \ from the sea beach, through section No 20, a portion of which up to the present Hutt road was owned by Cudby. Tim section was a large one; that portion of it immediately alongside the Hutt road belonged to Cudby, and the back portion waß in the occupation of Valentine. The old line of road had been laid down through Cudby's portion, and the alleged trespass consisted in the defendant having for years made use of it in passing to and from the land belonging to himself. Until recently Cudby had not contested his right to do so, but 'latterly he had, and now he brought the present action for trespass, Valentine defending it on tho plea that the right of way had been laid down by tho New Zealand Company, and that it had been always open to the occupiers of the bnok portion of the section. He then proceeded to call evidence to prove the case on the part of the dofendant. Nathaniel Valentine, licensed victualler, residing at the Hutt, was the defendant in the case, and occupied tho back portion of section No' 20, at the Lower Hutt ; the portion bordering th.c Hutt Road, — that was to say the N.E. corner of the section — was occupied by Cudby. Witness held his portion under a lease from Mr Edwin Jackson, but his title was a native one, as he had paid rent to certain aboriginal natives since January 16th 1865. [Leases put in.] An old road runs through the section, for which witness paid rent, through Cudby's portion, to the Hutt road, and witness had used. it ever since he had occupied the land without interruption till April last, when Cudby prevented his doing so. Previous occupiers of the same land had also always been in the habit of using the road without molestation. Until lately the line of road had been fenced in, but a short time ago the fa iicing had been removed by Cudby. Mr David Lewis, at, present Lands Commismissioner for the New Zealand Company, said the mimes of previous holders of the office were Mr Fox and Mr Dillon Bell. Witness had, however, been twenty years in the New Zealand Company's Land Office, and was acquainted with all its interior economy. The first survey of land at the Lower Hutt had been made by Captain Smith. [Original selection map produced.] Crown Grants had been prepared for tho New i Zealand Company, and subsequently a commis* sion was nppoineed to issue Crown Grants to the individual purchasers from the Company. [Map , with claims of purchasers produced.] On the old maps and plans of the sections of land at the Lower Hutt thero was traced out a line of road from the beach through section 20. Cross-examined by Mr Brandon : Between sections 20 and 21 Lower Hutt there is no roud laid down on the maps. George Swainson, surveyor, formerly residing at the Hutt, had been fifteen years in the Survey Department ; knew section 20 in the Lower Hutt, which belonged to certain Petoni natives to whom it had been conveyed by deed in 18-48 by Colonel M'Clevcrty, on behalt of her Majesty ; the whole of the section had subsequently been relinquished by the Petoni nativoa to the Waiwetu natives. [Deed and plan produced.] In a plan accompanying the deed was shown a straight line, a uhuiu wide, vm xtirougn tuo Hutfc valley, and I passing between sections 20 and 21 ; the line had been used by tho surveyors, and was originally intended to be tho main road up the valley, it having been used by the public prior to the cutting of the present line of road in 1844. Cross-examined by Mr Brandon : Witness did not know whether former occupiers of that portion of section 20, now occupied by Valentine, had been in the habit of using the line of road which cut through the portion of the lection owned by Cudby. I William Roe, a farmer at Waiwetu, and resident for five and twenty years at the Hutt, deposed to the fact of the road between sections 20 and 21 — particularly that part by the land now occupied by Cudby — having been used as a public thoroughfare, so far as White's line, by most of the residents in the valley, who passed along it on foot, on horseback, and in carts. By tho Court : The first person witness had over known interrupted when travelling the road was Mr Valentine, who had been stopped a few months ago by Cudby. By Mr Brandon : In the early days section 20 had been occupied by Mnories, afterward* by ft man named Robinson, " who belonged to a Maori woman," and more latterly by a Mr Rumble. 