CIVIL SITTINGS.

Marlborough Express, Volume III, Issue 106, 7 March 1868, Page 7

CIVIL SITTINGS.

TUESDAY, MARCH 3rd, 1868. THE BLENHEIM WHABES—ROBINSON BROTHERS V. NATH. EDWARDS AND CO. This case had been adjourned from the last sitting of the Court, and Mr. MoffLtt, who appeared for the defendants, said he had received notice of discontinuance of action; he therefore considered his client was entitled to costs.—Costs granted. CLAIM JOE RENT GEORGE JAMES V. HENRY KENNEDY. Mr. Moffitt, for plaintiff, said this was simply a question of rent, and he believed no defence had been filed. On July Ist, 1867, £3B 15s. was due, including a sum of £5 for ground rent, and on the Ist October a further sum of like amount was also due. There being no defence, judgment was given for the full amount, with £3 17s 6d. costs. THE MARLBOROUGH WHARFS. W. H. EYES, (superintendent) g. bennett AND J. SYMONDS. Mr. Conolly appeared on behalf of the Government, and Mr. Moffitt for the defendants. Mr. Conolly in stating the case, said this was a claim for money due (£74 ss. 3d.) in respect of wharfage dues. The defendants had pleaded not indebted, and assert that the plaintiff had no right or title to claim wharfage dues. The action was brought by the Superintendent to recover dues upon goods received and sent away by the defendants within the precincts of a declared wharf. By the act of 1866, the Superintendent of each province was empowered to levy rates upon goods landed or shipped at any declared wharfs. Similar powers were contained in a later Act of 1867, section 30, which came into force on the 10th of October last. As the claim extends from the 2nd of November, the later Act is more especially to be looked at. By Act of 1866, section 27, and by the 32nd clause of the Act of 1867, both Acts being identical, similar provisions are made with respect to the limits of wharves, and it is stated that these powers are given to the Superintendent, for the prevention of doubts and disputes. I don’t think there can be any question as to whether the place where these goods were landed, was within the limits of a proclaimed wharf, but whether the Superintendent had the power to include such land within the limits of a wharf. There were two proclamations by the Superintendent. The first one describes the boundaries of the wharf at Blenheim, by reference to the numbers of certain town sections. The latter proclamation revoked the former, and the description of the wharf was made more general, including the whole river and 5 chains on each side. Mr. Moffitt: I would ask for the production of the originals. Mr. Conolly : I apprehend the Government Gazette is sufficient, but without reference I can’t say. Justice Ward: The mere production of the ‘ Provincial Gazette ’ would not be sufficient. If Mr. Moffitt will admit the originals without question, it may save trouble to produce them. Mr. Conolly: The defendants are the owners of Section No, 36, Town of Blenheim. On this land they have a warehouse. This land is a short distance from the river; a piece of water extends from the river '■upon which the warehouse abuts. This < CDeej^? MJ pi^£^ w j^a ! tqr was formerly not navigable thereTbut they caused the bed to 'lie lowered, though not on their own land, and by that means small vessels are able to ascend a short distance. They erected in Mrontof the warehouseTa projecting landing stage supported on piles within their section, but projecting over the water, which is not within their section. Vessels can pass up this water and land goods on their stage. By the proclamation, this inlet ia within the limits of the whpf A vessel of the land within the limits of the proclamation before it can ship or unship goods, and the stage projects over such declared wharf. The second proclamation undoubtedly includes all the stage. But even according to the first, the end of the landing stage and the water below where vessels land and discharge cargo come under wharfage liabilities. I shall prove that goods were landed within the limits of the proclaimed wharf. When the proclamation was issued, a public wharf had been erected at the expense of the province, and the contest between the plaintiff and the defendant was whether the proclamation of the Superintendent entitles him to claim wharfage dues upon private land. The defendants say that whether the goods are landed on a private wharf or not they are

not liable. They have several times refused to allow the officer appointed for the purpose, to ascertain what goods are passed over the wharf. In one case the steamer is charged the full amount of her tonnage, but they are willing to accept the defendant’s statement as to what quantity was landed. Justice Ward: You can call the defendants as witnesses.

