COURT OF APPEAL

Dominion, Volume 11, Issue 189, 30 April 1918, Page 8

COURT OF APPEAL

RESERVED JUDGMENTS VAGARIES OF THE MANAWATU RIVER Several reserved judgments were delivered yesterday by tho Court of Appeal, which continued its sittings under the presidency of the Chief Justice Sir Robert Stout, associated ivith whom were Their Honours Mr. Justice Edwards and Mr. Justice Cooper. In the first case, John Codo Irwin, of Fairfield, farmer, ; v. Alary ■ Elizabeth Muirhead, James Henry Muirhead, John M'l'hail, and James Irwin Muirhead, the facts were that John Irwin, deceased, devised a farm at Itakaia to his son (tliQ plaintiff) for life, and on plaintiff's death to such son of Mary Elizabeth Muirhead, as she 6hould appoint to take tne name of the testator. By subsequent agreement Mrs.' Muirhead relinquisned her power of appointment on payment nf .£2OOO. Tho point fit issue the determination of the validity of the release executed in pursuance -of tins agreement, of which the plaintiff sought specific performance. Since the commencement of these proceedings, which constituted a friendly action, one son had been born to N Mrs. Muirhead. The appeal was heard by tile Chief Justice Sir Kobert Stout, Mr. Justice Edwards, Mr. Justice Cooper, Mr. Justice Chapman, and Mr. Justice Sim. 'l'he Court held in its reserved judgment that the plaintiff John Cade Irwin was entitled to the releaso claimed, and ruled accordingly. At' the 'hearing Sir John li'indlay, K.C., and with him Mr. A. S. Adams, appeared for the plaintiff, and Mr. M. J. Gresson for the defendants, M. E., and J. 11. Muirheatl, and J. MThail, trustees, who would abide by the order of the Court, and for James Irwin Muirhead, infant, who bjr his guardian ad litem, opposed the plaintiff's claim. 11IVAL ACCLIMATISATION SOCIETIES. In tho appeal case the Southland Acclimatisation Society v. the Otago Acclimatisation Society reserved judgment was delivered by Sir Robert Stout. This was an appeal from an injunction granted to the Otago Society by Mr. Justico Sim, restraining the Southland Society from taking ova from the Mairirua Stream, winch lies just' -within tho boundaries of the Otago Society. Tho action involved the right of tho appellant society to take for the purpose of pisciculture within its own district trout ova from the stream in question, ltepoudents claimed the right ,to prevent appellants from' doing this by virtue of a proclamation issued in March 1917, pro-, ljibiting any acclimatisation society from taking any trout for the'purpose of pisciculture during the close season from any river within the boundaries of any other society's district without the consent of tho society .concerned. It was contended at the hearing that the regulation was ultra vires. According to Sir Robert Stout, if the Government considered that such a regulation was neces-

