APPEAL COURT

Dominion, Volume 13, Issue 75, 22 December 1919, Page 2

APPEAL COURT

. . RESERVED JUDGMENTS LIABILITIES OP LOCAL BODIES ! Unserved judgments were delivered by j tins Anneal Court on Saturday morning. • On the Iwnch were His llummr, the Chief , Justico (Sir liot'ert; Stout), Sir.'Justice ; Edwards. Mr._ Justice Chapman, and Sir. i justice Itoskiiig. ! The first judgment was in respect io the j appeal uf Stephen John I'ortescue against | a decision of His Honour Sir. Justice Cooper. 1 Furlcscuo is the owner of 3 acres 1!) ; perches, part of the Greemneadows Estate, in the borough of Te Awamutu, I anil fronting Sl'Garry . Avenue, which avenue or road was formed and dcdicat:ed on Slay 11, 1913. At that time the , road was in Waipa County, Te Awamutu 1 Borough not having then been constituted. In the course of the formation , of the road a covered drain 42ft. in , length was put in running across the 1 road opposite the appellant's land, and ■ the drain was so constructed as (o col- : leet storm water from the road, which slopes down from both directions to the, ■ drain. Tho water entered the drain, and : was discharged in such a position that ! it flowed on appellant's land.. The drain, : it was alleged, constituted a nuisance, causing damage to the appellant's land bv tlie concentration and dischargo of storm water. 11l October, 19)5, appellant called upon Te Awamutu Borough Council to abate the nuisance, which the council refused to do, and had continued to permit the nuisance. Since then water had been . discharged from the drain on to the land, and had injured amile trees. Fcrtescuu brought an action m tho Supreme Court, Auckland, against Te \wamutu Borough Council, claiming X 75 damages and an injunction restraining tho council'from permitting water to be discharged on to the land. . Sh'. Justice Cooper, who heard the case, 11011- . suited Fortescue on tho ground that ho i );ad not established a cause of action, and it was against this judgmyit that Fortescue appealed. The four learned Judges who heard this case concurred that the appeal should be dismissed with costs. Dr. It. D.Bnniford, Auckland, appeared for tlie appellant, and Mr.' S.' Swarbrink, of Hamilton, for Te Awamutu Borough. A QUESTION OF TITLE. Judgment was given in the special ease stared by the Hegistrar-General of Land pursuant to section 205 of tho Land Transfer Act, 1915. Tho facts of the ca>.o were tlmt on February 17. ISSI, and on April 1, 1882, Ci't-wn wants were issued in respect of three parcels of land in favour of certain Natiros. On the face of each of (he three Crown grants appeared the fol-lowing-.-"Tlie land shall be inalienable bv gift, sale, or by lease for a longer period than 21 years, or by mortgage, except by consent of the Governor-General being previously obtained to any such gift. sale, lease, or mortgage." Certain Persons—James ' Patrick Bradley and John Bernard Bradley—claimed that they had been in undisputed possession of "the said three pnrcels of land, and liad therein* acquired a title to same. On December 18. 1.912, the Bradleys Indued with the District Land Registrar, Wellington, an application to' bring /inter alia) the said land under the Land Transfer Act, 1908, and to have issued to 'James Patrick Bradley and John Bernard Bradley, as registered proprietors. certificates of title. On Slay 22. 1!)13. a notice was publinhed as prescribed bv the Land Transfer Act. bv the District Land Registrar,. givin.r notice of the application. A caveat was lodged on behalf of the Crown on June 2t. 1913. forbidd'iis the bringing of- tho la !"l under the Act. The question submitted for the opinion of the. Court was: Can the said James Patrick, Bradley mid -T n hn B?r----nard Bradley acnuire a title to the three ..ivirco's of land or any of them by virtue 'of adverse possession-for a period of 'twenty vears? . ' The Court decided, fTint. the land could be acquired by nre?crint:on- -Chat is, the nuestinn was answered in the affirmative. At the henrivq 'Sir John SaWnd, K C-. annealff 11 - rhe Crown, and C.. V. Skerrett. I'.C., with him Sir. L™ ; s Cohen, of AYangamii, for the appellants.

