S.M. COURT.

Taranaki Daily News, Volume XXIII, Issue 281, 26 November 1901, Page 2

S.M. COURT.

Monday, November 2Pth.— Bsfore Mr R. L. Stanford, S.M.

JUDGMENT FOR PLAINTIFFS. \;W. E. Nichols v, Jae Lucre, claim £2 12", costs ss; School Commissioner* v. T. Mills, <-l<iim £25 s<, costs £2 14s. ;i Gr y (M.. S.uuie]) far phintiff, Mr I Iv i ;• for defe idaot. DEFENDED CASKS. J. M. Hignett v. Sirgeot. Mr Roy, flofni-Litii-, applied for a further, adjt.ur»aiou*. Mr Kerr, for plaintiff, objecteJ. . I His Wors'up printed out that the previous adjournment had been made only for the pu'piee of taking defendant's evidense at Onehunga. Mr Roy e .id he did not uode.s'and it that w^y. His Wcsl.ipconsideredthatasar \tter of principle he must decline the application, but at Mr Roy's request the case was adjourned till next Monday to enable bim to go through tho evidence St as to address the Court.

CLAIM FOR DAMAGKS. —A SECTION WASHED AWAY BY THE SEA. Wm. Wtibb r v. Sole Brothers and 0. C. Kyngdon. Mr Roy for plaintiff, and Mr Weston for defuiidants.

Tnis w<:s a claim for damages by the l*see of Reserve R Brising from the t roainu of beach land caused by tho sea, ,snc'i erosion beiufj alleged to be due to the defendants removing some 38,000 yards of s one from the beach. Mr Roy detailed the circumstances and st-.ittd that the plaintiff claimod £SO f'U' darnxga to bis land and £SO for damage to fences. Mr VV oston (•aid that with regard to two of iim defendants they had not been r moving store from the beach sine* April, and not f'om tbo site in que tion at all. With the permission of tho Court, he called

Oliver Samuel, solicitor to the New Plymouth Hirbnir Bo»rd, who produc d 'wo grants of tbe one by the Provincial Government to the Qneo.f and th« other by the Grown to the Harbour Board.

To Mr Roy—Was afeo solicitor to cbe School Commissioners. Identified lease produced as being that granted by the Commissioners to plaintiff. The high water mark on tbe plan was not shown whsn the lease was prepared. At the request of counsel on both sides his Worship consented to inspect the locus in quo and the Court was adjourned for that purpose. Some time was spent in examining the foreshore, Mr T. K. Skinner being in attendarce wi'h a plan whereby he was able to point out where tbe reserve wai located when it existed, there being no trace of it now. Posts had been put itx what is now the beach showing the locale of the reserve, and it was seen that high water mark now extends some yards on to the late Major Browu's property, which was on the land sid* of the reserve.

On resuming after luncheon, Mr Rov called

F. P. Oorkill, secretary tithe Sclrol. Ojminiss ; on-'rß, who detailodthe ero«ion that bad taken place. R. dock, chairman of the Oommissiojers, in the course of his evidence said for years boulder stone hid been removed from the beach, and no doubt this had an effect on the erosion. To Mr Weston : OoulJ not remember large black rocks being either in front of or on Reierue R. There were only small boulders which shifted. B>fore tho breakwater was erected, everyone was ia fear of s<md accumulating, but now the sand had stopped coming along the coast.. He considered that the who'e sea front at the place in dispute was altered. Did not know who had picked out boulders. The Commission-MS had cent warding letttrs to those whom Webber notified had Itiken stone.

To his Worship: The part of Reserve R Webber leased was four acres.. To Mr Weston: The greater part of Webber's land had disappeared four years ago. His Worship: What is land worth thera ? What; is the rent ? Mr Weston: The rental under the leas 9 is 5s a year. T. K. Skintser, surveyor, said he had known the raserve ia the sixties. It wan all sand. The foreshore opposite the reserve in 1880 was all sand. The height of sand abov9 high water mark was 8 or 10 feet. [Produced topographical survey showing high water mark half-way through the section.] High water mark was now about two ohaios further inland. Surveyed the ground for the School Commissioners about last March, There appeared to be no stone on Reserve R. There was some sbingla there to-day, but no rock showed.

His Worship : Witnesi is quite right, there is no boulder rock ehowing to-day opposite R.

Witness: The formation under the sand is a sort of Java rock. Within the last two or three years the erosion his been going on at a very r*pid rate. This was owing to sand disappearing since erection of breakwater. Knew stone had been cirted off the beach, but that would not altogether account fur the erosion. Considered that from 10 to 15 feet of sand had disappeared off the be»ch. Estimated 60,000 yards of earth hnd gone off Resarve R, taking it at four acres.