Mr. Conolly: It is really a question whether that land is exempted, and I may say, three-quarters of the goods of the province are to pay no dues. By the 28th section of the Act of 1866, also, the 33rd section of the Act of 1867, no one can erect a whai’f without the permission of the Superintendent; and no one can claim a right to interfere with private property. The defendants had no right to erect any wharf.

Mr. Dobson, on being sworn, said I am a Surveyor, residing at Blenheim. This plan of section 36, Town of Blenheim, is made by me. The red line represents Messrs. Edwards and Co.’s warehouse, and the yellow part the landing-stage. There is a dotted line marking certain boundaries. The blue line is the water line in the original plan of the Town. The water line was edged by vegetation, flax and rushes 11 years ago, but at present is risen, and a portion of this is covered. I cannot say how long the present has been the water-line. When I set out the section for the warehouse lately, I was detained some time from being unable to get to the line from water standing higher than it did 11 years ago. I have measured the landing stage, and find it pi’ojects beyond section 36, on the SE side 9ft 9in. on the NW 9ft 6in. The piles that support it are within the section. I’ve seen vessels come up this inlet to land goods. They lie off at the end of the landing stage and land goods at the end of the stage. They cannot land goods at the end of the stage within the section by swinging them over the side. The steamer would have to lie on the proclaimed wharf. Mr. Moffitt: I object to the second proclamation issued under the Act being received. Upon examination of the original copy now produced, there appears to have been an alteration in the figure “7,” which originally was something else. Mr. Conolly: I presume the erasure was made before execution.

Judge Ward: In such an instrument as this, an erasure should be explained by the parties tendering it in evidence. Mr. Dobson (by Mr. Moffitt) : When the blue line was laid down in the original plan, the basin was then occupied for mooring a large boat. Where it was moored, it is deeper than about the stage. I have seen the water lower than the present line. I have seen it away from the landing stage, but not recently. By Judge Ward : This is a tidal river. The rise and fall is slight—not much more than a foot in direct height. This foreshore is almost flat. This ■ place is flat, even at low water. There is a very small amount of land left bare between the two. Mr. Conolly : 1 hand in the oi iginal proclamation. If that proclamation is bad, the previous one holds. If the second is doubtful, then it does not revoke the first. I tender the second in evidence. Mr. Moffitt: I object to the second; I admit the first. Mr. Conolly: I tender the erasure as it stands, and if rejected, the printed copy. Mr. Moffitt: I maintain the second proclamation does not contain any of the provisions of the first. Mr. Conolly: I withdraw the written copy and produce the printed one. The Act states that proclamation shall issue by publication in the ‘ Government Gazette.’ Judge Ward: You have produced the written proclamation as the original. If that foundation is worthless, how can you rely on the superstructure ? Mr. Conolly: The first is admitted. I rely upon it. Mr. Moffitt: As no continuing clause is provided, the proclamation ceased to be in force after the Act of ’66 lapsed. Judge Ward: Are not some of these dues recoverable under the Act of ’66. Mr. Moffitt: The wharfage dues commenced on Nov. 2nd, and in fact no new impost of wharfage dues has been made under the Act of Mr. Conolly : I am prepared to give up the case, the objection being fatal. No copy of the second Act reached these parts till six weeks had elapsed, „ and there was no opportunity to have a new proclamation and wharfage dues fixed. The new Act does not continue the boundaries of wharfs or dues. It would only be wasting the time of the Court to raise arguments. I am prepared to admit that the second proclamation had no case. There is at this moment, no wharf in Blenheim. Judge Ward: There is no continuing clause in the Act of 1867 ; and the procla-

mation under the Act of 1866 has therefore lapsed. No proclamation under the new Act has been proved; and until that is done, I cannot hold that there is a wharf, or a possibility of levying wharfage dues under this Act, in the Port of -Blenheim. Mr. Moffitt: Another point I would have raised is that the proclamation should show that it was made for the purposes of the Act. Mr. Conolly : That is taken for granted, if it recites a certain Act, and by virtue of that Act defines certain limits, &c.

Mr. Moffitt: But it does not even do that. Judgment was then given for defendant, with £4 15s. costs.

Mr. Conolly wished that the Judge would represent to the Government how embai’rassingto barristers, magistrates and justices of - the peace, the delay is in the publication of Acts when they have received the Governor’s assent. For two months we may not know whether we are acting under law or not, as was the case in this instance. The Court then rose.