SUPREME COURT.

Evening Star, Issue 3102, 28 January 1873, Page 2

SUPREME COURT.

CIVIL SITTINGS. This Day. (Before his Honor Mr Justice Chapman and a Special Jury.)

The following jurymen were respectively fined 40s for non-attendance, namely:— Messrs G. H. Campbell, J, Hislop, W. Guthrie, J. T. Wriuht, and David Ross. Egbert Hartley v. John Smith.— This was an action for damages for alleged trespass, illegal possession, and use of a piece of land assumed to be the property of plaintiff. It seems that about fifteen years ago the plaintiff became owner of, and has since occupied, section 10, and parts of sections 1 and 2, at the North Taieri. About the same time, a man named Riddell became possessed of the land adjoining, known as section 9, and the half of sections 1 and 2, Two years after, or thirteen years ago, plaintiff resolved to fence in his land, and consequently employed a surveyor, named Morrin to test the correctness of the boundary lines. He discovered that the dividing line on sections 1 and 2 was marked by pegs, encroaching about fortythree links on plaintiff’s land. Pla ntiff therefore remonstrated, asserted that the pegs had been moved, and that an attempt had been made to deprive him of a portion of his property ; but nothing further was done in the matter until about seven years ago, when Riddell sold out bis interest in the land, and the present defendant, John Smith, became occupier of it. Plaintiff, at this time, again laid claim to the piece of land in dispute, but said, at the same time, that he would not disturb the boundaries, as then fixed, until it heiame necessary to erect new fences. Meanwhile he asked defendant to jqin with him in obtaining the services of a competent survey or to again test the correctness of former survey. Defendant refused to agree to this, and when it became accessary to erect a new fence he employed an efficient surveyor, who corrobora’ ed the result of former survey. Plaintiff again claimed possession of the land, and was refused. It was further alleged that defendant had cut a drain on plaintiff’s side of this disputed piece of land, and also that defendant’s cattle were allowed to trespass on the remaining portion portion of plaintiff’s land, to the serious loss and inconvenience of plaintiff. Wherefore plaintiff now sought to recover Lsi)o damages, and possession of the land in dispute. Defendant denied all the allegations contained in the declaration, and pleaded that he was justified in retaining possession of the land, and that trespass, if any, was the result of plaintiff not maintaining his fences in perfect condition; and that, therefore, he was not liable to damages. Mr Stewart with Mr Shaw appeared for the plaintiff, and Mf Barton, with Mr Stout, for defendant. John Smith, defendant, said : I am a farmer at the North Taieri, and am not in possession of any laud the property of plaintiff. I hold my land under lease, and two years have yet to run before it expires. John Hay, surveyor, said: I am in the employ of Messrs Gillies and Street. I surveyed the land shown in the plan produced. It is correct. I drew it from my own field-book. The fence purporting to divide sections 9 and 10 takes from plaintiff’s section an angle eighteen licks at the base, and fifteen chains and five links in length. I know these sections, I got certain information at the Survey Office, ami from that information I took the block line or district road as my base. I saw pegs on the south end, between sections 2 and 3, at the corner of sections 4 and 5, and at the west corner of section 5. The road is south of the line between these pegs There was one old peg on the north line, between sections 9 and 10.—Cross-examined : I have been a surveyor about three years. The land was nob altogether fenced between the road and sections 1 and 2, and I don t think it ever was wholly fenced. The spots where I found the pegs at ttye east and west corners on the South Road are marked on the plan. I did not take the linkages of these pegs. These sections are supposed to be 1,000 by 3,500 links. Some of these old surveys are imperfect, some of the sections being short measurement. I cannot swear that the north road is in its proper place or not. The two sections on the south line are ten links short of ./proper measurement. I did not see the field books of the original survey, and cannot say whether the east road is equally correct with the south line. he southern fence of section 2 is 31 links out, and encroaches that distance on plaintiffs portion of the section. The map of survey by Kettle is dated 1846-47. J 9annot state the difference of compass variations between this map and that worked out by me. My map was worked out from my field-boo c, and not from the tracing I obtained at the Survey Office. I know Mr Thompson, Chief Surveyor, and consider him competent to make a survey, I do not consider that it is necessary to explain the original survey before making a re-survey If Mr Thompson thought different, I would yield to him. 1 did not t.-st the base line. If it is rl 8“t, I am certain that my survey is right. Witness was then examined as to the relative positions of the various pegs found on the different survey lines. Re-examined ; If the lines intho original survey plan corresponded, each party would have his proper quantity of land, Robert Billies, .authorised surveyor, said ; The last witness is a thoroughly competent and accurate surveyor. I checked the survey of last witness on the land on the Hw

mat. I checked the map produced by my own field-book, and found it correct, within reasonable limits, and have no doubt whatever as to the accuracy of this survey, and also as to the encroachment. I mean by “reasonable limits,” anything within eight links over a mile, in chain surveys, and, in triangulated surveys, anything within two links ; anything beyond these numbers would indicate inaccuracy. In old surveys, one must exercise his own judgment, for he never gets anything like an absolute start. In triangulated surveying it is different. [Left sitting.]