LAW-REPORTS.

Dominion, Volume 4, Issue 958, 27 October 1910, Page 3

LAW-REPORTS.

SUPREME COURT.

SPOIL ON A VACANT SECTION

CLAIM FOE DAMAGES.

As a result of some oxcavated soil being placed on a vacant section at Island Bay without the permission of tho owner, a case came on in the Supremo Court yesterday before the Chief Justice (Sir itobert Stout), tho parties being May Ethel Pagni, married woman, of Auckland, plaintiff, and John AV. Collins, civil servant, John Clayden, contractor, and Charles Mumme, contractor, of Wellington, defendants. ' .

■.I Plaintiff's claim set forth that she was tho owner of a section at Island Bay, containing 3 roods U perches. Defendant Collins was-owner of the' section adjoining. About the month of October or November, 1900, Collins-or his agents entered - the property., and. placed ~ there quantities.of earth, .clay, .' and; spoil, whereby plaintiff's" land had been'permanently, altered or v injured. 'She.therefore claimed ■ .£loo"special damages and .£IOO for trespass, and also .sought. that defendants-be .ordered to remove the earth. _:■:.- .'', ,'• ■'..•■."."-' >"'■'.■''." '

In the'statement.'of "defence it was admitted that the earth'had been deposited on ; the section by defendants, and that they had refused to remove it,, but tbey denied that.plaintiff's property had been injured. ,

Mr E. C. Lewey appeared for the plaintiff, May Ethel Pagni; . Mr. P. J. O'Eegan for the defendant Collins, and Mr. P. E. Petherick for the defendant Clayden.

-In opening plaintiff's case, Mr. Lewey stated that when Mr. and Mrs. Pagni went to reside in Auckland some four years ago the section at Island Bay was in . a satisfactory. condition so , far as they were concerned. .In the' month of December last Mr.;.Pagni, when on a visit to Wellington,, discovered'that the spoil complained i' of had been deposited, and was stilbbeing deposited; on the section. Ko permission had'been-given to anyone to do 'any, filling !in, and. consequently Mr.-Pagni; placed''thematter in the hands of his .solicitors. Defendant Collins had' made.'no .offer'to rectify the damage, but offers had '.been'made by certain outsiders. It became necessary to. join certain contractors as defendants. One of these (Clayden) had filed an ambiguous defence to the effect that the value of Pagni's property had been improved by the placing of the soil there. The other defendant (Mnmme) did not appear in tho capacity of defendant, as since the commencement' of the proceedings he had assigned his estate. John Henry Pagni, of Auckland, hofelkeeper, stated that the property had been damaged by the placing of the spoil thereon. If, however, .defendants 1 would remove the material, place the' property as near as possible in its. original condition, and pay costs, that would satisfy plaintiff's claim. Evidence for plaintiff was also given' by J. Astill and Charles Mumme. '».''.-' ■• v . For the defence, evidence' was given by Francis ; Charles ,Hay; John Collins, and John Clayden. The last : named stated that. he was .willing ' : to ./do. something towards placing the section in its original condition. ; An adjournment was' granted until November 9 to allow of action being taken by one or other of defendants, his Honour stating that he would endeavour to view the section in the'meantime. LEASE OF r A FARM. ALLEGED BBEACH OP COVENANT. A dispute concerning the lease of a farm near AVanganui came before Mr. Justice Cooper, in Banco, yesterday. : The action was taken- by George Hutchison, solicitor, of Wanganui, against Hugh Muldrock, farmer,'.of Whangarei, The- defendant had leased: a farm . near AVanganui from the .plaintiff, who sued for breaches of certain covenants in the lease, on account, of which he asked for possession of the '• property,. and rescissio'n Of the' lease. In the former action, Hutchison claimed that the property was virtually held by Muldrock as trustee for him, although in form Muldrock was. the lessee of the property... Hutchison, however, .failed to establish this trust. In his statement of claim in that.action, he had alleged the breaches of covenant on which he relied. in the 'new ; action. Mr. Justice Cooper, on the hearing of the former action,, found, as a fact, that if there had been-forfeiture owing: to the alleged breaches, such forfeiture had been waived by. Hutchison. As a defence in the. fresh action, it' was submitted, that judgment in the former action created an estoppal, and that the plaintiff was accordingly barred from claiming on account of the same breaches in the new action. The' plaintiff thereupon moved to have'the question of estoppal determined as a matter of law before the hearing of the action. 1 It; was this motion by Hutchison that 'came before Mr.' Justice Cooper yesterday morning. Mr. Hutchison appeared in person/and .the defendant was represented by Mr. P. ,'G. Dalziell. ■ -.

His Honour, after hearing argument, reserved his decision.