A QUESTION OF ACCESS.

Gisborne Times, Volume XXIX, Issue 3298, 17 August 1911, Page 7

A QUESTION OF ACCESS.

AN IMPORTANT JUDGMENT. Sitting in the Magistrate’s Court yesterday, Mr. W. A. Barton, S.M., gave judgment in the case of David Douglas (Mr. Burnard) v. Edward Pat-' tricks Joyce (Mr. H. J. Finn). After reviewing the claims of both parties and the evidence, his Worship concluded: — “It is clear that two roads are marked on the plan giving access to town by a road shorter by about three miles than the main road, and plaintiff says that he purchased upon the representation that he was to have access to the sections by that route. After the sale of the sections 15 and 16 to plaintiff defendant sold the land comprising the roads shown on the plan to a Mrs. Clayton. The agreement for sale and purchase is as follows: ‘The vendor agrees to sell and the purchaser agrees to purchase all those parcels of land containing 66 acres 3 roods and 16 perches, being sections 15 and 16 of subdivision of lots 32 and part 13, block of Whataupoko, as such lots are shown on plan prepared by A. Forde Matthews, surveyor, Gisborne.’ There is a conflict of evidence as to what actu-. ally took place on the 23rd July when plaintiff agreed to purchase the property. Plaintiff on the one hand says that he referred to the road, but this is absolutely denied by the defendant, who says that no mention whatever was made by plaintiff about a road, for two or three weeks after the agreement for sale and purchase was entered into. It is possible that plaintiff may be under the belief that he did refer at the first interview with the defendant to the road shown on the plan, but I am of opinion that he is mistaken. He admits that no reference whatever was made to a road when the parties were at Mr. Mann’s office for the preparation of the agreement. If it is true that the existence of a road line on the plan was really an inducement for plaintiff to buy" the sections, I think he would have said something about it when the parties met at Mr. Mann’s office. I am of opinion from the evidence that the first time he discovered the road lines on the plan was when he borrowed it from defendant, about a week after the purchase of the land. Counsel for plaintiff contends that the production of the plan with the roads shown on it at the time of negotiations for purchase, together with reference to the plan in the agreement of sale, amounts to a promise on the part of defendant to provide access by the roads shown thereon. lam of opinion, however, that such is not the case. I think that if the plaintiff had desired to secure access by the road shown on the plan, it should have been distinctly mentioned in the agreement of sale and purchase. I am of opinion from the evidence, and surrounding circumstances, after careful consideration of the authorities quoted, that the plaintiff is not entitled to succeed on any of the causes of action. I am unable to find from the evidence before me that the defendant has been guilty of any fraudulent misrepresentation. “Judgment will therefore he for the defendant, with costs £5 Is.”