{ To Mr Weston : At one time the j danger was sand encroachment, now it v;as the sea. Sj far as rock was concerned the beach is pwctioilly the !ssm», except the sea has encroached. j Opposite Reserve R there never were j any reef holding bouldei s. j To his Worship : The conglomerate ! underlies the sind, and will show when | the sand is wished away. Every large 1 stone has a beneficial effect in breaking j foroe of wives. j To Mr Weston: From where the I atones are supposed to have been removed there would be 6 or 7 feet of water at top of the tide. Willium Webber, plaintiff, raid he i held a from the Commissioners of part of R9serve R. Held the land Isi.'ic* 1894. When he took possession I of the reserve it was in grass, furze land bramble', nnd wns eight feet above | high water ui*rk. The* foreshore v/as I sand, stone and sMngle, which »ct°d as | a protection to the Reserve. This proit.ee ion had to his knowledge existed for 25, years. Pub up a post and wire jfencs and planted 2QQ pinua insignus, from the river to the boundary at the se-.hide. Had to rofence a part fo.ur time". Estimated cast of fe»cing a,t £4Q anl pltuting £3 Altogether na d spent £SO on it, First complained about three years ago wbon 20 or 30 feat ware washed away o*ing to the stone being taken away. Had seen stone carried away many times since. Firs 1 , siw defendants removing stone last M>iy. S»w Kyngdoo, Sol •, Wells, and Petch removing stone. They were loading gravel from Reserve R and said they bad a permit from the Harbour Board. Trey seat the gravel

away by trucks *o Stratford. Produced | memoranda seating that he saw Sole romoving one lead of gravel on October 23rd aud two loads of stone. Had seen defendants a dozen times taking gravel in September and October. Estimated tbat an average of 3 feet of stone had been removed and 5 feet of; sand. His fence was washed away! about two and a-half years ago; valued his lease at £SO. I To Mr. Wrston: In October the! stone tafce-n was oil' the beach. H© claimed that his W.d formerly stood on the spot from whenco tlio stone was taken. Did noi tell Solo he could take stone from where he (Sole) liked as the land belonged to the Harbour Board. The whole of the reserve had beec washed away since last April. G. L. Williams, miner, srid he had known Reserve R since the time of the Whiteley massacre. It was then rough tussock land and he used to go shooting over it. Had done fencing there this year for Webber. Ten pounds would rover the expense. To Mr. Weston : There was co grass land where he fenced. „ It was beach. The stone was removed from the beach.

6. Rusden gaveevideuce as to seeing stone carted away by E. Sole. This concluded plaintiffs case. Mr WestoD, for the defence ; said there were practically two causes ot action—one for trespass and the other for erosion through the removal of stone. He contended that the evidence showed the removal of stone was subsequent to the disappearance of the the laud, and therefore so far as that part of the case was concerned it was at an end,

Mr R y, in reply to his Worship,] admitted this. I Mr Weston then contended that as to the other part of the case, the defendants had a p«rmit to remove stone granted by ten Harbour Board, in whom the foreshore was Tested, He submitted that the ground up to the present high wa'er mirk was vested in the Board, and he quoted the case of "Scrarhoi r Bown" in support; also the case of "la re the Hull and Selby Railway," 8 L\w Journal, New Series Exchequer 261. He claimed that the case cited proved that highwater mark when it shifted imperceptibly either forward or backward was always the actual highest point of the tide from time to time, and that the owner of land adjoining high-water mark had to beir the loss in case of erasion or take the gain in case of I accretion. Several other decisions on ! the same point were quoted. j To His Worship—The boundary of Reserve R was the sea.

His Worship -Then you would hold that Mr Webber would have been entitled to have taken proceedings. Mr Weston Yes.

His Worship—Then pushing your argument to an extremity would Mr Webber now be a trespasser if he endeavoured to put up a protective work, j Mr Weston said he was not disposed to answer that question offhand. i Mr Roy admitted the cases cited were strong, bi't in New Zeknd all boundaries were fixed by survey and not as in England. Hi put the suppositious casi of tin sea, encroaching half over Devon-s'reet, and asked whether the Harbour Board would) thin claim all the land encroached bpon. He submittel that the land laws as to boundaries of English properties were not applicable to New] Zealand cases. He quoted the cise of j " The Grown v. Tomlin " to show that I any person removing the foreshore and j injuring neighbouring property was liable in damages. He contended that nothing which had been done hwe could vest Reserve R in the Harbour Board.

His Worship to Mr Boy: Speaking offaand I do not think much of your argument that thi land tenure here differs from tbat in England. I do not think your contention has ever been held. Surely the whole admission and argument shows that if any one should have been sued it should have been the Harbour Board and not the Board's licensee. He had no hesitation in non-suiting. Plaintiff non-suited with costs £5 (solicitor's fee.) , DISPUTED SKTTU3MBNT.

New Plymou'h Sash and Door Company v. L. Steele. This was a o'aim for .£35 9s 1 Id, balance of account. Mr Gray (Mr Samuel) for plaintiff. The'defendmt conducted his own oase, H. L. Tribe, seoretary of the company, and E, Snowball, manager, gave evidence in support of the claim, and they both stated that a p.n, which was given, was only in part payment. The defendant gave evidence on his own behalf, and said that some time since the plaintiffs sued him, and he saw Mr Tribe and offered him lOi in the £, This was to be submitted to the directors. Next day Mr Tribe told him the company would take £35 csb and a bill for £25 in settlement of the account.

To Mr Gray : He had a contract in his own name at Stratford. On that he lost money. The Magistrate siid be felt no doubt that the amount claimed was properly due, and he therefore gave judgment for £35 9s lid and costs £4 2s.