COURT OF APPEAL.

Dominion, Volume 3, Issue 798, 22 April 1910, Page 4

COURT OF APPEAL.

WANGANUI^RACECOURSE:

THE ■PUBLIC! AS ,'' Judgment -'bi; f was given yesterd_aj'?in'the' ! das'e''brt)ught by /the Wangainujii Jockey,, Club.iyith a view J to : was any right tb;sr.event ';tlie;: : .'p,ublic from using. a track•'Vac'rQess:the--<'vWanganui racecourse. The<case'was' ; h'eard ■ by the Chief Justice (Sirßobert Stout), Mr. Justice .Williams,-.. and Mr. Justice Chapman. Tho appellants wero James /Paton Watt, solicitor,'Gjfford-Marshall; "solicitor, and Allan Cameron, farmer, all. ol Waiiganui, as ■ trustees of the Wanganui Jockey. Club, and the respondents were. Walter Henry Wilson, carrier, Elliot Hodgson, gardener, Walter Lyalji upholsterer, Charles James Halligahy''plumbery Charles Ralph Leatherland," mill-hand, and; Robert Ford Munro, blacksmith, allbfiWangaiiui. v Mr. C. P. Skerrett, K.C., with jiim Mr. C. C. Hutton (of Wanganui;, 'appeared for the appellants, and Mr. George Hutchison and Mr. C. • E. Mackay ■ (both of Wanganui) -for. the respondents. •■-, : ! '-..' : The appeal was) from a judgment of Sir.-Justice Edwards, delivered on November 19 .last.' An action for trespass brought by the appellants as plaintiffs -had been heard in the-Supretno Court at Wanganui on. September 22 and 23. -The trustees had claimed damages, alleging—(l) ithat tho defendants had Itrpspassod on Section 21 of the Town Ileserve, and on the racecourse, both of which were the , , leasehold property of the trustees;"( 2) that they had damaged a fence; The" defendants denied that the racecourse "'- was the leasehold property of the- Jockey; Club, and that, in using. the track,', they wero exercising a right-of-way over tho fsectaim and the racecourse.. After hearing ■ the. case, Mr. Justice Edwards .decided that; the persons iu possession of tho racecourse ;wero the stewards or-members ..of the .Wanganui Jpckey Club, i The plaintiffs were somo, but not all, of those persons. Their claim was based, not upon tlie :possession 'of' the'stewards,--, tut upon their office' as .trustees. - In giving Chief J.ustico said that .the appeal was from a decision nonsuiting the trustees on the ground that other persons,: not joined, were interested with.them.iu the land on which it was alleged that trespasses had been committed. The question in the caso was: If there were entries on tjhb'-land,-and these we^e.admitted, was there a public right-of -\yay ? The other questions raised attacking the',-title'.'to possession of the plaintiffs ~were irrelevant. . A stranger could not enter the land in possessioa of.another, and justify the entry simply Oμ the ground that, there was a flaw in the possessor's title! Ho must 6et up some title in himsblf. Tho allegation, therefore, that the Ordinanpe of- the Provincial Council of Wellington under; which the trustees of the racecourse'had been appointed, and the racecourse been granted to them, was ultra vires, was irrelevant, tuid so also'. was the attack 'on the conveyance. Tho 'trustees being in possession could not be displaced save by. someono having title, or by the. defendants, if they had entered un- : dor ; the leave and license of the true qwner. No assertion of this: kind had been.made. The question was narrowed to the. following: Was there' a public right-of-way dedicated by the Crown, or by. the owners in fee since-the issue of the Crown grant, over these two parcels of land? Even if there was no statute in New Zealand dealing with the subject, his Honour was of opinion that "the evidence j was insufficient to prove any dedication. The land up to ■1861 was pnrt of the Town Bolt of'the ' town of Wanganui. Even when the grant of the Town Belt was issued on Juno •3, 1861, the part afterwards conveyed by the' Superintendent of Wellington to the trustees was marked on the plan in the grant as "racecourse/ . There were many tracks used, the land was unfenced, and people travelled all over it. -There was no evidence of dedication in the case;; at all, and it , was 1 sought to presume I a'- dedication from tisor, and that user/not an , uninterrupted one. Tliore, were, .however, statutory provisions-' (cited) which completely answered the claim of user as proving dedication. Another point -taken htf defendants'-qoUnsel was' that as the Court bad only nonsuited the plaintiffs, the proper'-ennrso to pursue was to solid the case for a uew trial.

I All tha evidence had been taken in the case, ■ and it was not one in which a i nonsuit had been givon at the close of ■tho plaintiffs' case. Even if that had been donOj Jiis Honour would not say that, if.thsro aripeared,. as appeared in ;this case, a complote answer to tho jplea 'of user, a: new trial ought to bo : ordered. , : Only nominal damages wore asked, and his Honour was of• opinion that judgment should bo , entered for tho trustees for Is. damages in respect of trespass on Section 21, and Is. damages in respect of trespass on, tho race- , course proper, with costs in the Court ibelowon the lowest scale,' with £15,155. ifor second day of trial, and £3 3s. for 'second counsel, witnesses' expenses, and disbursements, and with costs of the Appeal Court on the lowest scale as from a distance. . :

Mr. Justice' Williams and Mr; Justice Chapman read judgments, in which similar opinion's wore! expressed.

GISBORNE HARBOUR- LEASES.

; The' Court of Appeal gave its decision yestorday on the appeal brought by 'the Gisborne Harbour Board in respect of portion of a; judgment delivered in the Supreme Court at Gisborne by Mr. Justice Sim, on November 24 last. . Tho respondents were Frank Brayton Barker and Perciyal Barker, sheepfarmers, of Gisborrio.

■ Counsel at the hearing of the appeal, ,on Friday, April 15, were: Mr. T. AV. Stringer, K.C. (of Christchurch), with him Mr.'M.. Myers, for the Harbour Board; Mr. C. P.' Skerrett, K.C, with hini Mr. G. Stock (of Gisborne), for the' respondents. : . , The appeal was allowed, the question of .cost's being adjourned for a fortnight.