DISTRICT COURT

Wairarapa Daily Times, Volume X, Issue 3165, 28 March 1889, Page 2

DISTRICT COURT

■■' — '■ '"■•"' ,;; '■;**'-.:■ (Before District Judge H. W; : - son). '■■:- ' -•■■"'■ ■G.W.Phillips v Alfredton Eoad Board.-rGontinued. '.'..•'.; ■;,■_'..■■ v Plaintiff cross examined.':; It was : two years since lie put'the sheep on the land.- Bought them olieap as it was a dry season. When lie put the sheep oil; the land he knew the road ; / was taken by the Board, butthought , : it was taken under the Public Works Act. • When he went into the district - about four years ago there were a few ; culverts in on the road, and a portion of a cutting'had been'done.-flad heard that tehd(ft»,had been balled for the erection f oYa bridge but were held over on account of the bad roads. First complained to the board about three years ago. The Board's minute' : ; book should show. Did not complain to the Board till he was ready to fence. A bridge'was erected before he complained, Worked at the ' under the contrttotof. KnewMurdol»r McKenzie as the man who laid oIFX the road. Did not apply to the Board for permission to ereot a gate. Put the gate up for his own protection, not for'the protection of the .public He was paid for the ereotion of the gate by the Board. Did not request the Board to erect the gate. Was ordered to withdraw from the I room whilst it was discussed. | Received £2 10s for the erection of

the gate across this road,- considered it for labor. ■ Started bushfalling for • Branniganwhen lie first wentinto tho district. It turned out to be Government land and had. to go to Court to get liis money. Lived in a thing called a" tent" near his work. < It was useless for him to fence the land when the Board put a road through two aides.. MrMoLaohlan's line did not interfere very mA with his land. That would hM been a better site, for a bridge. .

Would not.have objected to that - road. • . By Mr Pownall: Did not go to the Board until his land was nearly fenced. Trusted to the Board to do what was right about the road. s\ Would'have been content had Board taken the land under the! s~ Public Works Act and fenced it. Had been rated on 207 \ acres by the Board and Property Tax Department and the Council. The area included the road line in dispute. He considered the road depreciated his property to the extent of £7O. THURSDAY. Mr Beard for defendant raised a nonsuit point that the road was dedicated by public usage, and plaintiff's acts to the Board. Tho Judge overruled tins point, stating that plaintiff was only a leaseholder, and could not dedicate it, and that the question of dedication by account must be loft to the jury.

