COURT OF APPEAL.

Dominion, Volume 6, Issue 1573, 17 October 1912, Page 3

COURT OF APPEAL.

' THE LAKE ROTORUA CASE.

BRISK PASSAGES.' ON THE QUESTION OF COSTS. Brisk argument took plnco in the Court of Appeal yesterday when the Lake Rotorua. case'* was mehtioued in connection with the question of costs. On tho Bench wore tho Chief Justice (Sir Bobert Stout), Mr.' Justice Williams, Mr. Justice Edwards, Mr. Justice Cooper, and Mr. Justice Chapman. Original Case Against the Solicitor- :',. General, The plaintiff : in the action was Tamihana Korokai, aboriginal • native, of Rotorua. He proceeded on behalf of him-sclf-and all' others who are the owners, according, to I Native custom and otherwise, of-the laud covered by the waters of lake Rotbrua.' The defendant was the Solicitor-General (Mr. J. W. Salmond). -

At the .hearing Mr. C. P. Skerrett, K.C., and Mr. C. B. Morison, with Mr. G. H. Fe11, , , appeared for the plaintiffs, while the Solicitor-General (Mr. J. W. Salmond) appeared, in person, and had Mr. H. H. Ostler, of .the Crown Law Office, associated with him. The main point involved was embodied in the following question:—

There having been no cession to tho Crown by any Natives of the Native rights (if any) in Lake Eotorua or the bed thereof or of auy right of fishery or other user, to what extent and iii' what manner (if at all) does the Treaty of Waitarigi secure to the Nativp owners their rights (if any) to the lake, or the bed thereof?.

The Vital Question: All the Court Will

•■:.' ■•>. '•■■ Say. •; -. '_: When the Court, delivered judgment last week it: declared that the Natives had a right to go to the Native Land Court to'have , their titles investigated/ but. the Solicitor r General was not satisfied witli this and declared that the Court had not answered the questions submitted (there were a number).

■ Yesterday, when the Court resumed, the Chief Justice read the following answers to the first two questions set out in the special case:—: , ■, . . -

' /(I) The Native Land Court.has jurisdiction, and on a ; claim by Natives to. be oivners. of .land claimed- by tho Crown, and to determine such a claim by an order, binding the Crown, unless ,.,. its pWver tqi'do so'is brought to..au' : . : end by a proclamation nrider. Section " 85' of .the' Native, Land Act, 1909, or some simiL-ir' statutory : provision, or the Crown shows title to the land. (2) It is.a'question for the Native Land Court in the first instance to determine whether/any -particular piece of land is' Native customary land, and in ascertairiin'g this it may determine whether qr iiot the area described in the ■' application, is Lake.Rotorua, is a navigable; latai; and; U so, whether, according to NaUy&LCUstijm, the Maoris were, : and ace," the owners of tho bed of such .lake, -or'whether'•;they had, arid have, merely a-.right- to .fish in the waters . thereof;, '•'•'■■ v. .'.■..,.'-.. .. \.. .Spliijtor-Geheraj Becomes Brisk, ;■■■ Mr.-Morisou.asked , that.costs ehould be given' agninst the Crown. ■

The Solicitor-General: . Before that 'is dorip', I ask the Court, sir, to give judgment in the action.

Tho Chief Justice: This is a judgment in a special case. '.', <"' ■•'

The Solicitor-General: I ask for judgment for plaintiffs or defendant. ■ The Chief Justice: I do not,think that is necessary. Wo have nothing to do with the main action, . -,

The Solicitor-General:; Unless judgment is given this action is not disposed of. I submit .that the answers given aro irrelevant to any matter in the case. The Chief Justice pointed out that the tiffs- had* frayed for a. declaration only.

The Solicitor-General: And I submit no such declaration has been made. Does tho Court hold that a Native has a right against the Crown to have his title to land investigated in the Native Land Court as of right? The Chief Justice:' Certainly. Unless the Crown proceeds according to the statute. It cannot-proceed in any other way. The Solicitor-General said that the statute itself took away the right. The Chief Justice did .not admit that this wns so. :

The Solicitor-General: My point is that, as a matter of legal right, there is no ; moro' right for tho Natives to get tho freehold title than to get.a Crown grant. The Chief. Justice: AVe have answered the'first two questions. The title can be investigated in the.Native Land Court. The Solicitor-General: That is not the question, sir. The. question does not relate to the Native Land Court. I submit it is not ,tho judgment of tho Court. I want a judgment ■ in the action. The Chief Justice: That is the declaration which the Court makes in the action.

. Tho Solicitor-General observed that it was a declaration not asked for in the action. .».'•.

