COMPENSATION COURT.

Globe, Volume XXII, Issue 1915, 14 April 1880, Page 2

COMPENSATION COURT.

Wednesday, April 14. [Before His Honor Mr Justice Johnston, and Messrs R. Wilkin and Thomas Oalcott, assessors, j A Compensation Court, under the Public Works Act, was opened at 11 a.m. NEW ZEALAND AND AUSTRALIAN LAND COMPANY (LIMITED) V RAKAIA AND ASHBURTON FOEIIS RAILWAY COMPANY (limited). Tins was a cusa for compensation under (ho Public Works Act and the District Railways Acts, in which the New Zee land and Australian L ind Company were the claimants, and the R -kaia and Ashburton Forks Railway Company respondents. The claim was founded on clause 27'h of the District Railways Act. The case for the claima t was that by the construction of the railway from the K.kai) t iwnship to the Ashburton Forks, the land of the claimants had been cut off from the use of a certain road called (ho Alford Forest road for a distance of 174 chains. Under these circumstances the claimant claimed from the reap indent the sum of £B7O as damages for the alleg’d deprivation of the land of the right to the road, and thus injuriously depreciating the value of the land. Mr George Harper appeared for the claimant. Mr Garrick for the respondent.

The status of both companies was admitted by consent. The statement of the case up to the coming into Court was also admitted. Mr Harper then opened the case for the claimant, stating that the claim was made for deprivation by the railway of frontage to the public highway between Alford Forest and Soul h Rakaia. The frontage of two entire sections belonging to the claimants, and a part of another, was taken away by the construetion of the railway by the respondents. The land injuriously affected by the works of the respondents was of value, because it was suburban land. No frontage could be given by the claimants if they cut up the sections into building allotments, because the railway came right in front of the sections. If the claimant did this they would have to make a road from their own section, thus suffering damage by diminution of their property. His Honor pointed out that there would come a question as to whether, by level crossings, the cleimants did not get access. If the company gave them facilities by means of level crossings their damage would be lessened somewhat.

Mr Harper should be prepared to meet this, which would no doubt be brourht forward by the ether side. The country was of an undulating character, and there had been embankments and cuttings made, thus rendering their access to the road very difficult.

His Honor said that what it came to was this, that prior to the railway being constructed the claimants had access from all parts of their sections to tha road. Then the question came as to the measure of damages, and this would have to be decided by comparison of ease of access to the road now and before. Then again they would have to consider whether the construction of the railway would not bo an advantage to the land. Mr Harper would be prepared to meet this by showing that there was Great Southern Railway to a station upon which the land was contiguous, so that they had railway accommodation sufficiei i for all their wants. Betid* a this, the district railway was under a private company, which had power to rate the property adjoining its line, which had been done with respect to this land; hence this was a set off to the advantages, if any, derived from the construction of the railway. He would desire to point out that had the railway been put in the centre of the road they could not complain, but their claim was based on seeion 27, the lino having been put right up to their boundary fence. His Honor said that as there was a dispute as to the right of claimant to claim compention, it would be better to clear the way at once, and have the argument now. Mr Garrick submitted that section 73 of tho Public Works Act, 1876, provided practically that no compensation should be paid for work done on any road. His Honor did not see that this applied. Mr Callcott said that the section read by Mr Garrick referred to a claim for taking a road for tho purposes of the railway. That was not the claim made. It was for damage done to their land, and not for taking the public road to which tha section quoted by Mr Garrick applied. His Honor agreed with Mr Callcott. Mr Garrick should submit that this was a claim for compensation for making a railway along a public road, and that no compensation was able to be claimed. The tenor and bearing of legislation was that where a railway was run on a public road there could be no claim for compensation for running over that public road. His Honor said that it was monstrously unjust if the law was as Mr Garrick construed it, as it deprived a man of all compensation for injury. Mr Garrick could not help whether it was unjust or monstrous. The law was, he submitted, as he had stated it. His Honor thought that it was the same here as in England, where tho soil of all the roads was not vested in the Crown.

