TAURANGA R.M COURT.

Bay of Plenty Times, Volume IV, Issue 344, 25 December 1875, Page 3

TAURANGA R.M COURT.

Wednesday, December 22,1875, (Before Major Roberts, R.M.) JAMES FENTON Y. ISAAC WILSON, Claim £7l 2s s|d. Case adjourned from last Court day. As there was no appearance of tha plaintiff the case was struck out.

TUNES v. BILL.

Claim 10s, for illegal impounding of two horses, the property of the plaintiff. Captain Tanks deposed : On the Bth Dec. defendant impounded two horses belonging to toe which I consider was illegal, as the horses were running on unfenced and uncultivated land, which defendant states belongs to him, as he has leased it from the Rev Mr G race ; I seek protection under clause 13 of the Auckland Provincial Impounding Act. By defendant: The land in question is not under cultivation ; I do not occupy any land in the vicinity of whore the horses were impounded. By the Court; To my knowledge the land has never been ploughed ; I am not aware of any seed being sown on the land, or that it has been cultivated in any way since I have been here. Mr Samuel Clarke deposed: I know the land commonly called ” the run,” section No. 2; part of it has been cropped next the Cameron road ; some of Mr Grace’s own property has not been cultivated in my time i I had the greater portion of that land under cultivation between the years 3861-62 ; just before the Waikato war, in the hurry of leaving X sowed two or three pounds of white clover to the acre on the stubble, without ploughing, with a pound or two of cocksfoot grass on the side next Mr Grace’s; it has never been turned up or touched since then to my knowledge; I certainly do not consider it under cultivation now after the lapse of so long a period; three-fourths of it is covered with fern, and the rest with a species of wild dandelion spotted with clover ; I have some fern land of my own that has never had a seed sown on it on which there is far bettor grass; I have no cattle running there. By the Court: If the land leased by defen' dant belongs to Mr Grace I know it; the seed sown did mot extend over the whole of Mr Grace’s property. Mr Robert Kirk deposed : I know the Eev. Mr Grace’s land on section No. 2, commonly called “the run”; there was a great deal more fern on the land when 1 first knew it 10 or II years ago than there is now ; it has been used for a race course ; it was mown for two years to my knowledge for the purpose of making a course; Ido not consider the land under cultivation now; it has never been cultivated since I have known it; for ten years past there has never been a plough on it. By defendant; lam a settler ; lam in the habit of running cattle on this land; 1 appeared in a previous case when this land was in question ; I do not remember what I valued Mr Clark’s land at or the land you now lease; I feel interested in the case; the land is clearer of fern now than it used to be; the fern was mown for the racecourse on Mr Grace’s property and also Captain Johnson’s. By the Court: I never knew of any seed being sown on this land. Mr Stephen Earl deposed : I know all the land about the spot commonly known as “ the run”; when I first knew the land it was in something like the same condition it is in now; that was nine years ago; Ido not consider the ground under cultivation now; it has never been cultivated since I have known it.

By defendant: The word cultivation is commonly used in England when land is ploughed up and a crop got off it} I believe when a piece of land is laid down in grass it is not considered under cultivation \ I believe there is as good grass on the ground of yours as in some of the paddocks near it that are fenced in; I do not consider there is more fern there than in the paddock I was mowing yesterday for Mr Chadwick. Mr Banders, poundkeoper. deposed: I re* member defendant impounding two horses of the plaintiff’s; they were impounded for trespassing on land leased by defendant from the Bev. Mr Grace ; I received 2s 6d for each horse; no particular block was mentioned, but the land was uufenced; the document produced in Court is all that is nocesaarj for me to act upon, By defendant; It is customary to impound off unfenced land ; the Impounding Act is in force in this district.

