SUPREME COURT.

Evening Star, Issue 3104, 30 January 1873, Page 2

SUPREME COURT.

CIVIL SITTINGS. This Day. ( R ef©re his Honor Mr Justice Chapman and r a Special Jury ) Hartley v. Smith.— This was an action for LSDO damages for alleged trespass and illegal occupation of a piece of land at the North Taieri. Mr Stewart, with Mr Shaw, for the plaintiff ; and Mr Barton, with Mr Stout, for defendant. The examination of plaintiff was resumed. Fie said—ln 1871 I forbade defendant making the ditch referred to. Within the last three years I saw defendant’s cattle almost daily trespassing on sections 1 and 2 of my land. Lust year 1 was much troubled with ihem. I had to be on the ground Sunday and Saturday to keep them off Cross-ex-amined : The blue line in the plan shows that I have somewhat encroached on defendant’s ground, but 1 am pr pared to pay half the expenses of setting t'-e matter right. '- r rant told me of this encroachment in November, 1871. I have not used that piece of ground since. I did not show Smith w: ere the ditch was to be cut. I paid half the expenseo-outtingit, to Smith, about eighteen months after it had been cut. In October, IS7I, I was sued by de r endant for the cost of erecting a length of fencing between sections 9 and 10, an t lost the case. This fence was on the ground now in dispute. Smith asserted, and I denied, in the Resident Magistrate’s Court, that we had agreed as to the line. We had different lines. The fence was re erected on the same line it had always been on. There was no deviation whatever. David Robertson said : I cut the ditch in question. Icutit on the south skleof thefenee ou section 1. I found a ditch on that side of the fence. I continued it through section 2 on the boundary of section 3. When Mr Smith engaged me to cut the ditch, he said it was to dry the triangular piece of ground. Smith told me at that time that plaintiff had promised to pay half the expense. Smith paid me for the work, and a year afterwards he said I had made a mistake in the receipt by not putting Hartley’s name in it. I replied that I would examine the matter, and on a subsequent occasion I said to Sm:th that 1 1 could not alter the receipt. Smith said there was a misunderstanding between him and Hartley about this and the fence. Plaintiff did not give me any instructions about the cutting of the ditch, John Hartley said : I am in the service of the plaintiff, About August, 1871, I was chaining along the west side of section 2, when a conversation took place between plaintiff and defendant. Plaintiff said he was chaining the line to see whether it was correct or not, when defendant asked when he would be ready to go on with the fenee. After deciding on the description of fence to be erected, they separated without fixing on the line of boundary. On another occasion, Smith asked when they would proceed with the fence, and Hartley replied that he was ready at any time, on the following conditions: —Firstly, that they should themselves first equally divide section 2 ; or, secondly, that they should get their neighbors to do it; or, thirdly, that they should mutually employ a surveyor to do it. Smith replied that for aM the time he would be there he would not go to the expense of a surveyor, but would stick to the line Hartley gave him. Hartley then said, “I did not give you any line,” In December, 1871, Smith was putting in posts, when Hartley went to him and said, u There is no use in your putting yourself to unnecessary trouble. Jf you will come with me I will show you Grant’s pgg.” Smith said, “ I will have nothing to do with ths.t line ; I <vill stick to the supposed line you gave me,” Hartly repeated that he did not give him any line. The line Smith was then erecting encroached about forty-five links on plaintiff’s ground. Witness then corroborated plaintiff’s evidence of the trespass of defendant’s cattle. James Gilbert, farm servant, said : I am in plaintiff’s employment, i have seen defendant’s cattle on plaintiff’s ground—south and west of Smith’s ground—on several occasions during the past year. The remainder of witness’s evidence was corroborative of that of last witness. David Young, settler, was examined, but his evidence was not important. This closed plaintiff s case. John Smith, defendant, said : 1 found a peg at the top, between sections 9 and 10, in the presence of plaintiff and Young, while Young was on the ground for the purpose of taking the contract from us. Plaintiff disputed the correctness of the line extending from this peg. This was about two years ago. Subsequent to this we had a conversation, and agreed, to put pp a fence on the old boundary. Afterward® be disputed this, and wanted me to adopt a new boundary. I told him that I only held the land by lease, and that I was bound to give the whole of it up at- the expiration of the lease as I received it. My son was present during this conversation.. It was for the fence between sections 9 and 10 I sued plaintiff, and obtained judgment While young was present, plaintiff asked me if I would pot acknowledge his land, but he did not describe any particular piece. W hen I came into possession of the upper part of section 2 there was n© fence between the parts. I had occassion then to call on plaintiff at his house, to have a boundary line stiuck and a fence put up ; this was in 180(3. Plaintiff agreed to come on to the ground on a certain day, and give Robertson and me the line.

[Left sitting.]