CIVIL SITTING

Dominion, Volume 3, Issue 897, 17 August 1910, Page 7

CIVIL SITTING

TOWN PROPERTY AT FOXTON. DISPUTED TITLE. The-hearing of a case affecting the ownership of a piece of land in the town of Foxton was begun in tho Supremo Court yesterday by Mr. Justice Cooper. The- plaintiffs arc Frederick Spencer Easton, farmer, of Foxton, and Barbara Ellen . Austin, of Foxton, executrix of the- will of the lato Herbert Austin, of Foston, flaxmiller, and the defendant is John .Rainbow Stansell, of Shannon, auctioneer.' ■ According to the statement of claim, the defendant in August, 1900, was the owner of Whyto's Hotel and premises at Foxton, including an allotment in To Awahou Block, measuring 1 acre 1 rood '& perches. The whole of tliu property was leased to Thomas Hiivwood. in terms of H' deed of lease dated April 2, 1901, and made between Andrew James Whyto and John Russell Whyte of the first' part, Arthur .Clement Stansell of the 'second."'putt, and Thomas Haywood of the third part. On August 31, 1906, (he defendant, J. E. Stansell, entered into n contract in writing with the plaintiff Easton and the lals Herbert Austin for the sale,to'them of the hotel and premises for jeiiOflU, subject to the lease to Haywood. The. purchasers took possession, and the. whole property is now in , - the possession of-the'plaintiffs, but in the conveyance, of sale, dated October .31, 1908, the small piece of land in tho ■Awahou Block was nut mentioned, the omission being due to a mistake on tho part of the signatories on each side. Tho purchase money was paid in full, and the purchasers were put in possession of the whole property by the defendant, subject to the lease to Haywood. It was-also nlleged in the statement of claim that the defendant refused to transfer the" allotment of the .Te-Awn-hoa Block to the plaintiffs. The plaintiffs, therefore, claimed ' that the agreement of- August-.31, 11)06, should be amended by including the said parcel of land, and that the defendant should be directed to execute a transfer.of the land to the plaintiffs. In an amended statement, the. plaintiffs made additional claims for J2OO general damages and in the event of defendant failing to complete the contract. The statement -T>f defence nlleged that if the allotment-in question formed rportion of the "hotel and premises," it was only such by virtue of a lease from A. C. Stansell, defendant's predec*«or in title, to Thomas Haywood, which lease included-the said land. Defendant admitted the agreement to sell to Easton and Austin, bin; denied that, ho agreed therein, or otherwise, to sell the allotment in the Te Awahon Block. He also .denied .'that he put them in possession of the allotment. If they took possession, they did so as purchasers of. tho ; lease to Thomas Haywood. •He denied that they had been, or were now, in possession cf the allotment, but said that if they wove, such possession was referable to the leaeo from A. C. Stansell to Haywood. As. a second • defence, he denied that he had mado any agreement relating to the matter, except the one admitted above, but.if lie had, it was not actionable by reason of noncompliance with section 4 of.the Statute of Frauds (29 Charles 11, Chap. 3). As n third defence, he submitted that the plaintiffs, by , their laches, bad precluded themselves from taking this action, as the defendant, in ignorauco of any claim by them, had on March 3, 1909, mortgaged tho /and in dispute to the National • Bank of New Zealand, Limited, for .£SOO. . . ' ; "

Mr. C. H. Treadwell appeared for the nlointiffs arid Mr. A. A. S. Jlenteath' for the defendants. Several witnesses were called, nnd tliu hearing had not concluded -when the Court adjourned until this morning;

SETTING UP A RIVER BOARD. A WAIIIABAPA CASE. .' The question whether the Kahutara ■ ltiver board, in the Lower Wairarapa, . i>. validly constituted was deuidud iu !; tlio.. affirmative ia a judgment"tlelivefed yes- : t'erday by Mr. Justice Cooper. .•; ii'he case camo befoi^Ji^Honpur^asl. , week as ah appeal I'roin a decision.' of JBIr. Turton, formerly stipendiary magistrate in the Wairarapa. The board'sued Arthur.Eobinson, iii'.lthe .Magistrates' Court af.li'euthcrsto'ii,' for Vd.V rates, and .judgment was given lor the defendant on the ground that the board, was not a validly constituted body., , ' ' At the hearing of tho case on appeal Ifr. M. Myers and Mr. J.. W,. Card represented the appellant, while Mr. C. V. .Skerrett, K.C., and Mr. D. 1C Logan appeared for the • respondent,. Kobinsou. Arguaient turned on tho questions whether the district, concerned was such as . was contemplated in the .River Boards Act, and" whether tho Governor's Pro- ' clamation overcame that difficulty, the magistrate's judgment having involved a negative answer to each'.of these questions. .. ... ,'-'■' ■".-..■ :

