ALLEGED TRESPASS.

Gisborne Times, Volume XXV, Issue 2130, 12 July 1907, Page 4

ALLEGED TRESPASS.

A QUESTION OF UOUNDAKI'ES. A cas«> of interest to contractors came before the S.M. Court yesterday. Kilward JL’uttrieks Joyce sued Bootson and Barron for ;ClB lbs lor trespass, in tlio alternative for royalty, in connection with tlio removal ot gravel or shingle from a Batutahi river bed. Mr. Finn appeared for tlio plaintiff, and Mr. Stack for the defendants and tlio Cook County Council. Counsel for the plaintiff, in outlining tlio case, said plaintiff was the owner of the property in question, part of sections 03 and 62, Crown grant. Gravel was takon from the land, and the defendant Boatson agreed, when plaintilf raised the question of authority, to pay royalty but subsequently refusod. Tlio land was identical with that which figured in a Supreme Court action a year or two ago. It was contended that the land did not come within the pro-

clnmation taking over a strip of land fora road along the banks, and that t-lio question of riparian rights did not arise. It was not for tho paltry amount of nival tv that the plaintiu was suing, it was the principle that in- wished to estahlisli. 10. |>. Joyce, plaintiff, sworn, stud that lie was the owner of subdivision lots of and 33, part of sections 61, (!•_>, 63 and 0-t. situated at Kaiteratalil, in the survey district of Waimata. He produced a certified eopv of tile Crown grant. Mr. Stock raised an objection, file Crown grant was in the name.of Mrs lanes, and there was nothing to connect plaintiff with tho property. Plaintiff said there were sundry transfers. At the death of the late [)r. fanes, tho land went to Mrs* limes, who transferred it to witness subsequently for a consideration. Mr. Finn overcame tlie difficulty bv producing the deed of conveyance to plaintiff. . Plaintiff, continuing lus evidence, said that lie visited lus i>roperty on March loth last, and saw the defendant Beatson, who had men at work carting gravel aw.ay in waggons. He questioned Beatson as to who had authorised him to take the gravel. The latter replied ‘'Nobody,” adding be was not aware lie was acting lllegallv. Witness asked, “Are you aware this is my land?” Beatson then replied that, lie was not, but as lie wished to finish tlio contract m hand ho would be quite willing to pay royalty on tho material. He mentioned that lie had carted about 1200 yards, and renuirod 800 yards more to complete the contract. Plaintiff asked what be considered a fair royalty, and lie said threepence per yard. Witness agreed to this, and it was understood that defendant, should keep a tally of tlie .material taken. Witness was satisfied to let him complete his contract on these terms. Questioned as to tlie exact locality from which the material was taken, plaintiff said it was between the banks of the stream, about' a chain and aha if from the bank. There were several largo holes put down there. This was oil witness’s side of tlie stream, and defendants had tlieir waggons on his property. On May 13th witness wrote to defendants for payment (letter produced). The reply he received was to the effect that defendants repudiated liability. They wrote: “The beach we are taking gravel from belongs to the County Council, and we ‘have their permission to cart from there.” (Letter put in.) Plaintiff (cross-examined by Mr. Stock) : I am aware that the County Council took part of the land from me by proclamation in 1901 for a road. I sav the strip the Council took only goes in width to the bank of the river, and does iyst comprise the river bed. It is not- the same spot as where the gravel was procured. Mr. Stock put in as documentary evidence a copy of tlie proclamation and the plan. Plaintiff, at his request, marked in pencil tlie spot from which tlie gravel was taken. Mr. Finn (to tho Bench): Your Worship will notice that there are no boundaries mentioned in the proclamation. It simply specifies tho land shown in the plan. The plan of tlie road only takes in the strip to the toil of the bank; there is no doubt about that. Plaintiff reiterated that the gravel was not taken fypm any portion of that proclaimed a roadway. The two were quite distinct. Mr. Stock, for the defence, submitted that, "as tlie question of title was involved the Court had no jurisdiction. The issue was whether the road boundaries terminated on the hank or comprised the whole bed of the river. His Worship could not he called upon to decide wliat the Supremo Court J udges had not elucidated. The point was: Which was the boundary of the plaintiff’s land, the land as it existed originally in 1871 (extending to a point which is now the middle of tho stream), or the bank as it is formed now. The main point was to define tlio boundary of the road taken over by County Council proclamation. Mr. Finn, on plaintiff’s behalf, argued that, there was no question of title involved. Tlie gravel was taken from tho land outside the roadway. If so it was a clear case of trespass. Even assuming that the question of title did arise—which counsel did not admit —the Magistrate was given certain powers of jurisdiction under tin. Magistrate’s Act- Mr Stock had referred to the" Supreme Court action. That case was fully reported in the Gazette law reports 1903, p--387. The Court of Appeal held that Mr. Joyce’s title extended to the middle of the running water. As to the road taken over by proclamation it had been liekl bv tlie Court of Appeal that there are no riparian rights attached to a public road. A case y. the Mayor of Dunedin, 24, N.Z. law reports, bore on the question that there were no riparian rights, Co*t holding "If a piece of land contact with a flowing stream is given for purposes of a road, and for such purpose only, it is very doubtful whether it would carry any rights.” The Magistrate: Very doubtful is tlie term used. Have Ito decide tho question, Mr. Finn? Mr Finn mentioned other cases, and submitted that no question of title arose. Mr. Stock said the whole issue was whether the County Council had proclaimed the strip of land to the centre of the stream, or whether it ■stopped at the hank of the river. On behalf of tlie defendants lie admitted facts concerning the taking of gravel. It was thereupon agreed to dispense witli tho witnesses. The Magistrate said lie would have to look into authorities. He reserved his decision till this (Friday) morning.