SUPREME COURT SITITNGS, Monday, March 20, 1848. Before Mr. Justice Chapman, and a special jury, William Fitzherbert, Esq., foreman. Scott v. Grimstone and another.

New Zealand Spectator and Cook's Strait Guardian, Volume IV, Issue 277, 25 March 1848, Page 3

SUPREME COURT SITITNGS, Monday, March 20, 1848. Before Mr. Justice Chapman, and a special jury, William Fitzherbert, Esq., foreman. Scott v. Grimstone and another.

This was an action of ejectment to recover possession of £ piece of ground upon Lamb-ton-quay, in this town, being a portion of a larger piece of land included in a grant from the Crown to the plaintiff, together with £500 for mesne profits. , It will be remembered that this case came on for trial here in March, 1846, when the plaintiff was non-suited'; the question has sinca been before the Court in another form, | wheiH after* a protracted. trial, t&e Jury 'were ! dismissed, having been- locked up 24.hour,s without coming to any decision. The case was again set^own for trial at the present sittings and appointed for this day. * Mr. Scott appeared' in person, and he was assisted by Mr. Hart and Mr. King. Daniel Wakefield, Esq., appeared on the part of the defendants. . Mr. Scott said — The action wts brought to recover possession of a piece of land upon ' Lambton-quay, under a, deed of grant from the Crown, together with £500 mesne profits. He would produce evidence that the land sought to be recovered was within the grant, and that the annual value was of a certain amount, He apologised for appearing personally, but he had already been put to great expense in" prosecuting his claim, and the case appeared to him a very plain one, hardty requiring the aid of counsel. He then produced the deed of grant, which was put in and read, and proceeded to prove his case. Robert Park sworn — Is a Surveyor ; knows the plaintiff and defendants ; knows the property in respect of which the action is brought ; the premises described in the issue are contained in the grant produced ; there are . 40 feet frontage; it runs back about 110 feet; has made a survey of the laud ; the plan produced is a working plan of his survey ; it was made in 1843 for Mr. Commissioner Spain's Court at plaintiff's request ; has made a reduced plan ; the plan produced is that pltt^ the land was pointed out to witness by two persons — E Tako and Pomare, now of Chatham Island ; has understood the plaintiff paid for the land ; knows that plaintiff made a claim to the land in 1841 ; is a land agent; knows the value of land ; it is difficult to give the real value of land here ; it was worth a pound per foot frontage formerly ; knows the land adjoining; it is town acre No. 486, and belongs to Dr. Evans ; it was let for one pound per foot ; witness thinks it is now let for 15s. per feot ; the land in question is worth more than some other land on the beach ; it contains more flat land ; the frontage is an object ; knows Mr. Grace, one of the defendants ; the land has been occupied by him since 1841. Cross-examined by Mr. Wakefield — Is not aware of any land being let for 10s. per foot ; does not know what the Government pay E Tako ; the word red in the Grant is very indefinite in meaning ; the description in the Grant is very absurd ; it does not apply to the plan ; that part of the plan which is tinted red is about an acre and a half ; has not ascertained whether the description in the Grant contained that quantity ; could draw a plan ac- ' cording to the words of the Grant ; the pa had not been burnt down at the time witness made the plan before produced ; remembers there were straggling huts as far as Johnson and Moore's ; the warre now standing on the land might have been a part of the pa ; the canoes of the natives were generally hauled up between Mr. Grace's and the creek; if ( the line of the warre was produced to the beach it would take in one half of Mr. Grace's house ; the warre is on the north side of Kumutoto creek ; if the boundary of the beach road were deemed the beach it would be within ; he had taken the Company's map as bis guide in making plans ; there was 60 feet roadway left along the beach ; the line of high water mark is altered since 1843. Re-examined by Mr. Scott — Has no doubt whatever that Mr- Grace's house is included, looking at the description of the plans. Francis Bradey sworn — Is a settler and land agent ; has been letting his own property on Lambton-quay for some years past ; knows the premises belonging to Mr. Grace ; has let his own land at one pound per foot ; now lets it for 125. ; the depth is about 50 feet ; his property extends from Mr. Lloyd's to Donald's ; Mr. Grace's property is of about the same value as his own ; its greater depth would increase its value ; witness arrived in the colony in March, 1840 ; he came out in the Adelaide; Mr. Grace took possession

