Feilding R.M. Court

Feilding Star, Volume X, Issue 131, 11 May 1889, Page 2

Feilding R.M. Court

Thobsday, Mat 9, 1889.

(Before Mr Brabant, 8.M.) Baker v. Phakazyn. Cross-examination of W. Baker by Mr Hanking continued: Did nothing to put out the fire because it was impossible, the wind was blowing so hard ; when he did make the attempt he had no one to assist him ; it was about a week after when he saw Mr Little; did not get menbecaute had not the money to do it, and he considered Mr Little should have put the fire out; the wind had been blowing on bio ,, land nearly the whole time of the fire ; (the position of Bartholomew's land was shown on the plan) ; that firm had fired bush a fortnight or three weeks before, but it was all out ; it had touched one corner of witness' section.; did not go over. Bartholomew's land to see if the fire was| all out ; Bartholomew's fire continued for a few days in different places in their bush, but not near witness* land ; it did not spread into his orchard, and join the fire from Pharazyn's; there was about a chain between them ; made tip the assessment of damage himself; Mr Sherwill had seen it; ten days after the fire told Little of the damage ; was not an expert in gardening, but knew what the value of the fru't trees was to him, and what it would cost to replace them ; the stab fence he had measured himself ; the grass* was destroyed in patches ; lie estimated his land; would -ditrry 4 ewes to- the acre, and he* got 8s off each one, so that made 32s per acre^ revenue ; new grass seed had already* cost him £10; the fire had made a fair burn of some of the. logs ; he reckoned this was a loss, as the big logs made shelter for his sheep*; it cost Ids on acre* to seed land ; had not spoken to Mr Bar' tholomew about the fixe he started because he had suffered no damage from it.. Re-examined by Mr Sandilandsr Mr Bartholomew's section was on the south, Pharazyn's on the west; did not go to se* Little when the fire was burning because he was afraid to leave home until the fire was thoroughly out ; in one case the fire travelled about 30 chains in three or fourhours when the wind was blowings hard; when Mr Little came to see what the fire had done Mr Little admitted damage, but said the claim was too much; Mr Little had no one on the spot looking after the fire ; it was possible to trace the course* of the fire from Pharazyn's to witness' house**; the rain put out the fire which was coming in from. Bartholomew's; 10s for 12s* per acre is a reasonable amount for seeding land; had since sold his lambs, and consequently had to keep less stock **; would not have more feed till the springs By the Bench ; His land carries 4 sheep to the acre, / \ . .. By Mr Hankins ; His sheep have the* run of a narrow strip of Bartholomew's: land.

John Phillips — who made an affirma* tion— deposed :- He was a farmer residing about 2$ miles from Baker's; knew the: locality well ; (pointed out sections connected with the case on plan) ; had been over Baker's property through it; thee smoke was blowing across the Kimboltorfc road in the direction of Baker's; had \ •. looked over the course of the fire whichhad crossed the road ; had no doubt the fire came from Pharazyn's; examined the* orchard which was clean burnt out; it had been a nice orchard for several-years ;. witness owns an orchard and deals ia fruit; his apple trees produced 15b each,, and gooseberries 3s each a year ; thought > the values Baker had put on hi* trees rediculously low; saw where the- grass had been burned; thought there wast^i* about 15 acres destroyed ; for sewing land! the cost of the seed and the sowing was about 20s an acre, but wholly- depended, on the kind of the seed put in (the labor would be about ss) witness' land carries: three sheep to the acre ; he made a profit of 23s per acre ; it is five or an months •-■- --before you can feed on newly sown, land, but it takes 3 years to make well grassed, land; there will be six months uarihg: which nothing, can be kept on. the land irt question. . ■•"-•"■ -3 ■.-&£■ 5 Cross-examined by Mr Hankxns r H^d- ; bren requested by Baker to- examine- thf^ damage done by the fire; saw Borrell's bush: on the opposite side of the road on jfire after Bartholomew's fire; had said the: seed might cost from 15s to 18s- aad'labor 2s. : Re-examined by Mr Hankins : -Some of the trees had been cattle brolien^but- : did not notice the trees had been barked . in every direction by hares but by sheep. By Mr Sandilands: This was after the: fire,, when the fences were down, Henry Burrell r deposed: He -was. * farmer reading on the Kimbolton ro4d ; had been there 10 years f (pointed out sections on plan. His • evidence was the same as that of the previous witnesses, asto the fire at Pharazyn's started by Lit&e,, who had given witness notice of the fact.) The fire had done -witness a certain amount of damage; (showed place on plan); wrote to Little and afterwards went over and Baw him ; he repaired the fence where it was burned; (described the; course of the fire); Baker had a good young orchard of shelter trees and fruit trees; after the fire it was ruined I the value of grass per acre for a year is dose: on 30s ; some farmers make more and some less ; seed alone costs 16s per acre, but that depends on what grasses- a man goes in for; Baker's land would carry 4 * sheep to the acre, but wont do that for & years ; the land wont carry stock again for 6 months, Crosß-examined r Was connected by marriage with Baker; the orchard was: looked after in the usual way ; the trees were well planted* fenced, and kept ingood condition as far as he- knew; couldn't swear the cattle had not eaten the trees.;, nor could he say what peach trees had : been cut down for the blight p saw the fire get into Bakers paddock ; did not go> on purpose to tell him ; told him about two days after; could not remember what Baker said on the occasion; saw the fire I in Bartholomew'&about three weeks before received no notice about it ; the fire had' gone out with the rain ; a fire might break out again after it had been appar- "''■ ently put oat by the rain, ' He-examined by Mr Sandilands : Th* ; • fire did not go to the end of the orchard near Bartholomew's ; there is grass growing there now ; the orchard was well kept ; had no doubt in his mind where the fire started. l ; ; By the Bench ; After the fire came on Baker's land it could have been put out,, but when the danger was apparent it was. too late ; the further it. ran the wider it spread out; it was a wire fence along Kimbolton road. George Watts, laborer,, deposed r He was working for Bartholomew on bis__ section on Kimbolton road ; Bartholomew burned in the first week in February ; it burned about a week ; Bartholomew's fire had been out a fortnight beiore Pharazyns started ; the wind was blowing ; right over Bartholomew's ; the fire went up the road into Burrell's, crossed into Baker's, and also into Bartholomew's. Mr Hankins here admitted the fixe did. come from Pharazyn's. H. L. SherwiU, deposed: He was a valuator and commission agemVf KaH valued trees and grass for Baker ; saw a fire had run through and damaged the - trees and fencing; estimated roughly 16V acres of grass had been destroyed ; the • - trees are all so damaged they can be of no future value. Cross-examined by Mr Hankins: "Went

