COURT OF APPEAL
A SAWMILLING TRAMWAY CASE. At a sitting of the Court of Appeal yesterday morning Their Honours Kir Robert Stout (Chief Justice), and Justices Edwards and Stringer heard argument in a. special case removed from tho Supremo Court to the Court of Appeal by consent of tho parties, who were the Pukuweka Sawmill Co., Ltd., plaintiffs, and Gustav Ludwig Winger and Frank Smith, defendants. Mr. C. I'. Skerrett, K.C., and with him' Mr. E. H. Hadfield, appeared for tho plaintiffs,, and Dr. 11. I). Bamford, of Auckland, appeared for tho defendants. In opening his case, Mr. Skerrett dealt first with .the facts, which were admitted by the parties. The plaintiff company desired to remove rails and sleepers constituting a tramway which was laid down by the Pnkctapu Sawmilling Co., to bring timber to tho company's mill near Taumarunui. Tho land was leased from the Natives, and the company used the tramway for removing timber therefrom until tho company waa absorbed by the plaintiffs' company in 1909. when all tho assets and property of tho Puketapn Company, were taken over by the Pukuweka Sawmills, Ltd. Subsequently tho defendants acquired the freeholds of the lands over which the. tramway ran. And, it appeared, that tho defendants offered no objection to tho plaintiffs using tho tramline, and Mr. Skerrett contended that tho' tramway was not constructed for tho inheritors of the land, who did not use it; but the defendants claimed that they had yet timber on tho lands, and the tramway having been • laid down under conditions as expressed, in tho original Native leases, which provided for the removal by this tramway of the timber then on tho lands leased, and since acquired by purchase by the defendants. The tramline was valued in steel rails and sleepers at from ,£2OOO to ,£2500. Mr. Skerrett argued that the tramline was not n fixture, and in no way part of defendants purchase. Being a removable chattel, the law implied tho right of removnlj the defendants' had acquiesced in tho plaintiffs' use of tho lino, arid only objected when plaintiffs sought to exercise their rights of ownership by removal; hence the aotion.
Dr. Bamford's contentions were that tho tramway was laid down on laud under lease from tho Natives; that the tramway was a fixture. liven if it tvero not a fixture, the fact that tho tramway was laid down for tho purpose of taking any or all timber from tho timber lands leased by the Natives, as lliero was still timber on defendants' lands, the tramway could not bo removed. But lio maintained that Uio tramway was practically a railway, laid down 011 a chain-wide road through do fondants' property, was a fixture, and absolutely tho defendants' property.
At the conclusion of counsels' argument Their Honours said they would tuke time to consider their judgment.
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Dominion, Volume 9, Issue 2820, 11 July 1916, Page 9
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473COURT OF APPEAL Dominion, Volume 9, Issue 2820, 11 July 1916, Page 9
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