OVERHANGING TREES.

Dominion, Volume 6, Issue 1681, 22 February 1913, Page 3

OVERHANGING TREES.

■ " DAMAGES FOR NUISANCE. ; Several'reserved judgments were delivered by Mr. Justice Chapmaii in . the Supremo Court yesterday.; morning. One of thestf. was -.in -connection -.with ,a rattier unusual', claim for damages in respect of caused r by ■ overhanging'''tfeesf were ,John«Hose,.-«ettler;~6t and -Isabella Itose. liis wife, plaintiffs, and the Equity Boot. Co., Ltd./ and. William Hannaiin, carrier, of Weillngton, .defendants. _ - . 10 hearing Mr.: ; : A.. Dunn appeared ;for the plaintiffs, while !Mr. C. P.- Sker.rctt, K.C., and C. A. llislop'nppeajed foiv the.defendants. ' ■ li'rom the statement of claim, itVappeired .that the plnintiffi ; Isabella-EosS '- JsV tho owner of a section of fronting Ingestre - Street, ar.<l, having' a dwelling-house-thereon. The" Equity Hoot ; Co.', Ltd., and William Hannafin aro tho owners and occupiers as tenants in common in equal shares of an adjoining piee£ of land. This latter pieco of land is - used as ft right-of-way to properties to tho south of the land ownwl by Mrs. Hose. Along this right-of-way there is : a lino t v< \ r y„ high trees, extonding .from... Ingestre Street to the:. hack--boundaiy 'of Mrs. Itcse s land.' ;It; is Said thaUthe.'defendants (the Equity Boot' Co. and William Hannniiu) have suffered tho trees to grow to such an extent that tho trees are a nuisance to Mr. and Mrs. Hof'o in their occupation of tho premises- adjoining. 1 urthsr, it is; said that the; trees' beat; against tho house of tho plaintiffs (Mr. mid Mrs. Rose), injuring the walls and roof, and. .disturbing the occupants by the noise; that tho leaves from the trees block up- the gutters,- spouting, and down-pipes of the house, causing them to overflow; that tho roots 'from tho treeshave grown the land and have blocked up tho plaintiffs' path, and crushed and blocked up tho. plaintiffs' drains. ~As the defendants (tho Equity Boot Co. and William Hannafin) had not taken steps to, abate the nuisance when copiplainfc was made, tho plaintiffs (Mr. and Mrs. Rose) asked the Court for an injunction restraining the defendants (the Equity Boot Co. land William Hannafin) iron.continuing the : nuisanco, and theplamhffs further claimed tho sum of ~«0 damages. In addition to n general,, denial. : . the statement of defence 'mentioned that' the trees were p.anted over 25 years ago by persons, other than the defendants? . ] t was said tkutho'plantihg had been'done in Hft n i°L Plaintiffs' predecessors IhJn i' " n . the alleged had been 15 * oll "" ti01 °! ll ° Tlfn ,I°/ ? i iu controversy before me. Hia to shoiy tliat the tieo that had done the damage complained of was a large willow treo in tho defendant s yard. I think it probablo is i il 00 ,"i! contributed, but I am -atisned that the main trouble camo from an offshoot from a thick root which came out from one of the five trees in the avonuo-of .which tho • plaintiffs complained. : It. is remarkable that tho reports of cases decided.in'-England. in tho course of several centuries contain so few cases of the kind. .1 tako it that this circumstanco points to somo common'understanding on tho subject." His Honour, liowover, - referred to a uthorifies, and..then, continued:— 1 think _ that so far ns tho branches aro concerned the . plaintiffs havo made out an actionable wrong. They extonded over tho house, brushed against it, and disturbed the plaintiffs in their sleep, hesides probably contributing to the leaves which blocked the plaintiffs' down pipe. It is true tliat tho defendants had %no right-to go upon tho plaintiffs' -at will to cut, tho branches but if they had asked leave and that had been refused tho refusal would have shown acquiescence on the plaintiffs' part. As it is Mr. Dunn had complained of the nuisance as early as June 28, more than three months before tho writ was issued, and that was ot itself an invitation to remedy the aril."

