DISTRICT COURT, CLYDE

Dunstan Times, Issue 308, 20 March 1868, Page 2

DISTRICT COURT, CLYDE

Monday, lGth March. (Before Wilson Grey, Esq., Judge of District Court.) Kidd v Goodger.—Claim for .£SO, damages sustained to Crops and fences hy the breaking in of defendant's cattle. Mr W. L. Bailey foi Plaintiff. Mr. T. L. Shepherd f..r defendant. Mr. Shepherd took an objection on | the ground that the District Courts Act had not been complied with, inus much as Plaintiff had not lodged full particulars of his claim, six cl ar ! days liefore the day of hearing ; with j the consent of Mr Shepherd, the case ' was allowed to proceed Defendant pleaded not guilty, and that Plaintiff was not lawfully in posession Mr. Bailey explained that plaintiff had applied for the ground under an agricultural lease, he had lodged £lO deposit, with the Warden of the District, who gave him, the Plaintiff, the necessary notices of application to | post up, also, that the ground had been surveyed by the Mining Surveyor. Upj on the strength of this application, | plaintiff fenced iii the ground, by erecting a secure fence, he then put in ; his crop,. Defendant's cattle had been repeatedly found in the crop and turnI ed off; the actual damage done, a- ; mounted to .£l2O, but £SO was only claimed. Robert Kidd, the plaintiff, sworn, deposed : —That he held in possession I a farm at Cromwell Flat, it was fenci ed in by a sod fence, six feet in height, from bottom of ditch to top of fence ; the ditch was five feet wide, and two feet deep, The land'was applied for under tho usual Agricultural Lease system, and eighteen acres I had been fenced in out of the fifty applied for, the crop consisted of six acres of oats, four acres potatoes, and one acre peas, the remainder, with the exception of a small patch uncul tivated, was filled with garden vegetables- On the 16th. Nov. last, plaintiff turned out of the enclosure or paddock thirteen head of defendant's cattle ; he knew they were defendant's cattle; observed that part of his oats had been eaten down, they were then about ten inches high, the crop was eaten about six weeks ago; only obtained about twenty five or thirty cwt. of hay off the six acres ; ought to have had at the rate of two tons to the acre: some of the farms about Cromwell had given three tons to the acre. Hay is now worth £lO per ton at Cromwell; had several times written to the defendant about his cattle, the papers produced were copies of letters sent to Defendant. Cross examined by Mr. Shepherd. The land is a part of Mr. Loughnan's run, had applied for it under an Agricultural lease ; never received an answer, that the application would be granted, do not know that the land occupied by me was withdrawn from the Run, considered it my property ; the fence was a suitable one to keep out cattle, the sods were from four feet six inches above the level of the ground, the depth of the ditch was two feet, this was the condition of the fence when the cattle brokein. Where a water-race runs, the sod wall is three feet high, in some places it may be below two feet six inches, never measured the fence with a rule, the water race mentioned, will carry from j thirty to forty heads of water, the

