A PUKEKOHE BUILDING

Pukekohe & Waiuku Times, Volume 6, Issue 255, 2 March 1917, Page 2

A PUKEKOHE BUILDING

An Encpoachment Claim

In the Auckland Supreme Court on Tu63(l ay las , before the Chi f Justice, Sir Robert Stout, an action iiri-if g ■ ut of Messrs Roulston Bros.' butchery premise', situated in King street, Pakekohe, being said to encroach the adjoining property b" 1 - 1 -ngiug to Mr R. Fulton, farmer, of Puni, and in the occupation of Messrs W G. Shotbolt and Co, came on for liearing. Mr E J. Prendergast, instructed by Mr J. 0. Haiidow, appeared for the plaintiff (Mr Fulton) ar d Mr R McYeagh representee the defendants (Messrs James and Duncan Roulston").

Mr Prendergast, in his opening statement, said that in the year 1911, the defendants erected new concrete premises on their land and negligently encroached with such building over the boundary ot the p'aintiS's land The wall of defendant's building encroached on the plaintiff's property for some 14 feet in length, the encroachment being about six inches wide iu its greatest part decreasing until the boundary line was crossed, where the encroachment ceased. It was further alleged that a water spout from defendants' building encroached on the plaintiff's property to a width of four or five inches; that the wooden struts had been driven in for the purpose of gainii.g support from the plaintiff's building; that a wooden building prected at the rear of the defendants' building was supported against the plaintiffs' building by a strut and that in 1914 a cesspit and refuse tank had been constructed which caused a nuisance. Plaintiff claimed £7 10s per annum for the period of the encroachment, £'2s for alleged damages and sought an inj unction restraining the defendants from continuing the encroachment. As an alternative the plaintiff claimed, if the injunction could not be granted, a sum of £7 10s per annum for the period during which the encroachment continued. Before the erection of the building, Mr Prendergast said, there had apparently been an old fence running up to a survey peg at the back through a wooden building which previously stood cn defendants' land and their fence across the building. A sketch was produced and counsel explained the positions of the-re-lative buildings and the line of the fence as it existed.

John Kirkwood Ledger, licensed surveyor, Pukekohe, gave evidence of his having made a survey of the property. Asked by His Honour how he determined the boundaries, witness replied by the pegs on each corner of Roulston's and a peg at the back. These, said witness, were put in by Mr Kelly, a surveyor, about five years ago and the pegs he Baw corresponded with the Land Transfer plan. By Mr McYeagh : Portions of the town were not a Government township. In reply to His Honour witness admitted that the Land Transfer plan did not include the section in dispute and that the boundaries were not at right angles Defendants' counsel contended that the real point wasjto establish the form and position of the fence and he stated that he could also prove long and undisturbed occupation

A suggestion by the Judge that the dispute was one for arrangement led to no effect on a conference between the parties and the case was then proceeded with. Norman Wade, architect of Auckland, gave evidence as to having inspected the property and having detected survey pegs between the plaintiff's and defendants' properties.

It having been mentioned that the value of the land in dispute was 6s and His Honour pointed out that in war time there should not be that fighting over that small piece of land.

John Routly, architect, of Auckland, deposed that he was architect for the plaintiff when his (plaintiff's) building was erected seven years ago In reply to the Judge he said he did not build close up to the boundary line but allowed four or five inches for spouting.

The plaintiff, Robert Fulton, in his evidence, confirmed the facts as outlined in the statement of claim.

With regard to the claim of £7 10s His Honour remarked as to the absurdity of the amount. A good deal of legal argument ensued as to the determination of the boundaries and the existence of old fences.

John Andrew, blacksmith, Waiuku, a former owner of the land, gave evidences as to the fences which he thought existed about 30 years ago. Wm. McNally, farmer, Pukekohe, stated that in 1901 there was a two-railed fence running from the back of the section and that such fence was forty feet from the street. Adam Maxwell Kelly, surveyor, Auckland, spoke as to the surveying of the land and stated that he fixed the survey pegs on the principle of occupation. There was, said the witness, no fence when he surveyed the property. This closed the case for the plaintiff and the proceedings were adjourned until the following morning (Wednesday). On the Court reassembling on Wednesday morning His Honour intimated that further evidence was necessary and he would give his judgment after the luncheon adjournment. This, His Honour did say that he held that the building had encroached on the plaintiff's property to a slight extent Under the powers conferred by the Judicature Act he fixed the boundary henceforth as running from the two pegs agreed upon by the surveyors, except where the building encroached upon plaintiff's land, in which portion the boundary was to follow the outer wall of the building, the defendant to remove the spouting which overhung plaintiff's land. His fixed the compensation in respect of the encroachment at £b. As the cesspit complained of had been removed, ho would allow only nominal damages of le. Plaintiff was allowed costs on the lowest 6cale.