The Reporter

Southern Cross, Volume 2, Issue 28, 6 October 1894, Page 9

The Reporter

THE UNCLAIMED LAND ACT

AN INVERCARGILL CASE

A case of local interest came before His Honor Mr Justice Williams, in the Supreme Court, Dunedin, on Wednesday, in the form of a summons to decide that Rose Ann Johnstone had proved her title to section 5, block 3, Invercargill. Mr SolomOn appeared to move, and Mr Woodhouse opposed on behalf of the Public Trustee. Mr Solomon said that this was the first summons under the Unclaimed Land Act of last session—an Act of an extremely progressive character. No similar Act found a place in the Statute Book of any other part of the British dominions. The effect of it was thit where there was no known , owner of a piece of land the Public Trustee could cause a notice to he published in the newspapers calling upon the occupier to prove his title, and if he did not do so the Public Trustee could then claim the land. Giving full effect to that Act it meant State confiscation without compensation. In the present case the applicant and her predecessors had been in continuous possession since 1872, and had expended £750 on it. The Public Trustee now claimed that this property, with improvements, was his. The applicant contended that by virtue of her possession she had acquired a title by prescription, which the Public Trustee could not defeat. Mr Woodhouse submitted that the object of the Act was to enable the Public Trustee to claim for the benefit of the public lands which intruders might otherwise keep possession of ; that there was no hardship in ignoring possessory titles in New Zealand, where intruders always knew when their possession was wrongful. He pointed out that in the present case that it was known all along by the persons who occupied the land that their title was not a good one. Moreover, assuming that a 20 years’ possession conferred a title, as against the Public Trustee —which he by no means admitted—even then there was no sufficient title, since a 20 years’ title had not been proved. All that was shown was that a possessory title by persons claiming through Mrs Smith, wife of the first intruder, William Smith, and her possession only began on her husband’s death in 1875. The title derived from Mrs Smith was clearly only a 17 or 18 years’ title, which was really no stronger than a title of one day or one year. Learned counsel further contended that there were two persons against whom Mrs Smith, and those claming under her, including the present claimant, could assert no title—namely, the heir-at-law or devisee of William Smith and the heir-at-law, or devisee of the original owner. Against the latter he (Mr Woodhouse) submitted the statue would not run for 30 years had he been out of the colony or under disability in 1872, when the first intrusion took place. He also submitted that a title based on possession could only not be deemed a title within the meaning of the Act, but if a possessory title could be held to be a good title under the Act it must beat least a 40 years’ title, and here it could not be said to be longer than a 17 years’ title. His Honour, in giving judgment, said : —ln the present case what I have to decide is simply, Has a title been established to my satisfaction by the persons who are in possession ? It is admitted that their right (if any) rests upon the occupation, which was at its inception wrongful. It, therefore, at least lies upon them to prove that at the time the Act came into operation they had been there so long that they could not then have been ejected by any person who had the real title. In that they certainly have failed. Apart from the question as to whether the original owner or his representatives could have ejected them there can, I think, be no doubt, on the authority of Asher against Whitlock, that the heir-in-law or

devisee of William Smith, who died in 1875, could have ejected tljem, he having a superior title. It cannot be said that the possession of Mrs Smith went back to 1872, w,hen she went upon the property with her husband. During her husband’s lifetime that possession was her husband’s, and her possession certainly did not commence until her husband died. So far as the fact that a considerable amount of money has" been expended on the property is concerned, that to my mind goes for very little .The property was originally taken wrongfully. If persons take property which does not properly belong to them, and if in such cases they choose to spend money upon it, they take the risk of it; they have no equitable claim for compensation, and certainly I don’t think that they have any moral one. For these reasons I think the summons must be dismissed with costs, five guineas. At his Honor’s suggestion, in view of the possibility of an appeal, the matter was treated instead of as upon a summons in Chambers as a motion of the court.