race is more than four feet wide where it passes my fence, cattle could not cross the race to get to my fence, was not aware of any ledge betwoen the race and the fence, posessed two cows himself. On the third hist, he saw cows in his poddock, could not estimate the amount of damage done then, some portion of the land is bad, his land adjoins that of M r. Barry, If cattle got into Mr. Barry's land, they could walk into his (the Plaintiff's,) the dividing fence is from two feet six inches to three feet high, there were openings through which a cart could be driven, the openings were not made in November last, the dividing fence was erected by Mr. Barry, his (Plaintiff's) paddock extended beyond Mr. Barry's, no cattle entered his paddock from Mr. Barry's in November last, Re-examined by Mr. Bailey.—Mr. Barry agreed for me to use a portion of his (Mr. Barry's) fence as a divid ng fence, only once was any damage done to the fence where the waterrace runs; always brought his cattle home at night, and put the calves in a yard, the cows always stopped alougside ; saw the openings in the dividing fence at the end of November last, after the damage had been done. Re-cross-examined by Mr.Shepherd —Some of the damage was done in December, could not tell what portion of the damage was done in that month. Gilbert Starke, a farm servant in the employ of Mr W. J. Barry at Cromwell, sworn, deposed —Knows P'aintitl's farm ; on the stb Cth and 7ih November last turned out cattle from it, did the same again on the Bth saw the cattle eating and treading down a crop of oats, a good deal was destroyed. On New Years day, he turned out eleven or twelve more cattle. The oats were a thin crop, had been for some time accustomed to farm work; the land in the neighbourhood of plaintiffs farm should give about two and a half tons of oaten hay to the acre, plaintiff's crop should have give > about two tons; could not swear that the cattle belonged to defendant, believed they were some of his herd. Cross examined by Mr. Shepherd. —Recognised four of the cattle as belonging to defendant; the fences were substantial, the water-race was about four feet wide ; once saw two horses in the paddock, they had jumped over the fence ; when the cattle broke in, the wall from the bottom of the ditch was six feet high, the ditch six feet wide; some portion of the paddock is gravelly and sandy It cannot be es ti mated how a crop will turn out, when it is only six or cLjht inches j high. Re.exami ed by Mr. Bailey.—'! he present season was a most favorable one for crops. Henry Partridge, dairyman, sworn, deposed.—Was living at the Low bum, knew plaintiff s farm, had seen cattle! ill the cultivated paddock, had seen cattle there in November last, bel.eve the cattle to belong to defendant ; had j seen the crop, and believe it to be a very poor one the ground was poor, and there was no show fur a crop. Cross-examined by Mr. Shepherd. —Plaintiff's fences are not sufficient to keep out cattle, have seen horses in the paddock upon a great many occasions, the horses belonged to Mr. Barry, the horses used to jump over the fence with hobbles on, this occurred during the mo ,ths of November and December. Be-cross examined,— The horses were in the paddock before the cattle In October last, a portion of plaintiff fence was down, the fence appeared to have fallen down. George Partridge, a lad, and brother of last witness, sworn, deposed,— Knew Plaintiff's farm, saw cattle in the crop in January last, had milked the same cattle for defendant. Henry Tobin, in the employ of Mr. Kidd, sworn, deposed.—ln November last, the crop looked very promising, the land is not as good as in other parts of the Cromwell district; sawthat the crop had been damaged in the early part of Nov. last, had mend ed the fences upon two or three occasions, the fences were as good as any in the district, delivered a letter to de fendant from plaintiff complaining of the damage, defendant told witness to get some men to mend the fence, and he would pay, also he would settle about the damage. Cross-examined by Mr. Shepherd.— The soil is middling, in some places there is sand and gravel, was not an expert in farming matters. Charles Goodwin, farm laborer in the employ of plaintiff, sworn, deposed. Had ploughed up the ground in question, it was middling according to what was in the district, should think it ought to carry from two to three tons of hay to the acre. On the 13th and loth January last, saw defendant's cattle in the crop, there was but little of it standing then ; the fences measured six feet from the bottom of the ditch, the soil is suitable for wheat; there are patches of sand and gravel. It is possible for a crop to look well, and then fall off. William Jackson Barry, sworn, deposed.—Held the farm adjoining plaintiffs ; saw the oat crop on the 20th December last, it looked very good, had seen defendant's cattle in the paddock ; the crop should have yielded from two to two and a half tons of hay to the acre. Cross cxamineO >y Mr. Shepherd. ■ —Did not consider there luid been