1 Witness had on several occasions himself travelled the lino of road cut through the section. At the suggestion of his Honor, a sketch was drawn and produced of section No 20, showing Cudby's portion, Valentine's portion, and the j position of the right of way in dispute between the tyro. Thia sketch was shown to the witness, who pointed out on it that in the time of former 'occupants of tho section, persons in the Hutt wishing to go to White's line from the present Hutt road, were in the habit- of going over a line in that portion occupied by Cudby for the purpose of procuring firewood at the back of the section. His Honor considered that the Government maps produced in Court only showed that a surveyors' lino had been cut through section 20, and that thero was no proof of the existence of a public thoroughfare through tho land. The learned counsel for tho defence argued that it had been established that his client's predecessors in tho occupation of section No 20 had been in the habit of using the right of way through plaintiff's property for several years. Mr Brandon contended that it had not been shown indisputably that the lino had been out through the lower portion of section 20. The witness Roe was recalled, and in answer to the Court, said that he had helped to cut the surveyor's lino, which was pegged out to a width of fourteen feet, and that it did pass through tho portion of section 20, oocupied by Cudby. Robert Ditchen said he had for eighteen or twenty years resided at the Hutt, and knew fche road in dispute, which was exactly opposite his property. In the early part of his residence section No. 20 was owned by a Mr Bircham, and since that time tho Maoris had lived on it, and more recently Mr Robinson, Mr Valentine, Mr Hall, Mr Jackson, and by Mr Cudby. Tho only person ho had seen drive a cart alon& the right of wuy through the section was Mr Valentine, but all the occupants were in the habit of driving cattle, horses, and sheep to and fro between Valentine's land and the main road through Cudby's land. Before Cudby occupiod his portion of the land, it was the property of some Maoris who had lived there. By the Court : The piece of lan J about which the action has been brought, has, within the last twenty years, been is the occupation of tho natives. By Mr Borlase: In old times there was a little lane fi need in loading from the Hutt main road j through Cudby's land on to Valentine's, but within tho present year Mr Oudby has pulled down one of the fences and taken in the lane as part of .'his portion of set tion 20. , By the Court t This little lane was ÜBed by the Maoris, by Mr Jackson, by Mr Hall, and by Mr Robinson, as p thoroughfare.

By Mr Brandon : Mr Cudby- stopped Mr Hall using the lane, which wat never a road common to everyone. Ohftrfe* EeyV, ft carpenter; who had for eight and twenty years resided at the Hutt, knew the right of way in dispute,*? Inch he- -had helped to lay out. The original intention was to lay out a main road from the beach up the vulley,.Bixty-Bix, " feet wide, but after, the line was cut, the road was not made. He knew the land occupied by Cudbyj and that occupied by Valentine, and' had known the right of way to have been used as a public thoroughfare for many years ; he had used ; it himself for more than twenty years, and had for the same period scan everybody : who wanted to go from -the present Hutt road towurds White's line pass up the lane. Cross-examined by Mr Brardon : Witness knew the country well, and remembex'ed that many persons had occupied the land aow in Valentine's occupation between his occupation and that of the Maoris. The line cut by the surveyors was 1 not subsequently made a main road. William Hunter, a laborer, who had resided at the Hutt since 1852, knew that Mr Valentine wa3 in possession of a portion of section No 20, and that the nearest way to a certain portion of the Hutt Road was down a narrow fenced line which passed by Cudby's portion of the same section. He had often used the line himself when passing from the road towards White's line, and knew that both Maoriß and Europeans frequently did so. He had been Btopped by Cudby in the early part of the current year, and told not to pass up the line as it was a portion of his property. Cross-examined by Mr Brandon : Witness was not aware that previous to his being stopped by Cudby there ever had been any question as to the right of persons travelling up and down the line. When the natives were owners of the section now jointly occupied by Valentine and Cudby, they used the lino without interruption ; so he believed did Mr Bumble and Mr Jackson. This closed the case for the defendant. Mr Brandon did not consider that anything had been adduced to which he need reply. It had not been denied that Valentine owned a portion of section 20, and Cudby another, neither was it attempted to show that the trespass complained of had not existed, in fact, so far from such being the case, it had been confesHed that the defendant had used the supposed right of way on plaintiff's land, and tho only evidence in the matter had been adduced with an attemp to show that prior occupants to Valentino had for twenty yeara done so without molestation. This was