LANDOWNERS AT VARIANCE

Dominion, Volume 15, Issue 14, 11 October 1921, Page 8

LANDOWNERS AT VARIANCE

THE RIGHT TO DESTROY TREES APPEAL AGAINST INJUNCTION DISMISSED The Court of .Appeal delivered judgment yesterday in the case in which William Spargo (appellant) and Charles Frederick Levesque (respondent), adjoining land owners at Massey, were the parties. In the Court helow, ths Judge had granted Levesque (plaintiff in the action) an order restraining Spargo from cutting down trees on plaintiff’s land, the trees having 'been planted by Spargo and ono Kealy several years before. The trees (wattle and gum) wore held by the plaintiff to be necessary to his business as a fruitgrower, on account of the shade and protection they gave to the orchard. The Judge granted an injunction, against which Spargo appealed. In dismissing the appeal, the Court stated: “In our opinion the right of an occupier to enter adjoining lands and to cut down and destroy trees planted thereon, in breach of section 26 of the Act, can only lie lawfully exercised after proceedings have been taken against the person planting the trees for a breach of the section and a conviction obtained, that is to say, that the prosecution and conviction are conditions precedent to the exercise of the right. . . . The person who, without taking the preliminary proceedings before-mentioned, exerciser the powers of entry and destruction conferred by sub-section (4) of section 26, takes upon himself to resolve all these questions in his own favour. It is true that if it should afterwards be proved that ho had acted wrongfully he would be liable in damages, but in the meantime he may have inflicted irreparable injury upon his neighbour, and might be unable to satisfy the damages proved to have been sustained by reason of his illegal acts. It is not improbable, moreover, that in cutting down and destroying the trees he might thereby destroy important evidence as to the illegality of his acts. It therefore ap'pears to us to be eminently reasonable and proper, and in accordance with the true construction of the Act, that before exercising the extraordinary rights conferred upon him by the Act of invading his neighbour’s land and destroying bis property, he should first obtain an adjudication by the appropriate tribunal that the trees, the destruction or remo’-al of which he desired, had been planted in violation of the provisions of the statute. . . . If it were held that the planting was in violation of tho statute, the person who planted them would have the opportunity of removing the trees while they were still young, and thus saving them from destruction. If ho did not avail himself of this opportunity ho would have only himself to thank if later his neighbour entered his land and destroyed the trees, as this supplementary remedy was no doubt conferred to meet the case—the offence not being a continuing one—of a person prepared to pay a fine in order to save his trees, or whatever else had been planted, and so to continue the mischief he had created In the present case, as no proceedings were taken against the respondent for an alleged breach of the Act in respect of Iho trees planted by him on lot 0 tho appellant has no right to interfcre with such trees, as threatened by him The injunction was therefore rightly granted, and the appeal is dismissed. with costs on the and as on a case from a distance.