LAW REPORTS.

Dominion, Volume 7, Issue 2213, 28 July 1914, Page 3

LAW REPORTS.

SUPREME COURT BOROUGH PROPERTY AND RIVER BOARD RATING QUESTION OF EXEMPTION

Reserved judgment was delivered yesterday morning by His Honour the Chief Justice (Sir Robert Stout) in ah originating summons -which was brought to determine certain Palmerston North matters arising out of Section 9, Subsection 2, of the Rivers Boards Amendment Act, 1913. The plaintiffs were the Palmerston North-Kairanga River Board, and the defendants were the Palmerston North Borough Council and the Kairanga. County Council. . At the hearing on July 17 Mr. H. R. Cooper, of Palmerston North, appeared for the plaintiffs, Mr. T. Young represented the Kairanga County and certain ratepayers, while Mr. F. H. Cooks, of Palmerston North, represented the Borough of Palmerston North. , The questions submitted to the Court were: . . (1) Should all lands in a river district, other than ■ those Buffering, or likely to suffer, actual injury from flooding or erosion of the banks of the river, be classified under Class D, as provided by Section 9, Sub-seetion 2, of the Act? "" / (2) On what principle should assessors proceed, in determining the particular into t which lands should bo placed? '- ■■ . "■ (3V Should the word "benefit," in Section 9, be limited in meaning to the protection of land from actual danger from' the river ? . (4) Are lands in the district under Class D liable to pay any rates? (5) Is the last proviso to Section 9 (Sub-section 3) available to a 'ratepayer as a defence to an action for Tecovery of his rates, (a) if his land is classified under A, B, or C? (b) if his land is classified under D? And is siich defence available every year according to tho particular expenditure of that, year's revenue? ■ ■ ■ (6) Is the Borough of Palmerston North liable-to pay rates to the River Board for: (a) Lands which are not let to tenants ? (b) any of the reserves referred , to in Sections 140 and 144 of the Municipal Corporations Act,, 1908 ? <c) tho land referred to in the Palmerston North .Reserves Act, 1890; and the Amendment Act of 1901? (d) lands used exclusively by the borough? (7) What is.the moaning in Section 2. Sub-section 2; of. the Rating Act' Amendment Act, 1913, "Lands and buildings exclusively used by any local authority for its own business" ? In the course, of his .judgment,: His Honour said that it wae clear from Section ,6, Sub-section (a) and Section 73 of the Riyer Boards Act, 1908, that the constitution; of River Boards and tho formation of Riyer Districts were for dealing with rivers, streams, and watercourses so as to prevent them overflowing their-banks. Land which could' in no way -be- prejudiced by the overflow of.streams, water-courses, or.' rivers' should not originally have been included ■in a river district. In His Honour's opinion, however; the Act must be held to assume.that some lands might be-in-' directly benefited by the river works though not actually or directly liable to be affected by an overflow of a- river, stream, or .water-course. It was not enough to exclude them that they did. not suffer "actual injury from flooding or erosion." Tho question to be coneidered by the. classifier was: Could tho .river works be of any advantage 'to them? This disposed of, questions 1, 2, and-3.. The answer to question 4 was "No." In regard to the fifth question, the answer was "No," so far as (a) and (b); were concerned. If a fatepayer wished to get rid of his liability, he-must appeal and get his nanie removed from the list. If-his land was classified under Clause (d) in Sub-sec-tion (2) of Section 9 of the Act «f 1913, then ho was free from rates and could not be sued, and he could raise that defence at any time. "Questions 6 and 7 refer to the liability of the Borousrh of Palmerston North," continued . His Honoiir, "and an exemption is claimed under Sub-section 2 of Section 2 of the Rating Amendment Act; 1913. The principal Act; of which this is an amendment, is incorporated in the River Boards Act. ... It is clear that it will exempt the Borough Council offiess, or land used ' as yards in 'connection with corporation works, or land used in connection with street maintenance, or street formation, such as gravel or qua.rry reserves, or land used . in. connection with any works or business carried on by the Borough. If lands are let to tenant? or held merely/for letting purposes and sources of endowment, and are.at present unlnt, these would be liable to pay rates:. As to land reserved for public recreation and used by the Borough as public , reserves, I am if opinion that these lands are also exempt.- It is part of the functions of the Bnrough to provide public gardens and public recreation reserves.; That has become, therefore, part of the business of a. corporation, and lands used for carrying on that line of business are exempt. In." my opinion tho land mentioned in .Sections 4 and 5 of the Palmerston North Reserves Act. 1901, will be exempt, but'not the land mentioned in Section 2. If the lands me'n'tioned in that Act are leased, then they aro.not exempt. If thfiv are in possession and occupation of the Borough, and are used for recreation only, they are exemnt. The only other land owned by the Boroudi is, I am informed, tho Municipal Ooera'House, and the question is whether it is exempt. It is let to persons or companies for Hire. It is -not, therefore, used exclusively for the corporation. It is used "by other people, and is. not, therefore, in my opinion, exempt." '

WATER SUPPLY AT RONA BAY.