what it had been attempted to prove, and if it had been proved the plaintiff would have been out of court. But, he argued that it had net been proved. Th« Maoris who had been said to use the line in dispute up till the section was divided, held the land in common ; therefore those at the back of the section by passing through the front portion I weroonly moving through thoir own land, and could not consequently be said to make use of any particular line of way. Again, Bumble owned the whole section, so the same argument applied in his case, but when the section had been divided, and Hall, Valentine's ponulfimate predecessor, commenced the same practice, it had been shown tbat Cudby had stopped him. His Honor did nob consider that the defence had proved an uuintorrupted user as a right for twenty years, and thought there was no case to go to a jury. The issues appeared to him most simple. They were— lst. Was the defendant at the times of the trespass in possession of the land mentioned in the pleas? That he was had not been disputed. (2nd.) Did the occnpier of Buoh land for twenty years before the suit, enjoy as of right and without interruption a way on foot and with cattle from a public highway commonly called the Hutb Road, over the land of the plaintiff? This was tho whole essence of the case, and if it were shown they had I so enjoyed the right, the defendant was entitled to a verdict, but it hud not boon shown. Mr Borlase contended that he had proved that the Maoris, Bumble, Hall, and Kobinson had all used the line of road. His Honor replied that the Maoris owned the whole section in common between them, and that therefore where there was an unity of possession there could bo no question of right of w ly. Mr Brandon said that he would prove by evidence that Jackson had paid Cudby rent for the piece of land in dispute, and hud been authorised not to give persons leasing from him right to use it. He then called the plaintiff John Cudby, who said that he rented a portion of section Ho. 20 from the natives, and that Mr Valentine was in possession of another portion of the some section. Edwin Jackson once occupied Valentine's piece of lancl for several years, and used to cross witness' land, nob as a right, but had been permitted to do do so on payment of fifty shillings a year, and tho right of any timber on his land. Until Jackson so arranged, no oae had ever used the road, and when arrangements between Jackson and Valentine for the lease of tho land were pending, witness told Jackson to take care and inform Valentine that nobody would be allowed to use the right of road. Valentine subsequently wanted witness to enter into a similar arrangement with him, but witness refused. Valentine then used the road, and injured the fence, and witness summonsed him to the Resident Magistrate's Court when the case was dismissed, the question of title being involved, and the matter thus beyond the jurisdiction of the Court. Cross-examined by Mr Boriase : Jackson used to pay me fifty shillings a year for the uae of the road, and let mo have the useless timber on his land. Ho only gave me fifty shillings once. Hall never paid anything, but never used tho road without permissionf Edwin Jackson, of the Hutt had held under lease a portion of section No 20, Lower Hutt, which he had subsequently leased to Mr Valentine. During his tenure cf the land, he hud never considered that he had a right to reach the main thoroughfare through Cudby's land, but it being nonrer for him, he had obtained permission from Cudby to use tho right of way. Witness had agreed to pay 50s a year, and some timber if he were allowed to use it, and exercised his right thus purchased until he sold out to Valentine. Cross-examined by Mr Borlaae : Witness had never mentioned to Valentino the agreement he had entered into with Cudby. Mi* Borlase could not, in the face of the evidence of tho last two witnesses, press the case any further. His Honor then submitted tho following issues to the jury. Ist. Was the defondant at the times of the alleged trespass possessed of the said land in the plea mentioned as therein alleged ? AnswerYes. 2nd. Did the occupiers of such land for twenty years before tho suit, enjoy as of right, and without interruption * way on foot and with cattle from a public highway, commonly called the Hutt road, over the land of tho plaintiff? Answer — No. 3rd. Wna eaoh of the alloged trespasses a use by tho defendant of the said way ? Answer — Yes. 4th. To what damage, if any, is the plaintiff entitled ? Damages, 20s. The jury thus returned a general verdict for the plaintiff with damages 20s. Hie Honor gave co9ts in favor of the plaintiff. The Court then adjourned at 6.40, until 10 o'clock this morning, when the only case for trial will be that of Morton v. Brown.