COURT OF APPEAL.

Dominion, Volume 4, Issue 1110, 25 April 1911, Page 5

COURT OF APPEAL.

FARMER'S LAND AND COUNTY COUNCIL COMPENSATION CLAIM. Bight of a South Island farmer to proceed for compensation in respect of certain land taken by a county council under tho Public Works Act for road purposes was the basis of an appeal which was partially heard by the Court of Appeal yesterday. The parties were Edward Butler Harrison, of Waihao Downs, near Waimate, farmer, appellant, and the Waimate County Council, respondents. Tho Court consisted of the Chief Justice (Sir .Robert Stout), Mr. Justice Williams, Mr. Justice Edwards, and Mr. Justico Chapman.

Mr. H. D. Bell, K.C., with him Mr. W. E. Kinnernoy, of Tiraaru, appeared for tho appellant, and Mr. T. V. Martin, with him Mr. Win. Hamilton, was for the respondents. Tho original ease came before Mr. Justico Sim, , at Timaru, in October last, in the form of a motion by the County Council to set aside a claim for £2135 18s. 6d., made by Harrison for compensation. On that occasion the Court held that an agreement in question between the parties was valid, and issued an injunction restraining Harrison from proceeding with his claim. The appellent now submitted:— That the judgment was erroneous in point of law. That it was erroneous on tho facts.

That there was no valid agreement settling the compensation, and that he (appellant) was not debarred by agreement or otherwise from pro- .. ceeding with his claim. That neither.the statutory requisites . (under the Counties Act) to the validity of tho alleged agreement, relied on by respondents, nor the provisions of the Statute of Frauds wore complied with. That the document of August 23, 1909, was not ratified by tho council so as to be binding on tho appellant, or the respondents.

Appellant also relied on statements set out in a number of affidavits. He urged that the road in question deprived portion of his lands of their permanent supply of water, and .'prevented tho stock on portion of his farm from obtaining tho shelter which it had hitherto enjoyed in cold southerly weather. Further, the road had increased tho cost of working the lands by reason of the zig-zag course which it took, etc. Ho had originally claimed £2135 18s. 6d. as compensation for all loss arising out of the taking of the lands, and loss arising from tho works carried out. Owing to the proposed deviation in tho road, ho had objected to the land being taken, and the council had subsequently notified him that they would take it under the Public Works' Act. It was alleged that a binding agreement had been come to by persons representing ■ Harrison and two -members of a committee of the Citv Council.

This agreement, dated August 23, stipulated-for"the payment of £700 as compensation iiv full for acquiring, fencing, forming,, and maintaining the road on the lands taken from Harrison's, property, on condition that certain water-rights, dividing'fences, and other matters were complied with by the Act.

On October 22, 1909, Harrison's solicitor' wrote advising the County Council's solicitors that he did : not recognise the- document of., August ~24. The-council, in reply, did not assent to the terms of tho notice.

Mr. Bell submitted that tho agreement was invalid,"and that Harrison should not have been debarred . from proceeding for .recovery of compensation. The agreement had been signed by two members of the council —these two being members of a committee which had been empowered to negotiate with Harrison concerning the road— but they were not, ho argued, empowered to sign an agreement binding on the council. The contract was not a valid one, and could not, ho urged, be made so by a subsequent resolution of the council.

'Argument was still proceeding when tho Court rose until 10.30 this morning.

ORDER OF HEARINC. DATES FOR AUCKLAND CASES. A further list of fixtures for foreign cases was made when the Court of Appeal assembled yesterday morning. Tho caso Harrison v. the Waimate County Council, which is at present being heard, is expected to bo finished ; to-day, and.it will be followed by three Auckland cases, viz., in re Elizabeth Knox, deceased, Thos. Buddie, and others v.'the Commissioner of Stamps; Devonport Borough - Council v. the Auckland Gas Co.; and George Cooper v. J.-Bertelson and Rudolf Rasmussen.

Tho Auckland.cases will bo followed by an application by the New Zealand Educational Institute for the determination of a question as to the construction of the Education Act, and its amendments, in regard to the power of an education board to prevent any child of school age attending a district high school.

Tho next case on the list is an appeal under the Family Protection Act— Chas. Manby Walker and Bessie Walker v. Alfred J. Litchfield and others.

Dates for the Wellington cases will bo fixed later. It is expected tliat the Court will be sitting for another fortnight.