Mr. Justice Cooper, in'his judgment, referred to Section 6 of the Eiver Boards Act, which gives' tho Governor power to "declare any part of the' colony to be nuistricl. under this Act." The section, did not state that tho district must be bounded, or .intersected by a river, but :there were conditions under which aloni; a district could be so proclaimed by the Governor. There must to a petition from ratepayers, and''-the petition'.. must describe'tho boundaries showing tho presence of "rivers," -and. must be publicly notified so that objections could be mad«. Provision was also mode for the Governor to. institute inquiries concerning the nature of the district. Sub-Section IS <,( Section 14 of the Act made the Governor's - proclamation conclusive evidence that, these conditions had been complied with. The board .'.was, therefore,-a duly constituted corporate body with rating powers. The publication of tho proclamation in the. Gazette was conclusive evidence , 'of its validity, and if the watercourse's in' the district were, not correctly described, any such mistake was cured by tho : Statute. He did not think the of Sub-Section 3 of ..Section M were ambiguous, but if .they were reasonably capable of two constructions, one of which would render the constitution of the.board open to attack, while the other would preserve it, the latter ought. to bo adopted. The board had been carrying out its functions for three years without disturbance.

Tho appeal was allowed with 7 guineas costs and Court fees, the magistrate's judgment to bo reversed and judgment to be entered in the Lower Court for tho 'ward . for .£ll 7s. 7d. and costs on the Magistrate's Court scale. Leave to anneal; was granted' on tho application of Mr. Skerrett. HAWK.E'S BAY STATION LEASE, ARBITRATION CLAUSE.''. " ' : Judgment was given yesterday by M>. Justice Cooper in the case ot Troutbeck and others v. Tanner, which was -heard by his Honour in Bunco last week ou an originating, 'summons , ior the interpretation of an arbitration. clause iu certain leases of Hawkc's Buy station properties. . The defendant in the action was 'rhomas Tanner, sheepfarmer, of Hnyelock Jlor,th, who had leased the Pakuratahi and Petane Blocks from George Edward Gordon Kichiircison and James M'l'uerson M'Lean, trustees uuder the will of the late Hutton Troutbeck. The leases had been transferred to the .plaintiffs in tliis action. Huttou. Ewnn 'Lroutbeck, sheepfarmer. ul Napier, and Anne Troutbeck, of the samo place, widow, they being bencucinries under the will.

. The lease was surrendered by Tanner some few months before its termination, at the request of the plaintiffs, they having sold the property. After 4bo lease was surrendered the plaintiffs gave notice to the defendant claiming about <£1!IUO for alleged breach of covenant and desired that the claim should bo submitted to arbitration under a clause in Hin leases. Tho validity of the claim being questioned, the plaintiffs applied for a declaratory order, interprotinj; the arbitration clause. The questions tor the Court were: (1) Whether the "question of the defendant's liability for certain alleged breaches of covenant as to repairs and improvements came within tlie scope of the arbitration clause; and (2) if so, then whether, notwithstanding that the surrender ■of.the leases was before any claim was mado by the plaintiffs, tho arbitration clause was still effective.

His Honour, in his judgment, answered both these questions in the affirmative. He mentioned that other questions had been raised, but could not.be decided on thatsummons. The arbitration clause, as worded iii the lease's, covered "any doubt, difference, or dispute between the parties hereto touching these presents,' or auv

matter, clause, or thing herein contained." After discussing several nuliinrities, his Honour said the question enmo to this: "What is the reasonable and natural meaning of thu lniiguogi! used ly the parties?" In this view the language used did not limit'the arbitration to questions of construction, but included all disputes between the parties relating to any matters contained in the lease. He therefore answered question 1 in tho affirmative. He answered question 2 also in the affirmative, but added that it was open to the defendant upon an arbitration under; the submission clause to -Adduce evidence to support his contention that there were circumstances (apart from the mere surrender of the leases) whichoperated as a discharge of any breach of covenant* which might have been committed by him: No order was made as to costs. At the hearing Mr. C. P. Skerrett, K.C., and Mr. H. Johnston appeared for the plaintiffs and Sir, M. Myers and Mr. Fell lor the defendant. . OF INTEREST TO LOCAL BODIES. UPPER HUTT ROADS. A. problem in local government was discussed before the Chief Justice (Sir Eobert Stout), sitting in ,Banco yesterday morning.. ' Tho Upper Hutt Township Company some two or three years ago 'obtained tho sanction of the Hutt County Council of. certain plans for the subdivision androading of land owned by the company. Before any of the roads had been formed or dedicated, tho Upper Hutt Town Board icamo into existence in March, 1908, and its district included the company's land. Hence arose the. questions which came before the Court on an originating, summons. The main point at issue was whether the board could impose upon the company in connection with the formation of roads any further requirements than those which had apparently .satisfied tho County Council. Tliere was also a question whether the County Council had actually approved of tho mode of formation of the roads,' there- being a mistako in the council's minute concerning tho matter. Tho plaintiff company was represented by. Mr. M. Luckie and the defendant board by Mr. P.Levi. : j After hearing counsel, his Honour adjourned' the matter until to-morrow.