SUPREME COURT.

Globe, Volume XXIV, Issue 2618, 28 August 1882, Page 3

SUPREME COURT.

CIVIL SITTINGS. This Day. [Before his Honor Mr Justice Eiohmond.j The Court opened at 10.30 a.m. FAGAN T THE WASTE HANDS BOARD,

In this caae Michael Fagan was claimant, and the Waste Lands Board of the district of Canterbury defendants. In 1878 the claimant purchased five sections of land from the Waste Lands Board, containing 2240 acres. The land w:-s situate on the Bakaia, and claimant paid at the rate of £2 per acre for the same. The land was not surveyed by the Chief Surveyor until 1880, when it was found that 1244 acres was short of the quantity the sections purported to contain. The claimant, therefore, made application to the Waste Lands Board for a refund at the rate cl £2 per acre. The total amount, with another section, came to £2779 2s 2d. The Commissioner of Crown Lands referred the schedule containing the Chief Surveyor’s note of survey, together with the claim under date of September 23rd, 1580, asking that an imprest might bo granted to enable the department to pay the claim, as otherwise it would have to be paid out of current revenue. The letter of the Commissioner of Crown Lands to the Under Secretary pointed out that prior to the survey the land had been

swept away by a flood in the Bakaia. To this the Government replied that they did not think that flood damage oonld be recognised, and pointing out that there was no evidence on the papers that the land was not there. The Commissioner of Crown Lands drew the attention of the Minister in a future letter to the plans sent therewith, the application plan showing the lend ae sold to the applicant, the other plans showing the aspect of the land as found by the Chief Surveyor, in which a hrgepartof the land pu'ehased by Fagan was shown as river and river bed, and the Commissioner desired to know whether river and river bed was supposed to be taken as "land.” The Surveyor-General, in a memo, dated November Ist, 1880, to the Minister of Lands, stated that there was no doubt as to the case, and the money should bo refunded. On this a minute was made by Mr Bolleston, as Minister for Lands, that be agreed with Mr McKenow, and that the money should be paid immediately. After some further correspondence Mr Marshman, Commissioner of Crown Lands, forwarded the voucher for the claim. A memo, from Mr Batkin, the Assistant Comptroller of Revenue, then followed, in which he pointed out that no reply had been made to the apposite remarks of the Minister for Lands that the land was there still, notwithstanding that the face of the land differed considerably from that intended

by the purchaser, and that the SurveyorGeneral, in computing the land, had excluded from his survey the river which had encroached and the shingle beds formed. Therefore the Assistant Comptroller was of opinion that, though the claimant might have an equitable right to a refund, but nothing in law. The Waste Lands Board on the contrary held that the new channels of the river and river bed formed by the flood was no “land,” such as was purchased and paid for by the applicant. The Receiver of Land Bevenue also concurred with the opinion of the Board that the refund should be made. The Government however held that the license to occupy having been issued to the applicant, it was at his risk what took place between that time and the issue of Crown grant. They therefore declined to pay the refund asked for by the claimant. Hence the action was brought to recover the sum as stated. For the claimant—Mr Garrick. For the Waste Lands Board—Mr Joynt, with him Mr Martin.

Mr Garrick having opened the case for the claimant, called evidence in support of his case.

John Marshman, Commissioner of Crown Lands for Canterbury, gave evidence on the matter, and produced a number of official documents.

In cress examination by Mr Joynt the witness said that on the original sketch map there was water all round tho sections purchased by tho claimant, which. were situate at the foot of the terrace, between the river and an old river bed.

John Holland Baker, Chief Surveyor of the Land District of Canterbury, produced the application and other maps.

A. F. N. Blakistoa also gave evidence in the case. This closed the claimant’s case.

Mr Joynt said that be should not call evidence if it was admitted by Mr Garrick that the flood took place after the purchase, that was in 1869. Mr Garrick said that ho should like to consult his client before he made his admission.

Mr Joynt, in reply to a request from his Honor, said he would call evidence as to the time of the flood, As.

Wm, Gerard deposed that the'river flatjpurchased by Fagan was on his run. The greater part of the land lay between the creek and the river. In 1878 the river fl-t was in a block, and not out up by streams. Between the time it was bought and the survey it became intersected by streams. It was originally a river bed flat, and was only a few feet above the River Bakaia itself. Cross-examined by Mr Garrick—The section previous to 1879 was not ovei flowed by the River Bakaia. The flood in 1879 was a very high one indeed. After the flood the land was in the same state as shown on the map, but it had altered again since, and tho water had gone back into its original channel. The soil was principally sand. It was not agricultural soil, and very poor grazing soil when Fagan took it up. It was covered on the flat with moss and short stunted grass.

Mr Joynt »aid that this was all tho evidence he had to offer. Hia Honor said he would sit at 10.30 a.m. next day, to h.ar the legal argument in the case.

The Court then adjourned till 10 30 a.m, .omorrow.