LAW REPORTS.

Dominion, Volume 3, Issue 785, 7 April 1910, Page 9

LAW REPORTS.

COURT OF APPEAL

PATH THROUGH A RACECOURSE,

DO WANGANUI PEOPLE •'"TRESPASS"?' ' '

A case, brought with a view to determining the rights of the Wanganui Jockey Club to.prevent a track across the racecourse from being used by the public was argued in the Court of Appeal yesterday, before the Chief Justice (Sir Robert Stout), Mr. Justice Williams, and Jlr. Justico Chapman.

The appellants-were James Paton Watt, solicitor, Clifford Marshall, solicitor, and Allan Cameron, farmer, all of Wanganui, as trustees of the Wanganui Jockey Club, and. the respondents were Walter Hemy Wilson, carrier, Elliot Hodgson, gardener, Walter Lyall, upholsterer,. Charles James Halligan, plumber, Charles Ralph Leatherland, mill-hand, and Robert Ford Munro, blacksmith, all of Wangauui.

■Mr. C! !'• Skerrett, IC.C., with him Mr. C. C. Huttdri (of Wanganui), ■ appeared for the appellants,'and Mr. George Hutchison and Mx\ C, E. Mackay (both of Wanganui) for .tho respondents. The appeal was from a judgment of Mr. Justice Edwards, delivered on November 19 last. An action for trespass' brought by the appellants as plaintiffs'had been heard in the Supremo Court at Wanganui on September 22 and 23.

Flaintiffs, in their statement of claim, alleged that, on July 3, the defendants, jointly and severally, entered upon Section 21 of the Town Reserve of Wangauui, then the'leasehold property of tho plaintiffs, and damaged the plaintiffs' fence to the, extent of.ifio. A second allegation was that they trespassed upon the section, and a.third statement was. that .they trespassed upon the" property known as the. Waiiganui racecourse, then the leasehold property of tho -plaintiffs.-; The claim was for ,£9, in respect of tho alleged trespass and damage. The statement of defence denied that trespass, or damage had occurred. The defendants also denied that the racecourse was tho leasehold property of the plaintiffs. As a seebnd defence, they stated that any entry by them upon| part of Section 21 or tho adjoining land known as tho Wanganui racecourse was in exorcise of .a' right-of-way across the section and the racecourse, by a path extendingfrom the Town Belt Itoad near the township of Gonville to the end of Ingestre Street in the borough of' Wanganui. They state! further that the removal of part of tho fence erected by the plaintiffs oh the boundary of Section 21 was for the purposo.of removing an obstruction-which had been placed by the plaintiffs across the. right-of-way, and that the removal of the obstruction' was necessary for tho purpose of exercising and' preserving the right-of-way. In so removing part of tho fence, they claimed that they committed no .damage to any of the plaintiffs' property. ■ When giving judgment, in the case, Mr., Justico Edwards had remarked that the plaintiffs' sued as trustees of tho Wanganui Jockey Club. The defendants had denied that the raoecourse - was iu tho possession of the plaintiffs, or that it was their' leasehold . property; They' justified their acts as being in exercise of ajpublic right to passago over'the racecourse. At the trial, the plaintiffs had relied mainly upon possession, but they had also endeavoured to prove title. His Honour did riot think ii 1 either necessary ori expedient .to attempt to determino whether or'not the plaintiffs had proved title. That question involved tho considcraion of many intricate points of Ipw, and, even if it were determined in tho plaintiffs' favour, it would not entitle th'em to judgmont in the action. Nor did hiS Honour find it necessary to determino whether or not - the defendants had established a public right .to passage , across, the racfcourse. ' It was certain that, for over half a century,' the public had until recently ■ passed .unchallenged oyer the lond in question, but ..whether tho attendant'circumstances we're'siich as toVestablish the public right'relied upon mifjht depend upon circumstances into which his Honour did not find it necessary to enter. The action for damages for trespass depended upon the actual pdssession of tho plaintiffs. The evidence showed that the plaintiffs • were not in possession 'of the racecourse. The leaso upon which the plaintiffs' relied, and the validity of which was in dispute, was 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." His Honour .wont on to say: "There can, therefore, in my opinion, be no doubt that the persons in possession of tho racecourse are the stewards, of tho Wanganui Jrickey Club, or tho members.of that club. Tho plaintiffs are some, hut not all, of those persons. ; Their claim is based, not upon the possession of, the stewards, but upon their office as trustees. They.must therefore-fail in the action." .

The plaintiffs wore, accordingly nonsuited in the Suprome ! Court, and costs were given' against "them " amounting to iBGI lis. .. •

Mr. Skerrett pointed out that the appeal was brought, because Mr. Justice Edwards ' had'■ dismissed the suit ' for trespass upon the-sole'and only ground of want of'parties. In counsel's opinion,' such a course of' action, since the passing of the Judicature Act, was wrong; Itc contended that it was the bounden duty of a learned judge to join, the ndcessary. parties, or to give an opportunity for the joining of tho'partes required to perfect the suit He contended, ■ however, that the parties tlien Wore the Supreme Court were Sufficient, and, after submitting, argument in support of that contention, ho would, if necessary, move that the parties should be joined by the Court of. Appeal,' which Court would then dispose of tho case. Mr. Hutchison pointed out that no land granted- for the purpose of publio utility had ever, been used as. a racecourse. Ho contended that portion of, tliis land was wrongly used as a racecourse. The Chief Justice: It has been used as a racecourse for 50 years. Are not you rather lato in objecting? Mr. Hutchison: A racecourse. is not for public utility. . Tho Chief Justioe: I don't think so, but it is difficult to say what people thought in those days. Mr. Justice Williams remarked that in the early days might have had few amusements, ana land used then as a jracecourso might havo been. fulfilling the purpos'o of public utility. The Chief Justice: Why should not they have a municipal, racecourse, just as they havo a municipal theatre? Some (people object to the theatre, saying it is debasing and immoral, and in tho same manner some people object to the racecourse'. You have a municipal theatre at Wangamii; why not then a municipal racecourse?

jlr. Hutchison: Well, wo have not got it, your Honour. That is the answer. (Laughter.) This is. not a municipal racecourse.. It was a contention in support of the respondents' enso that possession of the land was held by the trustees under the provincial ordinances, who, in turn, had leased to tlio trustees of the Jockey Club, that'they might use the land as a raceCourse on certain days. The hearing of argument was not concluded when tho Court rose.