RPECTFTC PCTFOTtMANCE. Judgment was delivered in the ca=a of Thomas M'Grail, of Long Acre, lie-it' Wamranui, fnrine.-, appellant, and Georns William M'Caiil and Charles Bower Collins, of Waitganni, solicitor, and William Woolven, of Wanganui, fanner,, respondent. This was an appeal against a judgment of His Honour Mr. Justice Chapman, given in tho Supremo Court, Watiganui, and the facts, as set out in tho nlaim in the. Lower Court were as. follow:—On August 7, 191?, M'Grail authorised in writing Lewis and Co., of Wanganui, land agents, to sell 55 acres of his property at Long Acre. Oil the following day. Lewis aim Co. enteral into an agreement with William Woolven to sell him M'Grail's land. On the same dav M'Caul unci Collins paid Lewis and Co. ,i deposit, of .£IOO. After some correspondence all the terms and conditions were settled; except t.hat it was proposed by M'Grail's solicitor that the usaof t.iie la'.id as a. market, garden should bo prohibted, to which Wcolveu declined to aectde, when M'Grail's solicitors proposed that the prohibition .should only apply until a further mm of ..ClSflfl had been paid. This offer was accepted. It was agreed dur'ng'lhe progress of the negotiations that M'Grail should have a tenancy of the land on whin condition-;; On September !Xi, 1018. a. further sum of .£IOO was paid to M'Grail, and a filial payment of .£IBO was to be .made upon delivery of possession of the land. The defendant pvcntua'l.v refused to complete and carry out the agreement, wherefore the plaintiffs claimed fur siKoilic performance of the agreement oil the iwrt of U'Cira l, or alternatively compensation or damages amounting lu JMI3O 10s.; or alternatively without prejudice to the above claims, return of the sum of .fiJflfl. M'Grail, in his statement of defence, claimed that tho correspondence between the sol'citors was tho usual correspondence in an endeavour to express the form of the. contract \vh\eh the parties should ultimately enter into, and not inteiuM to h : nd cither party. 'He denied that there was a concluded settlement M'Grail fuvthcr clii me:l Ui.il there never was any memorandum ill writing of the agreement or contract sufficient to satisfy the .Statute of Frauds, and that (here was no conc'.udml contrad for the '■'ale of tho land. M'Grail no'(I into court ,S!"U •!*. to satisfy tho cla'.m for return of money paid. His Honour Mr. Justice Chapman gave judgment for sneeilie performance of (he contract to s:'l t'np' bunl, with ccsts •is if .E'tvO were in <l''srute. The appeal was against this judgment mt o'c '.'rounds I ha! it was crrriicuus n noinl of law. and in nvitler of fact. n'.Xi Hie appellant n;.M that judgment bo entered fer him. with costs. The Court allowed the aiveal, and mdcr'v! that judgment should V'i cnI in the action in the Court below •vilh costs. At (he hearing, Mr. C. 11.I 1 . Skerrelt. k~ 0.. w'lh him Mr. C. P Bivw'i. of Wacwiiii, npi>"'ired for C'e appellant, and :Mr. If. A.Howie, of Wanganui, for the respondents.

MOTION KIR NKW TiilAj,. The l'V.!' Court nave judgment in the caw of 'VlioimiH lirown anil William •irown. cf Opoilki. v. .1. Themes, on >i motion for « iinv ("rial. 11l I he Siioivnie Court (Hiim'lton Jwli. fio 1 n _■( r : i'M ].'"vn !irrr'.';!it an action against Joseph Thorns to recover :: >■ a tu"t ! i !' .•'inn of o ii'v'titT- ~ vpv!> forners at Onoliki, and on July 2.', W!0, they employed ilefeii,vinl to or e;;c!v,iu::e their i'ann On fpptninlvr 10. H'lG. the defcixbnt alleged that ih<"' ''"re 'ih'!im"".l io exclmmj.) their firm of fH'fi acres at Opoliki for ,VM acres ?.t Goi'doM'm, rear Hamilton, and it was fmUuT alloyed that'the ill's were induce'! to make Uir> exchange hv (hi nJltv-H f.i'se representations of Frank C'o:>por as a servant of'the defendant. '!%• plaintiffs ir'vo an cqu valcit of. ne.ro for the flof.lontcni f/irm, .inrl "oircd tlmt it. was not worth liioro ;ha'.i ■SB per acre. Th" case was heard hy }Tis Honour Mr. Justice Cooper and a jury, who returned a verdict in fa'-o-r cf the plaintitl's, awarding lliem i':UBS damages for

liegb'OTnce, and acquitting Cooper of fraudulent misrepresentation. Tlii) defendant applied for a new trial on the grounds that the verdict of tho jury whs against tho weight of cvidcnco and that tho damuges awarded by tho jury were excessive. It /tie this inotiou that was heard b}' tho Full Court. Tho Chief Justice and Mr. Jufjtico Hosking rofusod tJie motion for a now trial, mid. Mr. Justice Sim was of opinion that a new trial should 1)0 granted. Tho majority decision of the Court holds, and tho damages awarded by tho jury woro reduced by .£IOO. * At tho hearing Dr. IT. D. Bamford appeared for Drown Bros., and Sir C. P. Skerrctt, K.C., with him Sir. W. Vallance, of Auckland, for Joseph Thornea.