THE LAW OF TRESPASS.

Dunstan Times, Issue 309, 27 March 1868, Page 3

THE LAW OF TRESPASS.

to thk editor of thk ddnstas times. ; The laws are expressions of the public ' will, and, when dictated by intelligence, are synonymous with right ami reason. They \ detine the several duties and obligations of | the members of society, The laws should I. intelligible to all;: but, so multiplex and contused arts the laws '. of New Zealand, so vague an i various are j the enactments and ordinances -many of them restricted in their application by local limitations—that an unleaniet citizen may I well be excused (morally if not legally) if j unacquainted with their requirements. The following remarks on the "rationale" j of the law of trespass have been suggested ! by perusal of your report of the proceedings in the District Court in the actions brought forward for recovery of damages to agricultural crops by the trespassing of cattle. Smitfc, Jones, Brown, anl Robinson arc neighbor:), residing on'a common. Smith has a cabbage garden, and .rimes' owns a cow, which grazes on the common. The cow-'naturally prefers Smith's, cabbages 10 the native grasses, and is with difficulty kept out of the garden, Smith's constant attention being required to ] revent the tic strtiction of his crop. Hoth parties.have equal right to make use of tho common- - Jones for the purpose of grazing, and Smith for gnwing cabbages. In consequence, however, of the partiality of the cow for cabbages, the exercise of these rights are incompatible with each oilier, and Smith makes complaint to Jones respecting the injury and loss inflicted on him by the propensities of the cow. Does Jones reply "If you cannot watch your cabbages you must put a fence about them which the I cow cannot, yet over?" By no means. Jones I is an intelligent man. and moreover conscientious, and knows that neighbour Smith ■ has as much right to occupy the common as j himself, ond suggests that he would assist : Smith to fence oIT his cabbage garden., but that Brown has a pa'eh of potatoes and j Robinson a crop of oats, which would also | require fencing, and concludes that he will himself fence off a paddock for the cow, so that she may not in future roam at large i It seems to Smith that it is possible the ! cow may break r'own the paddock fence, so I he also determines to put up a substantial j fence round the cabbage lar'Vl. Tims j both parties are relieved from the necessity ; of personal surveillance, and the rights of ! both secured. Henee'Yinvard it becomes an established custom that-each person protect his own property, and also prevent bis cattle from injuring the property of his neighbor. In customs thus established and fixed by decisions of Manorial Courts, Courts Leet, &c, the laws of Kngland originated, and they secure the just rights of individuals. The condition of England in former times

was somewhat similar to that of these colonies at present. We find from mcdiicval liistory that the ox-herd or cow-herd, swine-herd, or sheep-herd, were ordinary servants to farm establishments. The occupations of these herds consisted in tending the cattle, ftp., on the unenclosed territory, custom, and afterwards law. prescribing the obligation on owners of livestock or preventing injury to their neighbors' property. The principle of the law is strictly just. "Take care of thy own property, and injure not the property of thy neighbor,''is a maxim evidently based on the golden rule of conduct, " Do unto others as you would have others do unto you,'' With respect to the decisions of the Court in the cases above-mentioned your report makes the .Judge to say " 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 each person was supposed to look after his own cattle, and prevent them from trespassing. . . ..." The laws of England are the Palladium of colonial liberty, and do apply where not superseded by colonial enactments. Perhaps the meaning of the Judge is misapprehended in the report. Probably he said, or intended to have said, that the circumstances were different in England, inasmuch as cattle were ' not allowed to roam at large as in thi?

country. But this circumstance does not I exonerate tlie owners of cattle from the obligation of looking after them, nor from liability to make compensation for damages to private property caused by neglecting to do 80. With respect to partition fences. There are a great variety of fences in different parts of England, and various local customs. It is known which portions of the boundary fences of estates shall be repaired by each proprietor, and each is responsible for injnry caused by his neglecting to keep his portion of the fence in proper repair. The same principles are applicable here, with this difference, that custom anil law has not yet prescribed the respective obligations of adjoining proprietors nor the character of a '' sufficient" fence. These cases show the inadequacy of the present Provincial and Municipal systems to the requirements of the country districts, and point to the necessity of institutions having authority to make local regulations for the occupation of the public domain, for facilitating intercommunication, promoting the intellectual and social improvement of the people, and for the general management of local affairs. I am, &c. COLON US. March 25, ISGS.