LAW REPORTS.

Dominion, Volume 5, Issue 1398, 26 March 1912, Page 3

LAW REPORTS.

COURT OF APPEAL,

QUESTION OF JURISDICTION. CIIIEF JUDGE OF NATIVE LAND COUiJT. Yesterday the Court of Appeal sittings commenced, viion there were present on the Bench Sir Joshua Williams, Mr. Justice Deimiston, Mr. Justice 1-Mwards, l!r. Justice Chapman, and iir. Justice Sim. The preliminary linsine.-tf of tho Court was eoiicerneil with amusing Hie urder ot oa-f>, alter which reserved decision was delivered in an appeal from a Supremo Court decision in regard to a dispute over the area ot a block of .Native land. At the heariiiß of the appeal the Bench was occupied by Sir Joshua Williams, Mr. Justice Edwards, Mr. Justice Chnpman, and Mr. Justice Sim.

It appeared that, in ISSfi, Hie Native Land Court partitioned the Oliahukura Block, in the Taupe district. Okahukura. Nα: 2 was marked oil on the plan before the Court, and tho area found to bo (according to the plan) 23G1) .■■cres- An accurate survey, made later, disclosed that the subdivision contained 796 acres only— about one-third of (lie area shown on the plan. Subsequently an application was made to the Chief .Tudjo of the Native Land Court by the owners of Okaliukura No. 2 to have the area of Uio subdivision increased to 2360 acres. That was granted. Parliament was then petitioned on two occasions, on behalf of tho owners of the subdivision known as SM.No. 2 to have a roinvestigation of tho block made. In inor tho Native Laud Laws Amendment Act was passed, and Section Ti of that' Act authorised tho Native Appellate Court to inquire into the matter. Tho inquiry ivas held, and the boundaries of Oliahukura No. 2 were fixed so as to ininclude an area of 1100 acres, and by Section 37 of the Act, (.he decision of this Court, was to bo final and conclusive.

An application, was then made on behalf of the owners of Okaliukura No. 2 to the Chief Justice of the Native Land Court, under Section .'iD of tho Native Land Act, ISM, asking that the area bo increased to 23G0 acres, on the ground that there had been a manifest error in tile decision of the Native Appellale Court. This application was heard, and immediately thereafter, Hie owners of SM No. 2 commenced proceedings in the Supremo Court to have the Chief Judge of the Native Land Court prohibited from proceeding with the application, which was taken to have bcc.i made under Section 50 of ths Native Land Act, IHOI), as well as under ivctinu .'» of tiie Native Land Court Aov, IS!M. The Supreme Court held that the Chief Judge had no jurisdiction to interfere with the order made by the Native Appellate Court in 1907. The present appeal was from the, decision of tiie Supreme Court;

The parties to the action were Taitmna "Jfaraiirratana r.nrt others, owners of Ok.ilmkura No. 2, appellants, and Patona Kerchi mid another, owners of 811 No. 2 resnontlents.

At the hearing Mr. H. T>. Bell, K.C., with him Mr. T. W. Lowi?, of Hastings, appeared for appellants, and Mr. Martin Chapman, K.C., with him Mr. S. A. Atkinson, for the respondents. Sir Joshua Williams delivered a judgment pxjirc-Bsins the opinion that the Chief Judge of the Native Land Court had jurisdiction. Their Honours, Mr. Justice Eilwards and Mr. Justice Chapman agreed. Jlr. Justice Sim dissented. The appeal was allowed with costs on the highest scale, but not as from a disMγ. Martin Chapman moved for formal !c:ivo to appe;:! to tho Privy Council. Leave was granted.

