keep the land.

A Supreme Court judge has thrown out an action against them, saying the Court of Appeal had already decided the case in 1982.

Mr. Philip Perinchief, lawyer for the four Mill Creek defendants, said his clients were now in a position to seek title to the land for themselves.

Fights over the land near Controversy Lane in Pembroke have raged since at least the 1930s. The stakes were raised recently with the expectation Government would seek to buy the land for Mill Creek Park.

The most recent action was brought by lawyer Mr. Charles Vaucrosson, Mrs.

Catherine Chiappa Belvedere and the Bank of Bermuda.

Suing as executors and trustees of former owners Mr. William Chiappa and Mr.

Lawrence Chiappa, they asked the court for an order for possession of land occupied by Mr. Henry Correia, his son Mr. William Correia, and their relatives Ms Phyllis Josephine Smith and Mr. Clarence Albert James Smith.

The defendants were said to rent the land they occupy from Mr. William Chiappa, who died in 1956, and his son Mr. Lawrence Chiappa, who died in 1975.

The plaintiffs said the defendants all stopped paying rent between 1969 and 1974.

In 1979, the Supreme Court ruled the plaintiffs were entitled to the land, but that decision was later reversed by the Court of Appeal.

That court ruled that at the original trial, the plaintiffs had not properly produced the Chiappas wills and shown ownership had passed from father to son and that they were the trustees and executors.

"That decision was not appealed further, but instead the plaintiffs sought to bring this action in which they seek to prove those wills and thus remedy the fatal omission in the first action,'' Puisne Judge the Hon. Mr. Justice Ground said in his May 19 judgment.

But Mr. Perinchief argued successfully that the Court of Appeal had ruled against the plaintiffs on the same issue, and the case could not be argued again.

That was despite the fact that the wills produced at the new trial this year showed that the land had passed from father to son and that the plaintiffs were acting properly as executors and trustees, Mr. Ground said.

"(T)he issue that was decided against them was one which could have been resolved in their favour had the evidence, which was readily available to them, been before the court,'' at the earlier trial. The plaintiffs could have appealed the Court of Appeal decision "appropriately and promptly at the time, but they did not''.

The judge noted the disputed land amounts to 5.43 acres between Tulo Valley and Mill Creek, but the defendants told the Court of Appeal to occupy less than half that area.

"In the light of that the defendants would probably face extreme difficulties in trying to mount an opportunistic claim to the balance,'' Mr. Justice Ground said.