soon after the town was surveyed ; he remembered plaintiff upon his arrival ; had heard of his claim ; Donald's house stands where the Club House stood ; witness was anxious about his own ground ; . his tenants subsequently refused to pay him ; he met with a copy of the Gazette in which the plaintiff's claim was set forth ; Mr. Spain told witness the plaintiff could not go beyond that ; the copy of the Gazette produced is similar to that shewn to witness by Mr. Spain ; who told him plaintiff had»no right to interfere until he had given his decision. The Gazette of the 22nd June, 1842, was then read. Charles Ernest Yon Alzdorf sworn — Is a land agent extensively employed here ; knows Mr. Grace's premises ; they are the premises described in the issue ; witness knows Kumutoto Creek ; it lies between the fence of the Police Station and Mr. Grace's premises ; thinks from 12s. to 15s. per foo.t of fcbntage is the annual value ; bafc himself leased a piece of ground at 12s. per- foot ; he considers^Mr. Grace's of equal value. ' * , . Edward Lowe sworn — Is a clerk ; knows Mr. Grace and Mr. Grimstone, the defen-' •dants>; witness served- the notice produced upon Mr. Grimstone on the 7th January, 1846. Cross-examined by Mr. Wakefield — Does not remember whether Mr, Grimstone said ; anything on the occasion. The- notice was put in and read. Mr. Scott said this was his case. Mr. Wakefield submitted that the plaintiff must be non-suited upon the ground that he had made no demand of possession; and 2ndly — that he had sued the wrong parties ; the title to the property not being in Mr. Grace — a fact which had only come to his knowledge the previous Saturday. Mr. Scott contended that his notice was a sufficient demand of possession, and -urged upon ihe attention of the Court the fact that Mr. Grace had himself applied to be allowed to defend this action. The Court gave Mr. Wakefield to move to enter a non-suit, and allowed evidence to be taken as to Mr. Grace's title, in order to save the expence of a new trial should it appear necessary. The evidence on this point was not to go to the jury. Robert Suckling Cheesman sworn — Is a solicitor ; produced au assignment from Mr. Grace to W. Fox, dated 12th November,, 1845 ; a mortgage was created in 1<843 to. "^lr.^Fox, . tn trust"foTcertairi purposes ; the ' assignment authorizes the assignee to defend all actions brought under the Crown grant. The assignment was then read. The Court thought the case was not affected. Mr. Wakefield said the Court was against him, and protested against the case going on. Mr. Wakefield said the grounds of his defence would consist in certain evidence of the purchase of the land in question by the New Zealand Company. Captain Hobson's letter assuring the land included in Mr. Scott's grant to the New Zealand Company was put in and read. Mr. Wakefield then called the following witnesses. Alfred Wills sworn — Is a surveyor, employ ed by the New Zealand Company ; the map of the town of Wellington now produced is the Surveyor-General's map, made by Capt. Smith ; witness knows the grant produced ; has perused an office copy ; it is part of the town of Wellington ; there is a reservation for a road along the beach from Willisstreet to Tiakiwai ; looking at the grant the place and description differ ; the western boundary is wrong ; the deed conveys one acre and a half ; the quantity tinted red is less than that ; the coloured red, means the part coloured ; the red line has nothing to do with the land described ; the pa is on the north side of the creek ; the land commences from the mouth of Kumutoto Creek ; this would include the pa ; the plan gives onethird more than the body of the deed ; the piece coloured red does not include Lambtonquay; witness could not put grantee in possession, the western boundary being incorrect. Cross-examined by Mr. Scott — The Sur-veyor-General of the New Zealand Company made the reservation of the road ; a portion of the pa was on the south side of the stream ; does not know for certain, but believes a pa was on the south side ; knows of no other creek called Kumutoto Creek ; witness would commence at the entrance of that creek ; the next creek is by Johnson & Moore's ; has no doubt that plaintiff's claim would go to the next creek ; he would go up the creek 100 feet ; the boundary would go beyond Johnson &■ Moore's ; the brow of the hill is no doubt the west boundary ; knows Mr. Grace's premises. By the Court — Knows Kumutoto Creek, and Mr. Grace's house ; it stands between the two creeks ; the first house you come to fxom the creek is Mr. Grace's.