As to the damage caused by the root*, his Honour considered that this existed for a number of years before either \of the parties camo into possession o£ their respective properties. "If is true," ho added, that for somo months after plaintiffs' occupation there had been no breakdown of tho drainage, but a witness says thnt the rfiass of rootlets was choked with sewage matter, and it is probably to' this condition rather than any new growth that the stoppago is immediately attributable. On the part of the case respecting overhanging trees, I award .£5 damages. As to the costs I <;an only allow them on the scale allowed in the Magistrate's Court. I allow tho expenses of witnesses, save tlioso exclusively applicable to. tho question ,ns to the drain, and disbursements, save as to those witnesses. Thqse expenses will be fixed by the liegistrar." . >

' FOR GOODS SOLD. Reserved judgment was delivered by Mr, Justice Chapman la tho Supremo

Court yesterday in an action brought by William Nicholson, accountant, o> Wellington, against David Taylor, butcher, of Wadestown, to recover the sum of .£llß 165., 2d., alleged to bo due for goods sold. Plaintiff sued as receiver and manager for the debenture-holders of' tho Banks Co-operative Meat Distributing Co., Ltd., of Wellington. At the hearing Mr. H. F. Von Haast appeared for Nicholson, while Mr. T. M. Wilford appeared for Taylor. Mr. Von Haast stated that he understood that tho point would bo raised that Nicholson was not the right person to sue.- If his Honour so decidcd, counsel would ask permission to amend tho claim by joining tho company or representatives of debenture-holders, as might bo necessary. In tho meantime ho. would call evidence. After evidence had been tendered by tho plaintiff (Wm. Nicholson), Mr. Von Haast dossil his case, subject to the application mentioned above. ' Mr. Wilford did not call any evidence, but raised tho point that tho plaintiff (Nicholson) had no right to suo because— (1) Tlio •appointment of Nicholson as receiver had not been properly proved, - (2> tho receiver, if properly appointed, had no power to sue in his own name; and (3) tho pfroof of default in Clause 12 of tho debenture had not been placed be-, fore the Court. In giving judgment yesterday, his Honour allowed tho name of plaintiff to ba amended, and gave judgment for plaintiff, with costs according to scale. However, in view of tho amendment, the defendant was allowed £2 2s. costs, to be ■ set off against tho claim. Mr. P. W. Jackson, who appeared yesterday in Mr. Wilford's absence, mentioned that Mr. Wilford desired him. to ask for leave to appeal. His Honour: It is not necessary. He can appeal on giving security. Mr. Jackson: An appeal is intended on the ground—His Honour remarked that he did not require to know tho grounds. It was not necessary to get leave to appeal. CHANGE OF VENUE. A-summons for change of venue, in the, case of the C. A. Edgarton Manufacturing Co. v. Macky, Logan, Caldwell, , Ltd., which had been heard in Chambors in tho Supremo Court before Mr. Justice Chapman last week, was disposed of by his Hcnour yesterday. Defendants moved to have the case heard in Auckland, instead of Wellington. ' Mr. A. W..Blair appeared in support of the motion,-which was opposed, by Mr. T. Young, on behalf of tho plaintiffs. The caso involves an alleged infringement of a registered trado mark in tho sale of suspenders in His Honour granted tho chango applied fori Costs of tho application were fixed at three guineas, and made costs in the action. • : - FIXTURE MADE. Mention of the caso of Harcourt and nn'other v. Green was made fo Mr. Justice Chapman ycstcrdav. Tho case had boon set down for hearing yesterday, and Mr. J. C. Peacock asked if his Honour proposed, to take it at tho ■conclusion of the jury,'case. His Honour | did not care to' do this, as ho leaves today fo;' 'Nelson and Blenheim. Tho caso •was therefore fixed for Tuesday next, before ,Mr. Justice Sim. y '' -