Mr. Q-arrick pointed out that by sec. 79 of the Public Works Act all roads were made district roads and vested in the Crown. His Honor said that altered the matter considerably. Mr Garrick suggested that the question of compensation should be settled, reserving the point raised. His Honor said"that, so far as he could see, the meaning of the section was this, that where the ownership of the soil had been vested by any private individual in the Crown no compensation could be claimed for any railway formed over it. Such was his reading of it as at present advised. Mr Harper said ha was prepared to meet the argument of his learned friend, and had a largo number of English oases to cite in support of his claim. [Case cited, Regina v. Eistern Counties Railway Company.— “ Hodges on Railways. ”J After some further argument it was agreed to state a special case, raising the point of law mentioned by Mr Garrick. His Honor said he must not be understood to be giving a judicial decision on the point raised, but rather as eliciting the points of law likely to be brought forward. Mr Harper was proceeding to call evidence, when

Mr Garrick said the respondents would make a half-chain wide road along the frontage, and pay compensation for nine acres of land, subject to the decision of the point of law raised by the respondent. Mr Callcott suggested that it would be fair to make the road throe quarters of a chain wide, and put a fence. Mr Garrick would undertake to put a wire fence. He desired to point out that they were giving the claimants everything they asked for.

Mr Harper pointed out that they were going to put a road a chain wide. H's Honor said he thought if the claimants got a road three quarters of a chain wide, fenced the section, and paid for the land thus taken whatever might be fixed by the assessors, subject to the decision of the point raised there, it would be a fair conclusion of the matter.

Mr Harper said that he was instructed that the company would prefer the case going on to decide upon the money value of their loss. His Honor said of course the Court would hear the case it necessary, but he could not help thinking it would bo better to taka the offer made. Mr Garrick said that he was instructed to grant the road three-quarters of a chain wide. Mr Oaloolt said that he would submit the following terms to the parties, the road to be made three-quarters of a chain wide, formed and metalled, a wire fence to be erected, and payment made for the land taken whatever the assessors fixed. In the event of the respondent not completing these works wi'hin a time to be settled, a sum of money, say £BOO, to be paid by the respondents to the claimant.

It was agreed to accept these terms. The Court then proceeded to consider the value of the land—some thirteen acres—which would be taken for the road.

After some consideration, it was agreed to fir the price at £ls per acre.

Mr Oallcott said that after calculating the cost of making the road and the fencing, ho had arrived at a total of £522, which would be the amount payable by the respondent to the claimant in case the work was not done within a certain time.

His Honor enquired how a special case could be stated. Mr Garrick said that under section -19 he thought that they could lake the judgment of his Honor upon it. Hie Honor said he could see no power to get the case into the Supremo Court or before the Court of Appeal.

Mr Harper said in England it was done by maud amns.

Mr Garrick thought that under clauses 50 and 63 an arrest of judgment might be moved in the Supremo Court, and the argument then taken. Perhaps if Mr Harper would consent, an award might be made upon which the claimant might issue a suit, ami then a special case could bo stated.

His Honor said that perhaps this might be the best way. Mr Harper suggested that the award should be undo new, so that tha;a might be some finality. His Honor said as he left for Dunedin on Tuesday, if Mr Harper ard Mr Gtr.ick would settle the terms of the award by Monday, the assessors and himself would sign it. The case was then settled on the following

(■ run, viz. :—The respondent to pay to the claimant £2OO for the land taken for making the road ; a road three-quarters of a chain wide, to bo formed and metalled to the satisfaction of the Eoad Board. The claimant’s boundary to be fenced with hardwood or toti ra posts and six wires. If these works are not carried out within six months from date, the Bailway Company to pay claimant the sura of £525 10s costs, to be made part of special ease. The Court then adjourned until 1 p.m, on Friday.