LATEST TELEGRAMS.

Taranaki Daily News, Volume XLVII, Issue 81872, 23 October 1906, Page 2

LATEST TELEGRAMS.

COURT OP APPEAL. IMPORTANT TARANAKI CASE. WRONGFUL REGISTRATION OF A LEASE. IS REGISTRAR-GENERAL LIABLE ? (Per Press Association.) Wellington, October 22. A Court of Appeal Bench, consistof Sir Robert Siout (piesiding"). Judges Denniston, Edwards, Cooper and Chapman, began the healing of tilt casa of Russell and another v. The Registrar-General of Lands. This was a special case stated by agreement of the parties and removed by consent into the Court of Appeal for argument. The special case sets out that the Uaitara Haibour Board on the 10th of August, icjoo, granted a lease for 21 'years of all land comprised in the certificate of title, volume 17 folio' 159. to Joseph and John Murgainiyd. The land described in the lease included by error a small piece of land, which did not belong to the Waitara Harbour Board, but to native owners. The lease was prepareJ by the Harbour Board's solicitor, and was registered against Certificate of Title, volume 17, folio 159. "Only on the 24th of October, Messrs Murgartoyd transferred this lease to plaintiff, George Russell, as agent and trustee of paintiff, George Pott. Tlio transfer of the lease xvas duly registered. Plaintiffs then started wool-scouring works on the land, on a small creek which was shown ill the lease as being wholly on the land leased to them, but which was really part of the boundary between the land leased to them and the native land, erroneously included in the lease. _ They put a dam in the enek, and in consequence the water overflowed part of the native land. On the 2qth of August, 1904, the native osvnors sued plaintiffs in the Supreme Court at New Plymouth for damage for this trespass and recovered the sum of £4B 76. Plaintiffs lost also the occupation of this portion of the land which they thought was included in their lease and the beneficial use of the creek and woolscourmg works they had erected thereon. They then brought an action against the Registrar-General of Lands, claiming damages for these losses from the Assurance Fund, but by consent this special case was stated. The questions for the opinion of the Court of Appeal are; (1) Whether the fact of registration of this menu,randum of lease, containing as it dm land to which the lessees had no title, gives plaintiffs the right to ciaim compensation from the Assurance Fund; (2) whether the fact that neither Messrs Murgatroyd or plaintiffs searched the titles before registration amounts to sucli contributory negligence as to prevent plaintiffs recovering compensation from the Assurance Fund; (3) for what losses are plaintiffs entitled to recover, and (4) what is the measure of damage. Mr Skerrett appeared for plaintiffs and Mr Martin Chapman for defendants. Mr Skerrett contended .that the lease from the VVaitara Harbour 1 Board to the Messrs Murgatrcyyd having been registered by section 35 »f the Land Transfer Act, a subordinate head of title or a new root of title was given to the lease, which plaintiffs were entitled to rely on, awi l it not contributory negligence oil their part to rely on this registrar 'ion instead of searching the titlethemselves. It was clearly misfeasance on the part of th« District Land Registrar to register the lease, seeing that it.contained a parcel of land that did not belong to the lessors, the Harbour Board, and therefore by seclion 178 of the Land Transfer Act .plaintiffs wero entitled to recover ; compensation from tlio Assurar.ee 1 1' uml for Jliat misfcasanco. Mr Chapman contended that it was the duty of plaintiffs, Wore acupting the transfer of lease from Messrs Murgatroyd. to search the title, m which C We the mistake of J hu District Registrar would nave been discovered. Plaintiffs w ero barred on th« authority of the cases of Miller v. Davy (7, N.Z.L.8., 515) by tfceir own contributory ne#Mr Chapman further submuted that if ihe Assurance Fund hablo, the measure of damages Avuk\ bo no more than is provi<M in section uSG of the Land TraosfttrAct. that the value of the estate held! by the plaintiffs. Mr Skerrett briefly replied', and the Court reserved judgment.