• Tho Chief Justice remarked that he- did not agree with the; Solicitor-General. Ho then read the answers which the SolicitorGeneral had suggested should bo given to the quostions asked. V ■ The Solicitor-General still contended that the prayer of the statement of claim did not ask for any suoh declaration as had been given. Hβ repeated that judgment must bo given in tho action, and a little later ho submitted that tho question was not as to the procedure of tho Crown in the Native Land Court, but rather as to tho jurisdiction of the. Court of Appeal to deal , - with a suit based on Native custoinary title. The Chief Justice: We must assumo that the Crown consented to the questions put in the case, and that the'questions put were the questions we answered. The Solicitor-General persisted that the Court had no jurisdiction to answer ono of the questions..- ■ •: ■ Tho Chief Justice: Wβ hare determined it in a certain way, and, therefore, judgment is to be entered in accordance with our answers; :.'■-,

The Solicitor-General: Well, eir, does the Court give judgment in the. action? , ;Mr. Justice Chapman: The judgment will be. a declaratory judgment. The Solicitor-General: "Well, sir, all I have to say is, it is a declaration that I never objected to. . . • "Then,"-, said. th? Chief Justice, "it is a pity, wo wasted so much time." Argument then took place on- tho question of costs, .after- which his Honour the Chief .Justice pointed out that it was 5n the interests ot,both parties that the case should have Veen dealt with by the Court, and, moreover, it would be a guide to Hio Native Land Court in the performance of their duties. The Court therefore considered that it was not right that the Crown should be asked to pay costs. Each party would ■ be , ordered to pay its own costs. WHAT IS A FIXTURE? PALMEESTON NORTH CASE. Rather an-interesting point is involved in a Paliuerston North case, which came before the Court of Appeal yesterday afternoon, the question beini; as to whether a building was a ."fixture."-upon a certain block.of land. The Chief Justice ! (Sir Robert Stout), presided, and associ- , I ftted with him were-: Mr. Justice Dennis-ton;-Mr." Justice "Edwards, and Mr.'Justice Cooper. .The parties are: 'William Bryant Yater Pearee, farmer, of Rnngititu, appellantvand Hare liakena To Any Awe, male aboriginal ■ Native, of llangiolu, responMr. 1 , . ' E. Baldwin, of ■Palmsrston North, appeared for I'ehrce, while Mr. H. Gifiord Moore, of Palmerston North,.appeared for Hare Itakeua To Awe Awe. i In the original action, Hare ■ Rakeiia To Awe Awe proceeded agniust William Bryant Vater Pearce to recover the sum of .ESOO'danhiges for wrongful removal of a house from land. It appeared (hat in May. ]B'U, Hare and other Native beenm< , rcizUteredpi'oiiric.'torrf of 100 neres of 'land known a? l.oivcr Aorangi.. .IG. 28. Lat?r th'ev leji-'ed the land for twenty-one years to "Michael O'Connor, who 'mUwiu'eutlj transferred his interest to Pearc« (th«

defendant in the action in tho Court below). Pcarco romained in possession until { tho lease expired in May Inst. In Au- i gust, 1007, the Nntive Land Court parli- I tioned the block, nnd Hare (plaintilV in Hie i action in the Court ljelow) was awarded i ono part, now known as Lot 3, of Lower , Aorangi, 3G 28, and containing 72 acres. ( Now, during tho currency of tho lease Pen'rce erected a dwellinghouso on Lot 3, and this dwelliußbouso was (according to Hare) a fixture, nnd as such was part anil parcel of the freehold. .In May last («i ' llaro alleged) Penrco wrongfully removed ' this fixture. Hence tho claim for dam- ( agos. ( The defence was a general denial, but , Mr. Justice Chapman, who heard the rasp at Palmerslon North, held that Hnro hud made out his cjise, and accordingly gave judgment in his favour for .£225 damages | and costs. From this decision the defendant < (Pearco) now appealed on the ground that i it was erroneous in law and fact. i Legal argument had not concluded at ( 4.3fl p.m., when the Court adjourned until ( 10.30 a.m. to-day. " ( THE DEATH DUTIES ACT. ( DUNEDIN CASE. I A question turning upon the construetion of Section !) of the Death Duties Amendment Act, 1911, was submitted to the Court of Appeal on Tuesday in con- .' nection with a Duuedin caso in which the I Commissioner of Stamps was appealing I from a decision of Mr. Justice Williams, i who eome time ago ruled that a certain i memorandum of transfer was not liable i for duty. Argument on the caeo was only ( part finished on Tuesday, and did not , conclude until yesterday afternoon. The Bench was occupied by the Chief Justice (Sir Robert Stout), Mr. Justice Denniston, Mr. Justice Edwards. Mr. Justice Cooper, and Mr. Justice Chapman. Tho appellant was the Commissioner of Stamps, and tho respondent wns James George 1-inch, merchant, of Onmaru. The Solicitor-General (Mr. J. W. Salmond) appeared for the Commissioner of Stamps, while Mr. A. S. Adams, of Dunedin, appeared for Finch. Particulars of the action in the Supremo Court at Dunedin were published in yesterday's issue. Briefly the question was whether, if a porson paid .6100 in consideration of a gift of land worth £WM, that would bo sufficient to exempt, the gift from duty on the ground,that it was a gift worth less than ,£IOOO. Decision was reserved. '