any damage done to plaintiff's crop on the 2<3th December last. This con eluded the case for the plaintiff. Mr. Shepherd in opening his case urged, that no title had been shown to the land by plaintiff, and that it was a portion of Mr. Loughnan's run.. His Honor over-ruled the objections. John Marsh-, a publican, residing at Cromwell, sworn, deposed.—Had been engaged in farming operations. Knew plaintiff's farm for the last four years, saw it seven or eight days ago. '1 he fences on the south side were in pretty good order, and fairly cattle proof, the weakest portion of the fence was on the Western boundary, i ear the water- race, the race was four feet six inches wide, there was a sort of a shelf or l«lge between the race and fence, the fence then was from fourteen inches to two feet bi< inches in height, cou d walk into the paddock without difficulty ; had observed the dividing fence between MiBarry's, a portion of it was down, the fence along the race was not sufficient to keep out cattle. The land was very poor, if anybody wasto fence and crop it, he, witness would not have it as a gift ; the .soil is sandy and grave ly, never saw a good crop growing on it yet; potatoes might have grown on it for one or two seasons. On all poor sandy soils, the crop looks best when six or eight inches high. Knew plaintiff carted a lot of manure to the land. He once had a farm seven miles from Cromwell. Never obtained two tons of hay to the acre, nor one ton upon an average; a person eould easily step across the race, and thence across the fence into the paddock, cattle could enter easily ; the mi tare of the soil is gravel and sand, like tailings. William Trudgen, nvorn, depo ed- — Had been farming in England and in Australia: was now engaged in mining knew plaintiff's farm, the fence near the race is eighteen inches high, the race is three feet wide, have ridden up and down the race, the soil is sand and gravel on the Cromwell Flat, Never saw any oats in Plaintills farm worth cutting; plaintiff told witness in December lart, that his crop was not worth cutting. Charles Elliott in the employ of defendant, corroborated the evidence of last witness. Ceorge W. Coodger, the defendant sworn, deposed.—That he held an agreement with Mr. Loughnan to depasture cattle on his run, he was to pay ten shillings per head per annum, the laud occupied ly plaintiff, is a portion of that run, plaintiff's fences were not cattle proof. John Kenny a farmer residing at Clyde, sworn, deposed.—Knew plaintiff s farm saw it on Tuesday week last, should not ex] ect a heavy cr«»p from the land, would not like to faun it himself, the soil is sandv and gravely. Cross exrinined by Mr. Bai'ey.— Should not like to plant oats n] on the chance of getting two tons of hay to the acre. This concbidcd the case. Mr. Shepherd addressed the Court, at length, on behalf of the defendant. His Honor reserved his judgment. Barry v Coodger. Claim for £M damages to crop and fences, by defendants cattle, about the Bth and Bth January last. Mr. W. L. Bailey for the Paintiff, Mr. T. L. Shepherd, tor the defence. This was a precisely s'milar ease, and equally as contradictory, the same Witnesses on either side were called and examined. These gentiy had evidently been studying the immortal case of Bardell v Pickwick, and had profited by Mr. W'eller's advice to his son, when that worth v re. commends, an li aliby," Sammy, nothing like an " aliby " Sammy. His Honor proceeded to give judgment in the first ease, and summed up most elaborately, said that, he thought that some portion of the damage complained of might have been done by Plaintiff's own cattle : it was a mistake to suppose that where a great, deal of damage had been done, one particular lot of cattle caught trespassing should be answerable for the whole. It was necessary for plaintiff to prove that the trespass was committed by defendant's cattle, and under inexcusable circumstances, that they did not enter where the fences were already broken down, some of the damage might be attributed to the cattle breaking down the substantial portion of the fences, some to where the fence was insufficient, and some might not have been done by the de fondant's cattle at all. The law as relating to Hundreds, was not admissible on the Goldfields, nor could the law-, as administered in England be scarcely applied here. In England, everyone was supposed to look after his own cattle, and prevent them from trespassing; for instance, a person having a pasture, could not expect without fences, to keep cattle out; each party should take sufficient care of his property, and where there were crops, reasonable fences should be provided. The evidence was very contradictory, there appeared the fact that plaintifi had erected a reasonable fence towards the road, but not so towards the water-race. An intelligent witness had deposed that the crop looked well on the 20th December last, consequently, any damage must have been done after that date His Honor did not think it excused a trespass, where only a portion of the fence was not cattle proof, and the cattle did not entei bv that Weakpor-

I tion, but burst through the strong por I tion : was of opinion, that after a per- ! s ou had been in peaceable posessiou : of laml for some time, no stranger u ad a right to molest him. Damages £lO and £5 witnesses expenses. On giving judgment, in the succeeding case, his- Honor remarked, that the same general observations were applicable; any other trespass committed on Mr. Barry, than through the dividing fence, was inexcusable, e sewhero Mr. Barry had erected a reasonably secure fence. In England it would be ruled, that cattle trespassi,i<r in one enclosure, provided they walked into another, and ever so inefficient a fence intervened, they would be considered to have trespassed in both cases. Kidd's fence in one portion being insufficient, cattle enlevin" that wav, and afterwards getting into Mr. Berry's crop, the trestpass would be excusable. i hough the amount of damages claimed had not been over estimate,!, the question was, how much of the damage was defendant accountable for. Verdict for £ls and £5 10s Od witnesses expenses. There were a number of debt cases heard, not of sufficient pibfic interest to call for a report.