MAYOR’S COURT.

Evening Star, Issue 2854, 12 April 1872, Page 2

MAYOR’S COURT.

This Dav. (Before his Worship the Mayor.) DRUNKENNESS. Nicholas Walsh was fined 5s for the above offence. REMOVING a fence from the botanical GARDENS. Samuel Crafts was summoned, under the provisions of the Towu and Country Police Ordinance for removing a portion of the fence from the Botanical Garden*, the property of the Province of Otago. Mr Bathgate appeared on behalf of the Provincial Government ; Mr Haggitt for the defendant. Mr Bathgate said his Worship was aware that the Botanical .Gardens was formerly a portion of the Town Belt, which had been enclosed by the Government for the purpose of forming a place of recreation for the inhabitants of the City of Dunedin. He could not think that any person wishing to call himself a good citizen, and having no excuse in law, would have acted in the way Crafts had done. He believed, however, he was not entirely acting for himself, but that it had been sugge.ted by another person with the view of extorting money from the Government ; for unless it was for some object of that kind, he saw no reason why the fence should have been removed. The fence was put up for the protection of the public fiom injury; and if formerly any right-of-way did exist, it bad been swept away twice by floods and rendered impassable, and another road substituted more convenient to the public. But assuming there was a passable road, which he did not admit, it was a question whether the defendant had a right to remove a fence which had been put up by public authority, and he should have gone to the authorities, and not taken the law into his ow r n hands. It was held by Todd that a private person in such a case was not allowed to take the law in his own hands, unless there was a special injury. It was upwards of two years since the Gardens had been made, and defendant had never interfered until the present time; and seeing there was a bridge and a precipice near this place, it would have been dangerous for the public had the road been kept open. His acquiescence in allowing the fence to remain for two years proved he had suffered no injury, and he considered defendant by his action had brought himself within the provisions of the Police Ordinance.

Alexander M'Greur, manager of the Bo* tauical Gardens, said he knew Crafts; and on Monday last, when he was working in the garden, he saw him with two men outside the fence. They were standing near the old crossing where the. bridge formerly stood, and where there was a precipice ten or twelve feet at the side of the stream. He recollected the fence being put up to protect the public, and he considered that if a man went along there in the dark without it he would probably lose his life. Crafts acknowledged he had cut the fence. He remem* bered that a road had been formerly existed there and a toll-gate. Archibald .Rutherford, labourer in the Botanical Gardens, said be knew Crafts, and heard him admit he had cut the fence down. Thomas Neale, sergeant of police, said he was sent for by M'Greur, and saw a panel ten feet wide taken out of the fence. He considered it necessary for the public safety that the bridge should have been fenced off. Mr Haggitt, for the defence, admitted the removal of the fence, but contended defen. dant had a perfect right to remove it, as it obstructed a public road which had existed there for a long time. His Worship must be aware that many years ago the road in question formed a portion of the main north road, whose stoppage had been a serious injury to Mr Craft, who kept a public house, and who, before the diversion of the traffic by the formation of another road, did a large business. He heltf the Government had a perfect right to make another road if they liked, but if by so doing they caused an injury to Mr Craft or anybody else, that private individual had a right to compensation. Mr Craft had endeavoured to obtain this from Government without success, and he had been compelled to adopt the course he had to obtain the same ; and why he had remained so long quiet was for this reason. He urged that no road could be closed without a special Act of Parliament, or without taking adtage of a special Act of the Assembly, enabling the Provincial Government to stop a road and divert a stream by compensating parties interested. If an illegal act jjatf been committed, it had been done by the Government in digging up a metal road and converting it into a garden. The question would be fought elsewhere, unless the Government took some steps, and advantage had be m taken of the forthcoming meeting of the Council in the action that had been taken.

Archibald Eoss, draughtsman in the Survey Oiiice, produced record groups showing how the; road way formerly existed. His Worship said there could be no doubt that once there had been a public road at the spot indicated, and one question was whether the whole of the public had a right of way along that road, and another was whether Government had the right to place the fenee there. Supposing the Government had a right, another question was, whether the defendant had taken the j roper meaus to maintain his own rights in acting in the manner he did Upon this question he had some little doubt, and ho would reserve hi* decision till Tuesday next.