IN CHAMBERS.

Dominion, Volume 1, Issue 133, 28 February 1908, Page 5

IN CHAMBERS.

.His-.Honour Mr. Justice Button held a sitting in Chambers yesterday morning. ■Probate of the wills of tho fojlowing deceased persons was granted:—William Barrpwdale, Tripe, medical practitioner, of Wellington;'. AVilliam Feist, grocer, of Wellington Frederick Brougham Green, builder,' of Bulls;- Thomas Pascoe Bryant, farmer, of Ohariu; arid Aloysius Macdonald, bank, manager;" of Wellington.' In tho. last-mentioned caso,- the motion was that probato bo granted to the widow, and a petition was filed for tho administration of thej cstato under ihe Administration Amendment Act,of 1888, on the' ground that tho cstato was insolvent. All order-was niado as prayed, and tho cstato will be administered by the Official Assignee. •Letters of .administration' wero granted in respect of the Restate of William Gilbert Mouat, deceased, of Wellington. .' Tho-case', Fbilding Borough Council v. tho Fcilding Gas Company, Ltd., was mentioned. This is an action for. a decree declaring tho : agreement, between tho parties to bo ultra vires, and for an injunction to restrain the Coimcir from interfering with, tho streets in connection with tho gas mains. Mr. Von Haast said that ic had. been decided to stale a . special case, and His Honour made an order removing tho caso into tho Court of Appeal for. argument. ' Mr. Wilford applied to have a date fixed for tho hearing of tho appeal of Joe Geo against his conviction by Mr. W. G. Riddell, S.AI., in the recent pakapoo cases, but His Honour intimated that, as that -was tho last day of his term of office, it was impossible for him to givo a ,fixture, and tho application would have to bo mado at a later date, when Mr: Justico Cooper returned to Wellington..

Application was niado to His Honour to review tho report of tho Registrar /on the amount of commission to bo paid to tho trustees in the'estate and exccutors of tlio will,of tho lato Donald Manson, of Edkinvaie Park, Palmorst-oii North. Mr. Myers appeared on behalf of tlio trustees (Messrs. Ernest Bell and Hugh M'Kenzie), and in support of : tho Registrar's report, and Mr. Von' Haast for the beneficiaries under tho' •will, who' are, for tho most' part, School Boards m Scotland. .The total value of tho estate m New Zealand was £98,000, and tho amount, of commission allowed was; £2204 16s. 10d. ' The estate was adiiiitted to be difficult .to administer, 'and 'it was agreed that it. was .being welL and carefully administered. His Honour adopted tho Registrar's report, witli tho. exception' of ono item of £27 10s., whicli lie disallowed. His decision was made an order-of the Court, and it was directed that the, costs should como out of' tho estate

y ; - RESERVED. JUDGMENT. CLAIM FOR ROYALTY. Mr.;-.Justicb Chapman yesterday delivered reserved judgment in tho case Georgo Henry B.aylis, v, John Carroll, an action to recover £44. 55., being balance of royalties .or haulago dues of 6d. por cartload on 2369 loads of- -gravel hauled over land claimed by tho' plaintiff,-or in tho alternative a claim for trespass in using tho land without permission.- • i His Honour ' stated, inter alia, that the plaintiff was tho owner of a pieco of land situated botween Island Bay and Ohiro Bay, facing-'Cook Street. The defendant, at first with permission of plaintiff, and later, ill defiapce of him, carted gravel , from Ohiro Bay . over a portion of., tho land. Ho now claimed that there .was a public highway ; over, the portion as used by" him. In 1884 Messrs; Joseph and Wright, from whom plaintiff purchased the property in question, dedicated a highway through their land at Island Bay from tho Town, Belt to Hunter Street, and thence along . a line approximately'parallel with the sea to a point in or- close to Ohiro Bay. There was land on ■fch'e .'seaward side of the road which as dedicated varied, several' times- in width, suggesting, that it followed a line of track probably. not clearly - defined. To make' out. a case-of dedication the evidence, must, His Honour said, be of such a character that.it was:-proper to use it to impute to tho landowner an intention to dedicate the land permanently to. the public in contradistinction merely to .permitting the public to uso it by-tacit license. The most appropriate evidence of. such intention was the expenditure of-'public money on the road with tho active or tacit consent of the. land-owner. Having reviewed the/evidence, which was to tho'effect that prior to the date of occupation by .plaintiff, there was ; only intermittent usp of the track by tho public, and that, since that date carters who had used the deviation had paid for the right, His Honour found that it did not make out a case of dedication. With regard to the suggestion by the defence that the plaintiff had induced persons using the deviation "to pay for way leaves by representing that, the whole track as used as far as the gate leading into Ohiro Bay was on his land, the Court was of. opinion it was really immaterial, what length of the track belonged to plaintiff, and-that witnesses wero probably mistaken as.'to what was actually said.

: His Honour,' in conclusion, said that thore were two well-known classes of cases of the kind—ollo in which an inadvertent trespass had been committed, and the other in which the trespass had been wilful and flagrant. In -the first class the measure of damages was as suggested, viz., that as no injury was done to the land no damage was proved; ■in the second class a jury was justified in awarding vindictive damages by way of accentuating the right of a land-owner to have his property inviolate. The present case was, in the opinion of the Court, between the two oxtremes. It made no difference in the'case whether plaintiff's claim was upon a contract or for trespass.

The Court, after, making slight allowance for a'discrepancy in the accounts rendered, gave judgment for plaintiff for £44, with costs on the lowest scale, and witnesses' expenses and Mr. Weston appeared on behalf of plaintiff, and Mr. Young for the defendant.