WESTPORT LAND CASE.

Westport Times, Volume VII, Issue 1063, 15 April 1873, Page 4

WESTPORT LAND CASE.

JOSEPH V. MYKRS AND SOLOMON. On Wednesday last Lowther Broad Esq., the Resident Magistrate, Nelson, delivered tho following important judgment on the West port laud case, which was noticed in our lust issue. We are indebted to the Colonist of the llth instant lor tho following report of Mr Broad 1 a judgment:—

" This is an action by Samuel Aaron Joseph, against Judah Myers and John Solomou to recover the half-year's rent of part of Section 37, Westport, payable 31st December, 1872. This land was leased by tho plaintiff to defendants by deed dated 21st December, 1800, For a term of 13 years, at a rent of £2O a year. The defendants, by deed dated 20th July, 1866, assigned, for a consideration of £2OO, their interest in the residue of the term of tho lease to Richard Rowlands and Christian Miuderwann; and Rowlands and Mindermann, on Oth August, 1809, in consideration of £3OO assigned by deed their interest in the residue of the term to Whyte and Pirie. There is a covenant in the lease for the payment payment of the rent, which appears to have been regularly paid up to 30th June, 1572. (Shortly before that date, the sea had encroached upon the land so that it was covered at high water, aud at present Mr Dobson estimates that at high tides tho water is eight feet deep upon it. Before the laud was covered by the sea, Messrs Whyte and Pirio removed all the buildings and sold them. It is stated also in evidence that a section of land measuring 33 x 132 feet'had,-at Whyte and Pirie's request, s been allotted to them by the Government as compensation for the loss of the piece leased from the plaintiff, and which only measured 21 x 00 feet.

11 The defendants seek to avoid payment of the rent due on two grounds. Ist. That tho lessor has relieved the Jesses from their liability by acknowledging the assignees, and acceptiug rent from them. 2nd. That there has been an eviction by title paramount entitling defendants to an apportionment of the rent, and that the loss boing total, the plaintiff can recover nothing, "It is true the plaintiff (by his agent, Mr Levien) received rent from the assignees, but the receipts put in evidence are mostly in this form — 1 Received for Salomon and Myers by the hand of Messrs Whyte and Pirie,' so much rent. Mr Levien states that he distinctly told the defendant Myers he would not acknowledge tho assignees as standing in the nlace of defendants. The mere fact of receiving the rent in the above form (and that is the ouly evidence on this point against tho plaintiff) does not relieve the defendants. And I may go further and state that even if the lessor had agreed to recognise the assignees, tho defendants are leable on their express covenant, in the absence of any release dulv executed.

" The second ground' on which the defendants rely as relieving them from liability is that there lias been a total eviction by title paramount. In support of this view the cases of the Hull and Selby Eailway, 8 L. J. Ex. 260, and Scratton v. Brown, 4: B and C, 485, were mentioned. In Bacon's Abr., vol. 7, p 63, it is stated 'it seems extremely reasonable that if the use of the thing be entirely lost or taken away from the tenant, the rent ought to be abated or apportioned, because the title to the rent is founded on this presumption that the tenant enjoys the thing during the' -ontract; and therefore if part of the land bo surrounded or covered with the sea, this being the act of God, the tenant shall not sutler by it, because the tenant, without his default, wants the enjoyment of part of the thing which was the consideration for his paying the rent; nor has the lessor reason to complain, because if the land had been in his own hands, he must have lost the benefit of so much of it as the sea had covered. The same doctrine is stated in Kooles Abr., vol. 1, y 286. But in the present case there are peculiar circumstances which do not seem to have existed in the cases the defendants rely on. It is in evidence that the lessees received £2OO for their interest in the residue of the term, and that their assignees received £3OO from the present assignees (Messrs Why to and Pirie) who removed and sold the buildings for their own benefit and are now in occupation of another section of land, the enjoyment of which was given them by the expressly as compensation for the loss of the land covered by the era. Had the lessor retained the land leased to defendants in his own hands, he would of course have received this section (which is now occupied by the assignees) as cdmpcns.it on for.his loss. it docs not seem very clear what kind of title Why to and Pirie will get to this land, but it is certain that the occupation of it is given to them solely by reason of their being the assignees of the defendants as already described. " Thero is anothc* consideration I may mention, and it is this: that it is possible, the water may recede ftgajn from this section, and it is stated "Tf the sea overflows the land of any person, and after forty years flows back again the owners shall have the land and not the king.". 2 Ilooles A hi., p 16S, and Cotnyns' Digest, p. 75. In the present case the irruption of water has not, I think, been gradual enough, nor has the land been sufficiently long covered to enable anyone to say, with oven tolerable certainty

that the section may not bo in a few years op even months, again left high anil dry. Tho Crown has done nothing to assert its title paramount, nor would it perhaps be able to do so yet.

"In the case of the Hull aud Selby Kaily, the encroachment of the tides was by'alow, gradual, and imperceptible processes, so that no particular period thereof could be ascertained.' That is not tho case hero, for when the assignees bought tho land in 1815U it was perfectly dry, and they used and occupied it up to early in 1872. After considering all the circumstances of this peculiar case, I think tho plaintiff is entitled to recover tho rent under tho lease.

" Verdict for the plaintiff for £lO, and £3 10s costs."