LAW REPORTS.

Dominion, Volume 3, Issue 873, 20 July 1910, Page 11

LAW REPORTS.

ENCROACHMENT? CITY STREET LINE'S WIDTH. COUNCIL'S APPEAL. The propor width of Wingticld Street, a short street. leading out of Molesworth Street, Wellington, was ,the subject of argument in the Court of Appeal yesterdny afternoon. Justices William's, Edwards, Cooper, and Chapman were, on the bench. 'L'ho City Corporation, as plaintiffs in tho original proceedings, had claimed that a strip of laud; 42.42 links by 4.7 liuks, being portion of Wingrield Street, had benti wrongfully included in Mrs. Corich's certificate of title as owner of part of section 634, abutting on Winglicld Street. The land included in the certificate of title was fenced as being occupied by Mrs. Corich. She had beeh requested by- tho corporation to admit that the strip of land in dispute was pr-rt of Wingfield. Street, but had refusoi! to do so. She had also refused to deliver up possession of this land, and she claimed title to it. For Italia Corich, as defendant, in the Supreme Court, it was. contended that tho land in dispute was rightfully included in the certificate of title, and correctly fenced. She claimed that when the land in dispute was brought under' the provisions of tho Land Transfer Act, 1885, it was not, and never had been, part of a public highway. She also relied on tho Statute of Limitations, as the corporation did not bring the action -within 20 years of the time when its right to the land accrued, if it had aiiy such right. She claimed title to the whole of the land included in the certificate of title, haying purchased it for valuable consideration, after it had been brought under the Land Transfer Act, and having had no notice of tlio allegation of tho plaintifts. The laud being mortgaged to the Government Insurance ■ Department for £650, J. H. Richardson, Government insurance Commissioner, was joined as a'defendant. In addition to the(foregoing statements, he relied on his registered mortgage under the ' Lantf Transfer Act, 1908, as against the corporation's claim. The District Land .Registrar (l'ldwiu Bainford) was also joined as a defendant. Tho action was tried on March 10, 1910, and the Chief Justice, in his judgment, delivered on .March 22, after going into the history of the matter from tho survey of Uie ground in 1858, and Hhmving that encroachment began in 1858 or .'1859, and had remained until the present time, stated' that it was not now disputed' that "Wingfield Street was a public street. The question, therefore, was:' Is Wingfield Street deemed to he the land left between the fences, or is it deemed to be; the picco of land that was set apart as a street by. the owners of sections 534 and 535 when those sections were subdivided and sold? He considered that the unauthorised trespass on the piece of land offered for a street could not interfere with the owners' offer of the landj nor with the acceptance of that offer. When tho corporation was accepting Y/mgfie'ld Street, it must be presumed that they wero accepting that which had been called ■ Wingfield Street, and was known by that name to the purchasers of land fronting the street. . Even if the dedication was not complete until 1868 (after tho Municipal Co:-. porations Act. came into force), still, the dedication must have reference to what was offered to be dedicateu, and that was Wingfield Street, about 30H. wide and part of which had been fenced in by the owners of the lots oi Section 534. He was • therefore of opinion that the corporation was entitled to the land mentioned as part: of tho street, and judgment was accordingly given with posts. • His Honour also mentioned, in the oourso_ of his judgment, that, as Mrs. Corich had a title . under tho Land Transfer Act, .she would,- if deprived of hor land, be entitled to compensation. • It 'was against this judgment that appeal was. made by Italia Corich, the Government Insurance Commissioner, and the District Land Registrar. In the Appeal Court yesterday, Mrs. Coric'h and tho Government Insurance Commissioner were represented by Mr. R C Kirk; the District Land Registrar byiMr.'O. P. Skerrett, K.C., and the respondent corporation by Mr. J. O'Shea, City Solicitor. Argument had not concluded when the Court adjourned until this morning. ' FREICHTS ON A PRIVATE LINE. FLAX CONTRACT CASE. Argument in the Taupo flaxmilling case waa concluded yesterday in the Court of Appeal before the Chief Justice (Sir Robert Stout), and Justices Williams and Chapman. The appellants (who were represented by Mr. C. P. Skerrett, K.C., and Mr. J. L. Stout) were the Taupo Totara Timber Company, Ltd., and the Wellington Industrial- Development Company, Ltd., and the respondents were Micliael Lynn and Sebastian George Poppelwoll, flaxniillers (represented by Mr. J. R. Reed, of Auckland). In the previous proceedings in tho Supreme Court, Mr. Justice Edwards had girar.judgment for the two limited companies on their claim for flax royalties, etc., and had awarded Lynn and Poppelwell £G75 damages on their countar-claim for loss of the opportunity of milling flax from adjacent Native land,-, and for stoppage of their mill, such loss and stoppage being concerned with the railage of flax and fibre on tho railway owned by the timber company.; It was against this judgment in the counter-claim that appeal was made. Argument for the appellants was heard on Monday. Mv. Reed, who,concluded his argument yesterday, dealt at considerable length' with the terms of the agreement between the parties and contended that Lynn and Poppelwoll were entitled to expect that the Native flax would ho carried on the railway at the same rates ae.tho green flax from the appellants' land. He submitted that his clients tendered at a higher for the companies' 'flax becaiise they had boon led by the companies' advertisement te believe that they could get tho Native flax. He also dealt with the alleged delay on the part of the appellants in railing fibre from the mill, thus causing a blockage, which compelled the respondents te close the mill. Tho Court reserved its decision. •