A DEAL IN PROPERTY.

Gisborne Times, Volume XXIX, Issue 3193, 12 April 1911, Page 2

A DEAL IN PROPERTY.

WAS THE LAND TO BE ROADED?

ACTION FOR DAMAGES

Mr. IV. A. Barton, S.M., had liis attention occupied yesterday with the hearing of claim for £99 brought by David Douglas (Mr. 1,. T. Burnard), of Mangapapa, against Edward Pattricks Joyce (Mr. H. J. Finn), as damages for alleged misrepresentation regarding the reading of a property giving access to certain land which plaintiff purchased from the defendant. , The plaintiff stated that he. noticed by an advertisement that certain land at Mangapapa was for sale, and. the defendant, when witness spoke to .him about it, showed Him a plan of the sections. Witness noticed a road pegged off on the plan; and there was also what was known as .a. stock track. Eventually witness agreed to purchase the property at £lO per acre, and he paid £5 that night. On the following Monday lie paid half cash, and signed the agreement produced. The existence of the roads in question was an important element in connection with the purchase. Without the roads the land was' worth £2 less per acre than what he gave for it About six weeks or two months later witness heard there was not to be a road. In company with Mr. Bell witness saw defendant, who stated there was not to be a road He said there used to be a road, but it was done away with. Witness told him he bought the property on the understanding there was to be a road, and he would have to get a road or else damages. To Mr. Finn : It would be difficult to make the road as shown in the plan fit for dray traffic, hut stock --on d he taken aloqg it. The sections had not been surveyed at the time lie purchased, and formed a portion of a large block of land. He would not take l' - e money he paid for the sections, because since ho took possession he had grassed and fenced them. He had got the sections as shown in the plan. He did not say that the defendant had made the statement about the road fraudulently. He may have told a neighbor that he was led to believe there were two roads near the property. He had no idea what it would take to form the road. There was a public road at the end of the property. He did not accuse the defendant of fraud, and lie (witness) was never offered any sum of money to bring ail action against defendant. He did not ask his brother-in-law for any money to bring this action. lan lan Sim son,, a land valuer, residing in Gisborne, said that defendantsaw him just after Douglas purchased some land, in reference to the sale of his Mangapapa property. The property was to be sold by allotments, and defendant discussed with him the auestion of access. He showed him on the plan a surveyed road. He also showed him another road from the corner of section 1, passing 2, 3. 4,6, 7, and finishing on section 8. The same indications of a road were shown on aeopv of a plan .which he was supplied with. These plans were supplied subsequent to plaintiff purchasing. The absence of a road would detract from the value of the land to the extent of £2 ner acre. Arthur Pilcher said he knew the plaintiff’s land at Waimata. He knew sections 15 and 16 shown on the plans. Assuming there were no roads there would be a difference in value of close on £3 per acre. Alfred Forde Matthews, surveyor, deposed that he knew the parties to the action. The plan produced was prepared by him.' It showed a niece of defendant’s land cut up into sections. It also showed road access from the eastern side of the block going round sections Nos. 1,2, 3,4, 6,7, 8, mid 11, and gave access to section No. 16. There was another road shown on the plan. The intention of the owner was, he thought, to make the half-cliain road a- sort of stock track. Witness had surveyed the property, and knew it well. The fact that the roads had not been formed detracted about. £1 per acre from the value of the land. The original of the plan was withdrawn by witness from the Survey Office. It was not approved of, as the roads were not dedicated. He was instructed hv defendant to survey sections 15 and 16 to complete a transfer, and defendant said nothing to him about a road. The plan as completed showed the number of acres defendant told him to cut out. Mr. Finn: The Council could not- take over a half-chain road ? Witness : I believe that is so. The Magistrate: As a matter of law I think that is right. William Bell, farmer, at Kaiti, stated that he knew the parties in the present case. He had purchased land adjoining the land owned by plaintiff. He had had a conversation with plaintiff relative to the road. Subsequently he was present at a conversation about the same subject- between the plaintiff and defendant. Witness had told defendant that Mr. Douglas wished to sneak to him. Defendant-' had told plaintiff that there was no road there. Plaintiff had then said he had bought the land as there was a road to it. There was no road, hut lie intended to have one. Defendant had answered that he could do what- he liked. Shortly afterwards defendant had walked away. In the absence of these roads sections 15 and 16 would decrease in value by clCl*G. To Mr. Finn: It would cost £2OOO to £3OOO to make the road. Pilcher, re-called, said that lie used both roads. He thought the chain track was marked by pegs. Mr. Finn said that this was really an action for deceit, as fraud and misrepresentation were alleged. The plaintiff contended that lie was entitled to a rightaway to give access to liis property, hut there was no evidence to show that the defendant very distinctly promised him a rightaway. A rightaway was known 1 in law as an easement, and in order to obtain that the deed must be in writing. m Mr. Burnard admitted this fact, and Mr. Finn contended on that admission that section 4 of the Statute of Frauds debarred plaintiff from recovering. The plaintiff had not 1 proved that defendant made a promise of a road, and went by the plan. If the plaintiff was entitled to relief he should .apply to set aside the contract, and this was liis proper course. The defendant said that about .July 23'd the plaintiff visited his house and asked him if the land at Mangapapa. tliat was surveyed into sections was for sale. The-v had a look at the plan, and the plaintiff asked him the price of sections 15 and 16. They agreed on '£!() per acre. Plaintiff then gave him p, " to hind the bargain, as he called it. Plaintiff then arranged to come to town the following Monday, and witness and .Tv». me+ at- Mr. Miami’s office on that day. An nirreement was drawn up and signed. This agreement (produced) was in accordance with the arrangements made. No reference was made

to the road about that time. The deposit was paid; and they parted. Witness met the plaintiff about a , fortnight later, who asked if witness would sell section No. 11. Witness replied in the negative, stating that he only intended to make two sections of the back block. About a week later witness saw. plaintiff at his (witness’s) house, and plaintiff again asked him if he would sell section No. 11. Witness again refused to sell.- They met again about a week afterwards, and during a conversation plaintiff had said ho thought there was a road to the property. Witness had replied that there was never any proper road there. Plaintiff had stated that lie expected a road, and witness replied, “You will get no road; you are getting what you paid for.” Later, lie again met plaintiff, and witness had told him that lie could not expect a road, as it was not in the agreement, and besides it would he impossible to make a road there, as Mrs. Clayton had bought the land over a week before. Witness said, “I will give you the land you bought.” Plaintiff said, “Well, 1 want a road,” and witness told him that he would not get it, and they parted. He was certain that nothing about a road was said by the plaintiff until two or three weeks after the agreement produced was signed. To Mr. Burnard: Witness admitted that plaintiff had twice brought the matter of the road under his notice shortly after the sale. Plaintiff had asserted that he was entitled to a road, but witness denied this right. He remembered the plaintiff handing- him the £-Y but lie was not sure whether he gave him, a receipt. The case was then adjourned for legal argument.