AN APPEAL DISMISSED. FENCES ON A PUBLIC TIOAD. Sir Joshua Williams, Jlr. Justice Dcnliisfoii, and Mr. Chapman were o;i Vμ- Uenc-li ior Vno hearing of the appeal case Loiiifliiiiia and tho Cambridge i;.iad Hoard v. Morgan. The eate was referred to by counsel for the appellants as of great importance to every road board in the Dominion. _ '1 he parUc-i wf-re: F. O'B. Loughnan, Stipendiary Magistrate, of Hamilton,- and the Cambridge Jiv.nd L'uard appellants; and John David Proper Morgan, farmer, of Ilaiirnnii, respondent. Mr. W.'l , . Buck-land, of Cambridge, appeared for the nppellants, and Mr. A. W. Blair for the lTsjw.iilcnts. The statement of the case set forth that certain fences wero erected across a public road, which i≤ wiiiiin the jurisdiction of the board, but were not erected by permission of the biard. Ic was alleged by H:o board, and it was not denied, that the road was in a state of nature, and if all the fences wero removed it would si-ill bo useless as a road, unless a considerable sirln of money wero sivaii, upon it. On October 29, 101U, Morgan and four other ratepayers reque.-tcd the board to serve notice on th>;e at whose instance the fences were erected, ordering their removal within a time to be appointed. The petition was lodged on tlio ground that the fence co.u.-cd an obstruction on the road, v.-hich was the shortest and most ccnveuicnt way between Morgan's farm and the towns'iin of Ohauno, the cati-o market of the district. The bu.iril refused to comply vrilh the request of ti;-3 petitioners, and on December 10, li'lO, Morjwn lodged a complaint ia (ho Magistrate's Court eailiii;: on the board to show cause why such notice should not ba given under'Section 129 cf tho Public Works Act, 11103. Without going into tho, merits of the cn=e, tho magistrate dismissed the complaint upon the ground that there was no jurisdiction, in as much as Section 129 of the Public Works Act applied only to g.jtes and fences erected by pormiraion of a local authority. Costs amounting to £7 (is. were awarded ajrahrst Morgan, who thereupon appealed to tho Supremo Court at Hamilton, asking for a writ of mandarins to compel the magistrate to determine the complaint. On September 27. 1911, Mr. Justice Edwards delivered decision, in which he expressed tire opinion that Section 129 of the Act applied to all gates, iences, or obstructions by whomsosver erected or placed upon public roads. He therefore ordered the i-suo of the writ compelling (lie mai:-istr-ate to determine the complaint. It was trom this decision that the Stipendiary Magistrate anl tho board now appealed.

Alter hearing legal argument, Sir Joshv.a Williams delivered judgment concurring in the view adopted by the learned judge in tho court below, that Section l:'J) of tho Act must be construed generally. Mr. Justice Dennistou and Mr. Justice Chapman agreed. Tho appeal was therefore dismissed, with cc-ts on the lowest scalo as from a distance.

PRIVY COUNCIL APPEAL ABANDONED. Mr. 11. C. Bell, K.C., mentioned the ei'.su of liaird and others v. Fergusson and others. Counsel at, the previous sittings asked that his motion for leavo for plaintill.j to appeal tn the Privy Council sdould stand over until the next regular sittings in 1912. The application was at tho litmIjranled. Yesterday Mr. Bell iutimalod to their Honours that tho idea of npne.il had been abandoned. LIST OF CASES. The list of cases is as uiubr (the first fivo coming in the order stated):—V. O'B. Loughnan and the. Cambridge Koad Board v. J. D. l>. Morgan; I'itcuthly and Co. v. John M'Lean and San; District Land Ecgistrar v. \V. H. Brightwell and J. 13. fiiday; Public Trusted v. E. C. B. l'iliiiiigfon; Kauri Timber Company, Ltd., v. the Commis.sioiH'r of Taxes; Tauno Totara. Tiinl.'sr Company v. I ho Commissioner of Taxes; Thomas M'].c:ui v. F. ]?. H. Brice; Schmidt and Bcllsliow v. Orrciiwoud: in thii luuller sit* lite J.aw ['rsclitimiers Act ami ro Soiiiervillc ;md re Stevens; If. B. Willinm-i and othovs v. Miramnr, Ltd.; the D.I.C. v. the Wellington City C'nriKiration; Wivelos'-i Telegraph (■oii'.panv, Ltd., v. I'm i\ing; the King v. Marv Ila=se!l and Charlurti-. CainplieU: [lie King v. Murilis. .Ti:i:e (VSlsau-hucs-y, !!i (he malter of tlio Tublic Tiih! Oiiiei> Act n.wn n pe.-ial c-aic); Amy J.evin v. flic ul Tax: , -; t'luylon v. Chambers; J)nl;;cty mi'! Ci.mpan.v. Lt-1., v. Hie ieucral; l:«id v. lh» Ki|i>ilnble "Ilife Awurniico Company; Kim; v. die Tin , two iolUiwiiig cihis will toino before thi! Full Court:--Inleriiiiliunal Investment Compun.r v. Andrews, and Hio WoULiiutoii Hospital Board j, the IVoiJjogtoa .City. .Council,