Mr J. A. Chadwick, the first witness on behalf of the defendant, deposed: I am a settler; I know the land opposite Mr Samuel Clarke’s, known as the Bev Mr Grace’s pro* perty; I decidedly consider that hnd under cultivation : it is not necessary for land to be ploughed up every year for it to be under cultivation; I have had cattle of mine impounded off open fern land. By plaintiff: I consider land under cultivation after a lapse of 14 years if artificial grass still remains; I have known the land in question eight or nine years; the land would be in a wild state if cattle were not running over it; I consider the land in question under cultivation. By the Court; I do not know of any seed having been sown on this land. Mr Jonathan Brown deposed: It is not necessary to plough land every year to make it under cultivation; if the grass seed is allowed to drop into the ground instead of being taken away it is not necessary to sow seed j I consider the land is under cultivation. Ey plaintiff; I consider that if it was 14 years since the land was ploughed and a crop taken off that if grass still remains, the land is under cultivation; I have impounded cattle off unfenced land which was laid down in grass it might be 20 years ago; I consider that land once having grass on it, and being stocked, to be under cultivation, but if not stocked it goes back to its original wild state. By the Court: I know the land in question since 1868; I am not aware of any seed having been sown on it. Mr Mclntosh deposed : I was with the defendant when he impounded two horses ; there was very good grass on the land ; the principal species wm dandelion and trefoil; 1 have not been in Mr Clarke’s paddock this season, and cannot speak as to the quality of grass in it j I believe the trefoil on the land belonging to defendant is New Zealand trefoil; the laud bo in. its wild state

for anyone can see that it has been ploughed, By plaintiff; I consider that if laud is stocked and grassed, no matter how long since it was ploughed, it is still under cultivation. Mr Samuel Clarke deposed: 1 know the land in question j I do not remember saying anything to defendant about it being l time it was considered private property j I consider my paddock under cultivation j it is about six years ago since I ploughed it | I do not know if the Rev Mr Grace’s land in the swamp is fenced in j I never impounded, or caused to bo impounded, any cattle at Otumoetai off fern land. By the Court; I think some of'the land leased by the defendant must have been sown by me with grass and clover. Mr David Bill produced hit receipts for the rent of the land and for highway rates. He deposed; I wish to claim the protection of the Court under the Oth clause of the Fencing 4ot Suspension ict; I have paid rent for the land and have paid the rates for it; there are a lot of people in the town who neither pay rent or taxes who are running their horses on this land, and it has now become a perfect nuisance. By the plaintiff; There is other land besides that rented by mo on the run. The Court ruled that as the decision in this case affected not only the litigants but the public at large, time would be taken to con* aider the judgment, which would be deferred until 10 o’clock on Thursday. JAMES BENNETT T. CMBEBBOUOH, Claim £7O IBs 6d, for a balance owing for building a shop and other items. The defendant acknowledged the debt, but not as being due. The plaintiff deposed that he had built a shop for the defendant about April last on the undemanding that he was to be paid certain sum coming to defendant on accoun of work to be performed by him j this sum he had not received, and, though ho admitted having agreed to give the defendant time in wl ich to pay for the shop, yet the time was not to indefinite; the defendant had never expressed any dissatisfaction at the way in which the work had been completed. The defendant pleaded that as the building was rot water-tight or finished according to specifications \ and further, that as the plain* tiff had a reed to wait until he was able to pay him, the sura was not due as soon as the work was completed ; he would pay the plaim tiff as soon as he was able; Three witness confirmed the evidence of the defendant as to the work not being completed and the building not being water tight. The Court decided that the plaintiff had not established his claim, and until ho finished the building according to specification he was not entitled to sue for the amount; the plaintiff to pay costs; IBIEGAB SBIIZtJBE.

Mr Firth Wrigley claimed a working bullock seized bv the bailiff of the Resident Magistrate's Court under a distress warrant against the goods and chattels of one James Gregory, in tbe suit of Ranapia v. Gregory. Constable Whelan deposed to seizing the bullock from James Gregory, and statod that son e time Gregory had told him that the bullocks he was working were hia property, and he also understood from other people that they were so. Mr Firth Wrigley deposed that the bullocks worked by Gregory were only hired from him (Mr Wrigley) at a weekly rental, and that he was the owner of them, but as the Court required further evidence as to the ownership of the particular animal seized under warrant, Mr Wrigloy applied for an adjournment of the case to bring the evidence of witnesses, which was granted. The ease was subsequently settled by Ranapia abandoi iug his claim to tho bullock, the amount of his claim being settled. TutrasDAY, Decembib 23,1875; (Before Major Roberts, R.M-) TCNES V. BIH&. Judgment in this case was given as follows i —"That Mr Clarke's evidence shows that grass seed has been sown upon the land off which the cattle were impounded, and further evidence proves that the land is in artificial grass. Upon viewing the whole of the evidence the Court is of opinion that the land is under cultivation, and that the cattle were no!; illegally impounded. Judgment given for defendant accordingly J plaintiff to pay costs."