William Mein Smith sworn — Was formerly Surveyor-General to the New Zealand Company ; there is a reservation of road from Willis-street to the end of the town ; it was intended to be 60 feet ; the land in the grant is part of the town of Wellington ; does not think the description and plan agree ; the brow of the hill is wrongly described ; witness first saw the land in 'January, 1840; knows Kumutoto Creek, there was a man of the name of Smith living on the south side of the creek in the pa ; the pa was on both sides ; it was a small pa ; it extended on the north side 40 or 50 yards ; it would include Mr. Grace's house ; knows the warre at the top of the hill ; is quite satisfied the pa was on both sides ; the 60 feet reserved for the road commences at high water mark ; witness could not to' his satisfaction put a party in possession ; there is about one-third taken off by going along the brow of the hill ; knows Mr. Grace's house. Cross-examined by Mr. Scott — Witness here read the claim as gazetted ; the mistake about the western boundary in the grant is no doubt a clerical error ; the claim gazetted and the grant are the same ; ' the boundaries extend from Kumutoto Creek ; the. next creek is about Johnson & Moore's ; from 100 feet up that creek witness would then go towards Kumutoto Creek ; has no doubt that Mr. Grace's house is within the grant ; witness reserved the Toad at his own instance, knowing that a road must be reserved; did not do it at the instance of Government ; the pa extended on both sides of the creek when he arrived ; the flax houses &c, mentioned | in the grant might have been there : it certainly adjoins the pa ; the house on the hill was then standing ; it was a large house ; thinks it was a dwelling house ; has seen several smaller ; thinks there is about 2rf acre and a half included within the boundaries. Witnesss could not satisfactorily put a party in possession from the description, in the deed. Henry Tiffin sworn — Is a Surveyor ; has seen a copy of the grant ; has attenapted to lay out the land as described in the gjrartt; is confident he could not put any one in possession of laud that could tally with the description; witness must find out where the^ 100 feet up the creek commences; at 100 feet up it measures 314 to Kumutoto Creek; if he drew a line to the first turn of Kumiitoto Creek witness finds he has 280 . feet ; there .was originally" a. turning in Kumutoto Creek about 40 feet "from the commencement ; is*not aware of the value of land; could not put a person in possession from the description Cross-examined by Mr. Scott — Witness reads the claim as gazetted, and states the difference between the grant and Gazette ; thinks it is as likely to be a clerical error as a typographical 'error ; the word "about" is used ; Mr. Scott's purchase appears to have been made in 1831, there was no competition in those days, and no doubt Mr, Scott was not particular ; is not aware of apa on the south side; cannot say whether there was a pa on the south side in 1831 ; commencing from Kumutoto witness would come to the creek at Johnson & Moore's, he would go up the creek 100 feet, and proceeding towards Kurautoto Creek, he would be stopped there at a distance of 314 feet; the house belonging to Mr. Grace is certainly included in the grant. William Allen sworn — Is a publican : witness arrived in the colony in the Cuba in 1840 ; knows Kumutoto creek ; there was a pa on both sides of the creek in 1841 ; that part of the pa on the north side of the creek extended nearly to where Leight's shop now stands ; there were straggling huts about ; the warre now standing on the top of the hill was not there then ; he would consider it a part of the pa. Cross-examined by Mr, Scott — There were pas on both sides of Kumutoto creek. William E Tako, an aboriginal native, being examined by an interpreter, said he was a Christian once, but he had afterwards lived with two wives and he thought he was no longer a Christian. He was then sworn — Is a native chief of Kumutoto pa ; his boundary at the present time extends to Young's public house on one side, and to Mr. Grace's on the other; before the Company purchased, it extended to Barrett's wharf; after it was purchased he considered his boundary to be from Young's house to Grace's ; does not consider the warre at the top of the hill to be his property, it belongs to Mr. Scott. Cross-examined by Mr. Scott — he never consented that his land should be sold to the New Zealand Company, Epuni and others used his name without his authority ; he did not sell any land to Col. Wakefield where Mr. Park laid out the acre he is now on ; he was paid by Governor Fitzroy for his land ; Pomare was the owner of the land when he first came ; he had no land be stopped at Kumutoto with Pomare ; he afterwards went to Taranaki, and the whole of his tribe came down ; they went to Wairarapa ; at the time

Pomare lived ,at Kumutoto there was a large bouse where flax was kept: he did not know of Scott at the time, but some white men were stopping there ; the house he came to and found on the ground was a wooden house, and another house was standing, on the opposite side of the creek was Pomare's pa ; part of the wooden house might be standing where Grace's house is standing and part nearer the - creek ; had heard that Pomare had sold Mr. Scott some land ; did not hear it from Pomare ; it was owing to some disturbance that he heard the land belonged to Scott ; a man had taken some potatoes and the maories told him that the land belonged to Scott : Ngaki showed him the boundaries ; the first boundary commenced at Kumutoto creek and went to the small stream at the baker's shop ; does not know the name of the baker : there is a blacksmith's shop next to it ; there was no creek, there was a hole made by his father, the drain was made by him because the rain came down the hill aqd spoiled his pumpkins ; Pomare and himself showed Mr. Park the boundaries ; witness did not believe that Pomare had sold the land when he said so ; when he first saw Scott Ngaki pointed him out to witness as having purchased the land, he wanted witness to build him a house ; John Wade and Dickey Barrett pulled th« house down which belonged to Scott ; when he came back from the Taipu he was angry with Barrett for having pulled the house down. John Jones sworn — Is a merchant^; is acquainted with Mr. Scott ;" knows that Mr. Scott claims land at Kumutoto ; witness hokls no security which would deprive Mr. Scott of his interest in this suit. Kauffman Samuel sworn — Witness purchased the land in his occupation (a portion of the land included in the grant to plaintiff) from Messrs. Waters and . Smith ; he saw Mr. Scott, who wished to know what witness was going to give for the purchase ; Mr. Scott led. him to believe that the property was Messrs. Waters and Smith's. Cross-examined by Mr. Scott — Witness paid Messrs. Waters and Smith a rent of £3 per week ; he asked him (Mr. Scott) no questions as to whether he had any claim to the land ; the property was bought at public auction ; witness did not recollect what took place ; he bought it for £440 ; there were no bidders. This closed the defence ; Mr. Scott in a neat and forcible address commented on the evidence, and Mr. Wakefield ably replied. ' Hfs Honor summed" up tnVcase at considerable length, when the jury retijed, and after an absence of two hours returned a verdict for the plaintiff. Damages from August 1840, (the date of defendant's possession) to July 1845, £123, and from July 1845, (the date of the grant) to the date of verdict £77, making together £200. Mr. Wakefield obtained leave to move for a non-suit.