DAMAGES AND AN INJUNCTION. ■ In order to determine the rights of" residents as to water supply in, a portion of Rona Bay an action-Was brought , in the Supreme Court last week before His Honour the Chief Justice (Sir Robert Stout), and reserved judgment was delivered yesterday morning. Tho plaintiff in the action was Bartello ' Russo, farmer, of Roto-o-Rangi, near Te Awa-

inutu, and the defendant was Gcorgina | Ridgway, wife,of James Ridgway, butcher, of Rbna Bay. . I Mr. T. S. Weston appeared for Russo, while. Mr. A. W. Blair, with Mr. P. B. Cooko, appeared for tile defendant. ' •It was set out in the statement of claim that Russo was the owner of certain land at Rona Bay, which land is crossed by a small stream. On this land there had been erected , a dam, from which a. pipe lino leads from Rona Street to supply certain persons, who originally contributed to tho cost of putting down the pipo lino. It was alleged that the defendant (Mrs. Ridgway) had : unlawfully connected on to this pipo for the purpose of obtaining j water supply for her property. Russo asked foran injunction compelling 'Mrs. Ridgway to' disconnect the pipe, and ho also claimed £20 damages. Defendant (Mrs. Ridgway) admitted having connected witli the pipo lino, but claimed leave and license, and disputed the right of Russo to recover damages. His Honour, pointed out (in the course of his judgment) that the stream was diverted before the sale by Russo of the land, which the defendant (Mrs. Ridgway) now owned. Russo .was entitled to so divert the stream, or part of it, as there were no owners of laud abutting on the stream, or owning land through which the stream flowed. He had granted an easement to certain owners of land, but there was no authority for the defendant (Mrs. Ridgway) to :Use this easement without the leave or license of the plaintiff (Russo). Any leave or license had been withdrawn. . The-defendant (Mrs. Ridgway) was taking water flowing over or through the plaintiff's land, by the pipe mentioned, and this was trespass unless the defendant could show authority for so doing. Defendant could show no such authority, and, in His Honour's opinion, Russo was entitled to judgment. Nominal damages of 40s. were awarded, with costs on the lowest scale, and the plaintiff (Russo) was granted an injunction prohibiting the defendant (Mrs. Ridgway) from connecting with the-pipe. . STATEMENT OF CLAIM. . SUMMONS'TO AMEND DISMISSED. Reserved judgment wae delivered by His Honour the Chief Justice (Sir Robert Stout) yesterday: in an interlocutory matter connected .with the case of Death and others y. Death and others, an action alleging breach oftrust in connection with the disposal of certain lauds. Last week His Honour had heard a summons by defendant to amend tho statement of claim in the direction of severance, ; and A further summons to strike out the name of Frederick Charles Death as a defendant. Mr. H. D, Bell, K.C., appeared for the defendants in support of the summons, while Mr. C. P. Skerrett, K.C., opposed on behalf of the plaintiffs. [ His Honour found that the balance of convenience favoured the trial of the claims together, before-a Judge alone. •The plaintiff's counsel- agreed to the trial being before a Judge alone —were it otherwise His 'Honour would' have' severed the claim against P. C. Death from the' claim against \the; trustees:Tho summonses were each 'dismissed with two guineas costs, to be costs: in the cause and to be dealt with by the Judge at the trial. ~; '■.■"/ MILKING MACHINE PATENT. j AUCKLAND -CASE IN WELLINGTON. A 1 Supreme Court action commenced in Auckland some weeks ago before His Honour Mr. Justice Stringer was !. continued y.esterday,.'aridis likely to extend "over some days. The plaintiffs' are' the Gillies Milking Machine. Company, and the : defendants are the Gane Milking .Machine Company.": ; ' Sir John •Fiiidlay/iK.C., with Mr. D. Sl.'Findlay, is-appearing for the plaintiffs,' while' Mr. ; G. P. Skerrett;' K.C., with Mr. W, E.. .Moore, of Auckland, is.'appeariug.for, the defendants. The allegation is that the Gillies machine . was the first: to which the air principle 'of .working h'a<l been applied, and that the-patent had been infringed by the defendants. ..._ . . _ Lengthy evidence is .being taken in connection .with the claim. , - t .