SPECIAL LAW REPORTS.

Dominion, Volume 1, Issue 15, 12 October 1907, Page 6

SPECIAL LAW REPORTS.

APPEAL COUKT. A WAIKATO CASE. QUESTION OF PUBLIC ROADS. Their Honours "tho Chief Justico Robert Stout) and Justices mluams, Cooper, Chapman, and Button, took their seats at 10.30 a.m. yesterday. Argument was. heard in the case of tho Bank o{ New Zealand (appellant) v. the District Land Registrar at Auckland. (respondent). This was a motion that tho judgment of Mr., Justice Denniston on August 27, 1907, upon' his summons issued against tho Registrar, in , which the Bank'(as successors to the Assets Realisation Board) was plaintiff and tho Registrar was defendant, be reversed, and judgment entered m favour of tho appellant. Mr. Justice Denniston, in delivering the judgment appealed against, said inter alia: "Tho issue which it was understood was to bo tried on.the present evidence was whether, apart from the legal effect of tho deposit of tho plan of subdivision under section 107 of tho Land .Transfer Act, .1870,- thero was .proof of dedication of tho roads set out on tho plan. On that issue, I have formed a definito opinion. It is a pure question: of fact. What . I-have' to decide, is whether it has been proved on tho evidenco that there has boon, at any. timo .in tho history .of 'the Assots Realisation Board; or its predecessors in title, an intention to dedicate these roads or any of them to the public. The property is a large one—somo 25*000 acres. When it got into the hands of the/Auckland i Land Company, it was swampy, undrained, and uncultivated. Tlio object of the; Company was to drain and, improve it, and in timo to sell it in parcels. With that object it was, in 1881, surveyed and subdivided; into substantial areas. These subdivisions were rectangular, and were made by -ways or roads laid out 66ft. wide, on 'the surrey plan. Tho drains were led along one side of these, and .the land was enclosed in,to 'paddocks by fences alongside tho roads. These fences wore, carried across intersecting roads, and, in most instances, gates were placed at tho intersection. In 1882 plaintiffs lodged with the District Land Rogistrar. at .Auckland a plan which, .in August, 1881, was ac-' cepted and deposited in compliance with section 107 'of tho Land Transfer Act, .1870. In 1884 a block, in tho corner of the ■ estato, • having its own. frontages to public roads, was sold to ono Gtiuld. No other subdivision or part'of a subdivision was sold till 1901.' Except in so far as tho deposit of'the plan was a dedication, no formal dedication had beon mado, except ,of ono small piece of roadway, and the question to be decided is whothor .there- isevidence of an intention, any time.beforo 1900, to dedicate. Dedication is the giving up to the public'of all tho owners' rights over . the land. Tho acts relied on must bo acts only consistent with an intention, to dedicate. A number of. porsons have been called to prove that thoy havo used, or since used, the roads on this property without objection from tho owners, arid! without express permission.- Their evidence is, in my opinion,: very, vague and unsatisfactory;" ."Assuming," said His Honour, in conclusion, "that section 107 of tho Land Transfer. Act, 1870, does not mako tlm deposit of a 'plan in.itself a dedication to,tho public, then, in my opinion, none of tho strips of land mentioned are public roads, and I answer the issue accordingly;" By .consent of both parties the'proceedings wero removed to the Court of Appeal for the purposo of argument and • determination .of .the, following points of law:—(1) The question of law left unanswered by' Mr. Justice . Den T niston, viz.,-Is' the deposit,of a map under section • 107 of the., Land Transfer Act', 1870,, ipso facto, a dedication to the public of all roads shown upon it? (2[) Is tho justified in refusing to. register tho memorandum of transfer in question on tho ground that no'evidence has been adduced that subsection 2 of section' 2 of tho Public Works Amendment Act, 1905, ,has been complied with? .and (3), Is the Registrar justified in refusing to 1 rogistcr any memorandum of transfer of an allotment'or subdivision of land abutting,on a,-road 66ft. in width shown on a, plan of subdivision duly deposited in the Land Registry Office tit Auckland before October 20, 1900, until tho requirements of subsection 2 of , s'ection. 2 of tho Public Works ' Amendment Act, 1905,, have been complied witlf? Mr. Skerrott, K.C. (with him Mr. Hanna), appeared, for tho appellant,, aud Mr. Chapman, K.C. (with him Mr. Swarbuck)j' for'tho respondent./Mr. Skerrett (for appellant) contended 1 that tho ' transfer in- question did not comri within the provisions ofthe Public. Worgs Act 1900, nor did it come within the provisions of the Act of 1903,. because tho property, had been sold, before the. coming into force of that Act, Further, he contended that tho effect of the Amending Act of 1904 was to entitle the transfer to registration without either dedication or formation ofi the. roads. • Tho Act of 1905, he submitted, did not affect the matter because tho "requirement of formation was inapplicable'to roads which were not dedicated. "Therewas, ho considered,, satisfactory evidenco of an implied dedication, and that the mere deposit of tho plan and a sale under it amounted ipso facto to a dedication of the roads. Mr. Hanria followed on the same side. Mr. Chapman (for tho respondent) submitted (1) that, the effect of a deposit, made under the Land Transfer Act, of a plan was only to give right-of-way and not public .roads'; (2) that the consent of the public was necessary before a subject could vest a road in the King; (3) that' if the land were under mortgage, tho 'consent of the mortgagee was necessary and (4) that in the present case it was not" sufficient evidenco of a dedication,, that the evidence of acts of user by the public were met by acts of exclusion by the private owners. Mr. Swarbrick also addressed the Court. , , . ' ' His Honour tho Chief Justice intimated that the Court w'ould tako timo to consider its judgment. Tho Court adjourned until. 10.30 a.m. on Monday, when 1 argument will bo heard in the case of Guinness and Lo Cren, Ltd.v . William Quinn.