WHO OWNS THE STONE?

Taranaki Daily News, Volume LVI, Issue 215, 11 March 1914, Page 7

WHO OWNS THE STONE?

A TEST CASE. ACTION 11V L'l BLIC TRUSTEE. A rase of great interest .to all lessees of laud from tin; Public Trustee was hearil in the Magistrate's Court, New Plymouth, yesterday, before Mr. A. Crooke, S.AL, when the Public Trustee (Mr. A. 11. Johnstone) proceeded against Charles Andrew's, of Okato (Mr. I>. Hutchen) for £32 13s lid, royalty received on stone, which the Trustee claimed should have been paid to him as owner of the freehold. The ease for the Public Trustee, as outlined briefly by Mr. .lohnstone, was this: The defendant is the lessee of subdivision 1 of section 3, block 3, Cape Survey District, under a West. Coast Louse from the. Public Trustee for seven years at £lB 15a per annum. This land is bounded oil one side by the Stony River, in whicli there are large and valuable deposits of stone used for roadmaking, and stone is also found on the land. Contractors, said Mr. Johnstone, had been in the habit of removing stone from the river bed and from the land. Some years ago owners of lands similar to' this found they had dilliculty in obtaining payment from the contractors for the stone taken, and the Taranaki County Council then decided to withhold such royalty from the moneys paid to their contractors, and pay it over to the owners of the land. Evidence would show that between 1900 and 1912 the Council haA paid to Andrews £32 13s (id in royalty. The Public Trustee, as owner of the freehold of tile soil, now claimed that the money should iiave been paid to him. The stone was reserved to the Trustee by the terms of the lease to Andrews, and also in common law. This was a test case. There were many lessees under the West Coast Settlements Reserves Act receiving money in this way from contractors and local bodies, and the Public Trustee, without any animosity towards Mr. Andrews, desired a decision on the. point. Ernest Barnes, district manager for the Public Trustee, resident at llawcraidentilied a copy of the lease to Andrews. So far as lie knew no authority had been given by the I'nblie Trustee lo remove stone from the land. To Mr. Hutchen:: Stone had been taken from the river bed and from the land for a number of years, this being a practice followed by other tenants ■of the Public Trustee. No payment had ever been received by the Pubiic Trustee for this. He believed that a tenant of land near Andrews had a crusher working on his land, and as far as he knew no payment had been received. The taking of stone from the river did not deplete .the supply of stone for road metal, which was constantly being renewed by natural means. Re-examined: The Public Trustee'contemplated taking action against the other lessee in the district mentioned by witness. Arthu,r V. Sturtevant, District Land Registrar, of New Plymouth, produced a plan of the land in question. The title, which was by Crown grant, showed the river as a boundary, with no restriction as to taking stone from the river. Robert Owen Ellis, clerk to the Taranaki County Council, produced vouchers signed by Andrews for royalty on stone paid by the Council. The amount of royalty was arrived at from particulars supplied by contractors. The stone taken in October, 1!)()!!, was taken by Frank and Edward Sole. He detailed the stone taken out by other contractors. Royalty was paid at the rate of 3d per yar<l. Since he had been county clerk'clerk, the Public Trustee had some years ago disputed the payment of royalty to the tenants. When fid per yard royalty was charged that was estimated at 3d for material and 3d for surface damage, but in the Okato riding all the tenants accepted 3d per yard to cover both. Royalties varied from 3d to tid in various ridings of the county. William James Gray, of Okato, farmer, knew the defendant's land. On a plan of the land he pointed out the locality from which the stone was taken, about ten chains up the river from the main road. For the defence, Mr. hutchen raised a non-suit point. The action was, he said, ethically one for money which had been received by the defendant for the use of the plaintiff. It was not an action or waste, otherwise the amount received by the defendant would have, been irrelevant. If an action, for money were to succeed, it must be established that the money was received 6peciliNilly for the use of the plaintiff. He quoted Leake on Contracts and various English cases in support of this view. In this case the money had been received by the Colincil in its own right, not on trust, and paid over to the defendant. who had received it in his own right. The defendant undoubtedly had a claim against the Council for injury lo his rights under the Public Works Act. Mr. Johnstone, in reply, contended that, the Public Trustee' could claim under the lease and at common law a right to the soil, and therefore the money received in respect of the stone must have been for the Public Trustee. The tenant received money for what did not belong to him. The contractors were mere trespassers who should not have been admitted by the defendant. The. money was lint paid out of the county funds, lie submitted that his action was properly tounded. If the stone had been taken under the Public Works Act Andrews couul have claimed damages from the council, and the Public Trustee would luive received the value of the stone. Mr. Hutchen then elected to call evidence. U-wis Coster Sladden, of New Plymouth. licensed surveyor, produced a plan which he had prepared of the land. At the widest part of the river it was live chains from bank to bank. To Mr. .lohnstone: There were some ■Mauri whares close to where the stone was taken, and the cart track might be used as an approach to these. The cart track ran along the river, and did not cut up the farm at all. It was about --I" .lards long. , Charles Andrews, defendant in the action. and a member of the Taranaki County Council, deposed that, the pnv. incuts for royalty made by the Countv Council were made out of tin; county funds and were not deducted from the contractor's funds. About eight years ajio it. was decided that the Coiinci' should he responsible for this rovallv. The damage to his property from {he action of contractors comprised loss of cattle through gates left open, and broken fences. During the time "tin*v were at work, his land was unoccupiel To Mr. Johnstone: The lease to him bound him to allow Rangi Hiki, the occupier of a house on the land, reasonable access to his house. The bullock drays cut up a track four or five chains wide. He could by a fence have limited their movements. He always looked on the royalty paid to him as being in re-

sped of damage to his land, un.l thought if the Public Trustee '.valued pa.iment for the stone he could claim on 1 In: Council. Mr. ICrooke. pointed out iliat the royalty was calculated on the amount of stone taken. The witness was severely cross-exam ineil by Mr. John-tone as to whether the payments lo him did not include the value of the s'.onc. In other <li* t.ricls it did, lie said, but not in his particular case. Mr. Johnstone lu re admitted that hi had been under a wrung impression when lie had statcii Urn the money was paid uul- of the' rie.neys received from the contractor, , In answer to hi:-, worship. Mr. Sladden explained that stone was worth from -1s to (is per yard delivered at the crusher site, but in the river was worth about the amount of nr aliy paid. Mr. Johnstone pointed out thai in many cases stone was removed from oil.' property by many local bodies anil the profit was fairly large. as the damage was really not great. As trustee for the natives the plaintiff wished to have am such profit reserved for them. He submitted that the amount received by the defendant was for the value of the -tones. His worship reserved his decision.