sary for the protection of trout, this contention could not be uplitld. It could not be said that tho regulation was unreasonable, ltespondent society had no proprietary right to the fish in tho stream, but it had a statutory right to protect these fish. The Otago Socicty therefore had a light to go to the Court to seek protection from any invasion of its rights. The appeal must, be dismissed with costs on tho lowest 6calo. Mr. Justico Chapman and Mr. Justice", Edwards concurred in this decision. Mr. C. P. Skerrett, IC.C., with him Mr. E. Russell, appeared for the appellants, and Mr. W. C. M'Gregor, K.C., with him Mr. A. 11. Atkinson, for tho respondents. . SALE 01? 'NEW ZEALAND WINE. ' Reserved judgment was also delivered by, Sir Robert Stout in two appeals affecting the sale of New Zealand wine, Arthur Benjamin Crawford v. Henry Nuttal and Ji'redorick Challis v. Henry Nuttal. Both cases arose out of the same sot of circumstances, and wero treated as <jno appeal in tho argument before tho Court. Ono of tho questions at issue was whether Now Zealand wine may be sold in quantities of two gallons or upwards without a license, or whether the exemptions contained*in tho Licensing Act, 1908, enabling this to be dono has been impliedly repealed by later legislation. In September last tho appellaut Crawford was charged beforo tho Magistrate's Court at Hawera with several breaches of the Licensing Act, and tho appellant Challis ■ was charged with having assisted him in the broaches. A conviction had been recorded in each case. The evi<lenco showed that Crawford was the holder ol ! a license permitting him to sell New Zealand wine in Auckland wider the name of J. Wendel and Co., Challis being his traveller. Three orders for wine wero taken by Challis at Ilawera, and both Challis ana Crawford wero in conseqizmce charged with selling wino at a placo other than the company's licensed premises at Auckland. v Tho enso was heard by Sir Robert Stout, Mr. J t ustjco Edwards, Mr. Justice Cooper, Mr. Justice Chapman, and Mr. Justice Sim. Tho Court held with regard to two of tho sales that the appellants had not established that tho Magistrate's decision was erroneous in point of law, and tho appeal "was dismissed. Touching tho third sale, the Court allowed tho appeal, and- ordered tho conviction to be set aside. ■ At tho hearing, Mr. H. D. Baiuford appeared for the. appellants, and Mr. J. W. Salmond, K.C., for the respondent. OLD MAORI GRANT. In another appeal case affecting tKo title to an old Maori grant, reserved judgment was delivered by the Chief Justice. Tho block of land in question was ,in the parish of Pepepe, County of Raglan. The parties to this appeal were Angus M'Kinnon and Samuel Hesketh (appellants), as executors in the will of Donald M'Kinnon, of Ohinewai (deceased), and-Jessie Craig, respondent, as executrix in the will of Alexander Campbell, of Auckland (deceased). Sir Robert Stout and Their Honours Mr. Justice Edwards/ Mr. Justice Chapman, and Mr. Justico Sim unanimously upheld the appeal. Tho appellants were represented at the hearing by Mr. H. D. Bamford, and the respondent by Mr. C. P. Skerrett, Iv.'C., with him Mr. M. J. Crombie.

THE MANAWATU RIVER A QUESTION OF EROSION. A case removed from the Supreme Court for legal argument was brougnt on in the Court of Appeal yesterday before the Chief Justice Sir Robert Stout and , Mr. Justice Edwards and Mr. Justice j Cooper. ' ; The action was one in which the Palm- I erstou North Borough Council was plain-' tiff and John Octavius Batchelor, of Palmerston North, defendant. _ The • plaintiff council .sought'an injunction.rcstraining the defendant from continuing or maintaining either of two stop-banks or, groynes which he had constructed across a channel of the Manawatu River near Palmerston North. They also claimed .£490 as damages. In respect of a second cause of action, the plaintiff ' asked the Court to declare that certain j land lying north and .west of the original j bank of the Manawatu River was part | of the bed of the said river, and not j the property if the defendant. Mr. C. P. Skorrett, K.C., with him Mr. P. H. Cooke, appeared for the plaintiff council, and Mr. -M. Myers, with him Mr. L. L'E. Edwards, for the defendant. Both parties own land impinging on the Manawatu River, and the plaintiff claimed that in an effort to protect his own land the defendant erected two groynes, which had partly blocked the channel and diverted the water into other parts of tho river and against the plaintiff corporation's land on the other, side. Further, the volumo and velocity cf" tlw waters of the Manawatu River had bco'n increased, causing an erosion to the extent of at least seven acres of the corporation's land. The erosion would continue unless the obstruction was remoyed. As rogards the second cause of action, the defendant claimed in his defence that a very large area of land had been permanently and gradually raised above tho level of'tho Manawatu River, and had become an accretion to his said lands. Without any notice to tho plaintiff corporation, tho District Laiju Registrar

had issued the defendant a title to these accrued lands. The plaintiff disputed this title. for the defence it was denied that the groynes had caused any erosion. With regard to the accrued lands, the defendant submitted that he and his preilece.60i;3 in title had been in uninterrupted possession and occupation of these for upwards of twenty years prior to the issue of the disputed title. Further argument will bo heard in tho action this morning,