LAW REPORTS.

Dominion, Volume 3, Issue 627, 2 October 1909, Page 12

LAW REPORTS.

» SUPREME COURT. . JUDGE SUGGESTS ARBITRATION. DISPUTED BOUNDARIES. ■,' : A dispute as to the boundaries of property was heard yesterday by Mr. Justice Chapman in the case of Albert Berry (letter-carrier) and his wife, Inez Evelyn Berry, versus Arthur Frederick Winisett, postal clerk.. Mr. F. G. Bolton appeared for plaintiffs, and Mr. T. W. Hislop for defendant..', ■'. = It was claimed that plaintiffs were: the owners of land in M'lntyre's Averfue.'nnd the defendant had unlawfully taken possession' of a piece of the land, varying in width from i to 5.15 links, extending from M'lntyre's Avenue, to. the Town Belt, for a (distance of 143 links. Defendant had withheld the land from plaintiffs, who claimed possession, \and, also .for, .£SO for.mesne profits' obtained by defendant. '■ : ' ,'" ! . ■'.;■' ■■■''..-"■ ' Mr. Bolton said that the question, was merely one; of survey. , A good deal of the morning had been taken up in discussing tho matter with a view to settlement.. \ . . .. r 'His Honour: Cannot this be settled? I shall .probably listen to a. good deal of- evidtneo: that I do not understand. .. Mn Bolton: The parties have endeavoured ■to settle it, ■ your Honour, but in vain. ' ■". His Honour: I do not mean a settlement in the way of compromise. I- should have thought that it was, purely- a question for the su'r-.' veyors, and tnere is a better tribunal than a-judge. Why. cannot it,be referred, to one of the chief authorities, to someone appointed by the Surveyor-General, or to one of the "authorities of the district? What will happen if plaintiffs get judgment for possession? Mt. Bolton explained that plaintiffs' hous-s encroached on another property, and plaintiffs required the wholo of l their land if the house was to be restored within its proper boundaries..'-; .Meantime, ",an. agreement had been made by plaintiffs with the owners of the adjoining property to the south that plaintiffs might oooupyth© land encroached upon during the lifetime of their house. : If an acknowledgment were, made by. defendant;, as to' plaintiffs' title, they would probably 'be disposed to meet him with regard 1 to the occupation of tho. ; piece of land upon .which he was now resident. The defendant's: surveyors asserted thatthere, might be encroachmont of tho eaves, but not of the building. The man , who originally owned tho acre put up both the house of the'. plaintiffs and the house of the'.defendant.'- ' ''■ '•■ . ■;■■■■■■.•■'••..-■ ' His'.'Honour :i Did he aetuallj; put.-them into possession , . under'"those physical> boundaries which 'theVuse .now. ,'. "-'.. ~: ".' ; •'. . '.•' lit. Hislop': He possession,'and he gav* us- a certificate of title supposed to correspond with, our possession. ; . .Our. actual qcoupation.V'was of. more land than,tho certi-'. ficate shows. ;■ , , ,-,

Later, when the ■ evidence'of surveyorsi was 1 being heardj the-judge again asked if there was no possibility of settlement. Neighbours find Some solution to a hiattcr such as this, said his Honour. A judgment being entered would leave-one of. the • parties. very f uncomfortable, -and the ,other not: particularly '■'comfortable. Surely there was some way in. i which the dispute could,be adjusted.. :, . Mr. Bolton: We:havo ; d<sno.our best. to', arrive at an amicable settlement, and havo failed.- ]■-, - ■'.-• '.": : - ' ..'■ ■/.:„■':" His Honour: Cannot you' get some surveyor \to settle it for'you: or. to make some,suggestion'about it?'lt .has to be'settled sooner or later.- If you get a judgment, it seems (o bo only one etop;: there will be difficulties, in carrying it out. .''..' ' . ; ..■:.■•;'"■ , •"'■'' -, ' •; 'Mr;' Bolton: Tho Land Transfer Department, ought to'.'adjust it,-.because they: are-con-cerned from, the "standpoint-/-of the -insurance ,furid,': but .we'cannot'force thom to consider it. • His Horiobr; I"shairhave to give a , decision, but it is not adecision.on'fact.or on.lawJ ; It is partly a technical qucstibiii and partly a historical■ question.- "lhero, are none of ; : the. ordinary methods of ensuring,that it shall be a' torrect'-decision,. and it-is' certain' to\ cause' dissatisfaction, whichever way I decide. ,;i : : Mr: Bolton said that'.defendants-wm.in-pos-session'of a largor amount.of plaintiffs' land than they hold ofhii;.,- :"■''i-'liU '-''■■'■■• ''% ■ His 'Honour again•irecommeridAd!the parties' to •' rosorA !, to: wbltratjoiug Tto, jmißht,' not, be, able to worltrbut'theip.rlogal: rights,, but theywould- be,, ablo adjust.something!';- :■; They should ask the Lnnil Trtnsfec Office'jto , bear some of tho,cost, seeing-that the.'.mattor .was one which 1 would -probably, causo ;trouble in tho futureH■•-.■'.. : ; ',- f--: , ~'."<v ; .H-'!'. '.■;..'■■'■'':•'.''! Mr. Hislopi.l havehad a-yery bad expen-, onto with the Land Transfer. Department. His Honours I had.a'yery citonsive .surycy madp jn-Dunedin. It cost some hundreds of: pounds, and they paid' for it., It; was connect?* ed willi boundaries of premisba on-tho east , sido of Princes Street. ~ Their;.oVn counsel,; Mr. Chapman, , and one of- their, own ; Etaff, should endeavour to arrive ,at a';settlement. It' you apply to the Department, asking them: to bear part of tho cost, and say -that I roenmmended: it; they will very likely agree, to it.' I thiiik it'would ;be.ia.fair .thing-for. tho. 'Department, to r pay'.'tho cd>t of the arbitrator., •but I do not think' it would ,, be.riglit tb.ex- : poet'them , to the: costs'; oMho-parties. :-r ' On the-understanding' that the matter-should bo plnctil in' tho. hands of an ; arbitrator. to. docido what was if air to the parties,''further hearingof the case was adjourned sine'die.,