Mr Beard called Murdock McKen*. zie who stated that lie laid off tft road for the Masterton Road Board some years ago, and that over £260 was expended on-it on a bridge, culverts, and formation, was seven miles of road and Boveral deviations had to be made because of the grades. A previous line had boen laid off for the County Council. By making the deviation through plaintiff's property a considerable sum had boen saved, the saving on tho. bridge alone being 460, He nij 1 . under the impression that the belonged to Mr Cross, who would not . have objected to any deviation. Dugald Macquarie stated he was a member of tho Masterton Road Board from 1881 till the formation of the Alfredton Road Board in August, 1884, and a member of the latter to May, 1886. There was an old bullook dray road in the Alfredton district- referred tot hat had been ' in use for 20 years, and a petition presented to tho Masterton Boardly the settlers asking that a road Bhould be laid off. A road was laid off by . MrM. McKenzie and certain contracts let. One was for about three miles of formation, culverts and bridges, That was in March, 1884. Under that contract drains were made two.oulverts erected and a bridge built on Phillips'land. In August 1884, tho Alfredton Board was con- • stituted, and took over tho road. There was no complaint while witness was a member of either Board, made by Mr Phillips. Tho bridge cost about £220, 'and tho culverts &c about £SO. Since the formation was completed '-' in 1884 the road has been used by the'public. There was a deviation from the old bullock track on section ;.;/• ~' 78. Plaintiff's land was all vm-'-ri, fenced at tho time. It was fenced in 1887. Had always thought Phijte had suffered some damage by W doviation as he would have to erect three fences instead of one, Cross-examined: No notice was served on Mr Phillips that the road 'was about to be taken through his land. Throught the Board could take the land under the Act. Thero bad been a . ' •• mistake made, It was known when tho bridge was constructed that Phillips was in the district. No notice was given to the owner as no objection was raised A saving was made to tho settlers by- taking " the deviation. Phillips would have benefitted by the road being taken along its original course. Would set down Phillips' damage at the value of the fencing along -the deviation which is stated to be 86 chains. He should say a' batten fence could be erected at 12s a chain. He should in his opinion be paid for the land taken. £8 an acre would be a fair value for tho flat land. The. road is a chain wido, making the area taken 4 8-10ths acres, A To Mr Beard: The land has beeTP f fenced round and gates placed across ( the road, He was convinced the " road lino would interfere with tho water supply as- it would prevent stock getting to the river, Wm, Cross, sheepfamer, gave evidenoe concerning the otyrbad and stated that a deviation of 2 or 8 chains occurred on seotion 70, and on section 71 and 78 it was 4 or 6 chains, Remembered -Phillips ooming to him in 1884 and speaking to him about the road. He said it had been taken through his sections and done a lot of damage, aud lie wished the Board would place it in its old position, This conversation aroso shortly after Phillips came to tho district. The Alfredton Board paid for the erection of a gate put up by Phillips on his boundary on this line of road, By Mr Pownall: The deviation was" used as a public road for the last four years, but Phillips had for the last ' three years objected to it. Had objeoted to the line aB laid off by McKenzie but was told by him Ihmt ' a road could be taken through any part of his property. They Had been so long without a road that he had been glad to get one anywhere. The Board had/not lo : sir money by reisbn of Phillips not objecting to tlie , land being taken' for & J - road. Whgfi l W ' Phillips first came before ti» itotti ;

the worka wero all constructed. The Board thought they had a right to Jake a cheaper road. The Board had Ae thoughtinever considered that had given up the road to the Board. The Board considered that they had a. right to take the road through where they liked, and took it where they did because it was a cheaper route. That was the reason tho Board declined to pay what he claimed, If ho was told that the Board had no right to take the land without Phillips' consent he should consider he had a claim for damages. WV M. Kebell deposed he was the Chairman of the Alfredton Boad Board. Iu JauuA 1882 Phillips was emfloyed by hifti sawing timber. Believed tho plaintiff had been in the district ever since. Remembered an application from Phillips to have a gato oreoted, and the Board agreed to it. Had been a member of the Board since its constitution, Up to Hftujpore the Boord to make any comThe opinion of the Board was that the question of the deviation was all Bottled when Mr Phillips applied to tho Board. Considered that plaintiff had suffered by the deviation by the necessity. for extra fencing, and by the division of the land. About £3OO of public money bad been spent on the road. Cross-examined; The Alfredton Board took over the assets and liabilities of their district from the Masterton Board. His Board had done work on tho money. Did not consider tho road belonged to Phillips but to the Board. If the Board demanded rates from Phillips for the four acres constituting the deviation it was a clerical error. Considered plaintiff gave his consent to the Board taking the road by his •cpting the gates and raising no action. Was not aware the gates were ever absent from the road. Believe they are there at the present time, Did not cousider there was any necessity to fence the road. The feeling of the Board was that Mr Phillips had suffered a hardship, but a)ub terms wero so unreasonable that *Tt was impossible for members to - 'come to an amicable settlement with him, Personally he considered the Board had reaped a benefit in taking the line of road through Phillips' in preference to the Government line. If tho Board had not been under the impression that thoy had been blackmailed they might have taken the road under the Public Works Act, Mr Phillips, on being called, stated he had worked as a laborer on the bridge when it was beinp constructed by the contractor, but he did not know by what Board the bridge was constructed. He accepted the gate on his property merely for his own protection. Nothing had ever been said to him about the gate being accepted in ftlement. [Left Sitting,]