SUPREME COURT.

Dominion, Volume 4, Issue 1191, 28 July 1911, Page 3

SUPREME COURT.

CAN KING'S ROAD BE NARROWED?

lung s Road, Miramar, was again the subject of argument in the Supreme Court yesterday before his Honour the yb'et Justice (Sir Kobert Stout) sitting in Chambers. Sometime ago the . Borough .Council decided -to narrow the width of the street from 99ft. to GOft., and the case first came into' Court in the lorin of an application by the Miramar .Borough Council for an order, removing a caveat, which had been lodged bv Hector Norman M'Leod, one of the proportvowners affected,. to prevent the registration of an order of the council diminishing Kings Koad to 66ft. -Oil Tuesday last this phase of > the question was argued, when Mr; T. I'. Martin, _ with him Mr. T. Young, •atipenred tor the Miramar Borough Council, Mr. Martin Chapman, Iv.C., for the •caveator, and Mr. J. W. Salmond, So-heitor-Cieneral, represented the Attorney-

When this preliminary point was beine argued on Tuesday, Mr. Chapman interposed, aird- asked that tho Court should decide upon the efficacy or otherwise of the caveat to restrain the council. The .preliminary, objection that tho caveator had no right to lodge the caveat might prevail and counsel thought that it would-be well to have the caveat disposed of betoro other proceedings were brought. An adjournment was then decided on, m order to give the parties an opportunity of conferring as to the manner in which the case should be presented, subsequently, it was decided to discontinue the original proceedings, the application was deemed to have been successful for the purposes of costs, and the power of the council to diminish the width of the street and dispose of the surplus land was argued yesterday.

Mr. ATartin claimed • that the council had power, under Section 182 of the Municipal Corporations Act, to diminish the width ot the street, and if they decided to do so, they would necessarily consider the surplus land was not necessary for street purposes. In "such a case, it was provided that the frontager had a right to purchase if ho cho c c. . His Honour: That will not be denied, but are tUey-bound to sell it to him? Mr. Martin submitted that the wordin» of the Statute made it clear that they must do so. . If the frontager was unwilling to purchase the land, it must-bo sold by- public auction, or devoted to public utility .purposes,' His Honour; Could they not let it go as waste land?

Mr. Martin* submitted lliat'thev had 110 power to do. so. The Statute'did not oonteniplale such a condition.. Ifofcrring to_ the. question of compensation, counsel said that any owner in the street, even though his land were.oll the opposite sido to that where tho street was narrowed, might claim compensation for reduced value. Whether or not ho would be assessed was another matter;

His Honour remarked that he thought onv. Magistrate (lie supnosed • the case would go before a' Magistrate) would hoid that the land was" reduccd in value bv the narrowing of ihe street. , , Mr. Martin replied that that' was not the experience of the City. Council in connection with the widening of Adelaide Rond. Owners oil the side of the street opposite'to that on which, land had been taken were to have boon proceeded 011; the ground ihat their land had been raised in value by the widening of the street, but the council wero unable to get a single witness. 11 was rather the opinjon tnat the land had been diuiinis'hed 111 value because people could not sea into the shop windows" from one side of the street to the-other. ..J 1 .'/: Honour; Then the wav to make Wellington wealthy, is to narrow the streofs to', a width of 40ft. throughout. ■Tho Solicitor-General contended that a municipal corporation could only diminish the width of a street in accordance with the seventh schedule of tho Municipal Corporations Act. Even if the procedure of the seventh schedule was'adopted in this case, tho Miramar Borough Council couM not do what they wore trying to do .in this, case, that wfs ti wholly deprive property-holders of their frontage '5 the . street. It might be argued that a street could, liot be diminished at all without depriving property-holders ef tlnir frontage. But that was not so, for a property-holder might have more than one frontage,, and would not therefore be wholly deprived of access, or the street might run along tho water front or along a public -park. Sir. Chapman addressed the Court in support, of the Solicitor-Oeneral's contentions. He. pointed out that diminishing a road did not mean closing, a road at all. It could be diminished in width without closing it, as a public, highway. Ho instanced tho' case:, of Kent. TerrScp and Courtenay Place, where the width of ihe streets had been diminished by the planting of trees, etc., b:'t they were not closed to tho public, if ihe' fronhigo tj the'road, was to be taken'awav from any j.'eperty-holder, and no access given, cs wa ; proposed in this ease, it was manifest that an injustice -would .bo done. The hearing will be concluded this morning. I