through Baker's estimate after he had been through the orchard ; was an expert _. in, valuing fruit trees. Thomas Hall, ' gardener, deposed : He had gone to Baker'B and examined the orchard ; made a valuation of the trees destroyed (produced) — £M 8s 6d. This was the case for the plaintiff. For the defence, Mr Hankiris admitted that the fire had been started by his client, but he would endeavor to prove contributory negligence on the part of the plaintift; also that the fire of Bartholomew's joined the fire which came from Pharazyn' s. He called . E. Gr. Little, who deposed : He was manager for C. Pharazyn ; the fh*e was lit on February 16th ; sent notice to Burrell, Bartholomew, and Hitchman previously ; had men in a tent with ropes, ladders, buckets, axes, food for them, and everything necessary, on purpose to keep the fire from spreading; kept a dairy (produced} ; on Saturday, March 23rd, heard damage had been done ; this was the first he heard of the £73 damages ; knew the section (Mr Mountfort's plan of the locality produced) ; had seen the fire, on and off, on Bartholomew's land since February; went on 25th March to see Baker, and on the 28th got the demand ; went through Bartholomew's land and saw where the fire had been ; there were isolated spots everywhere; (described the shape of Baker's orchard and. condition of the fences) ; there was not a sixth of 15 acres of grass destroyed; estimated seed would cost 7s an acre and Is for sowing it; he considered the burn was a profit to Baker instead of a loss ; could rent better land than Baker's from 10s to 12s a year. The R.M. said the farmers in this district are like the doctors — they differ. Cross-examined by Mr Sandilands : The man who rents land at 10s or 12s of course makes a good profit off his stock ; traced the fire from Bartholomew's into Baker's in isolated patches. Re-examined by Mr Hankins : When lie saw the fire in Baker's he formed no opinion as to where it. came from. C. W. A. Mountfort, authorised surveyor, deposed : Made the plan produced at the request of Little; the fire passed over 32 acres, in which one-sixth of the grass had been destroyed; went up Bartholomew's boundary and found there had benn a heavy fire; (traced direction on the plan). By the Bench : Thought the fire in the orchard came from Bartholomew's ; there is a continuous trace of fire from Bartholomew's to the orchard, while there is no continuity from Pharazyn's fire ; there were more roots and stumps burned than grass. Messrs Strawbridge, Saxon, W. Baker, Millau, and Worsfold were called, but did not appear. After some delay Mr Strawbridge entered the Court, and was cautioned by the RiM. that he was liable to a heavy penalty for leaving the Court . premises. Strawbridge made an apology, which was accepted. He was then sworn and deposed : He was fencing on Pharazyn's land 30 chains from Baker s ; had Bai.tr wanted his assistance to put out the fire it was no trouble to get him ; last saw the fire on Bartholomew's at present date. Cross-examined : Saw the fire burning in Baker's ; the fire was was running ■everywhere ; traced the fire from Bartholomew's to the orchard. John Saxon deposed : He was a farmer residing in Feilding; had been a farmer for more than 20 years; was asked to •value the damage done to the grass ; 8 acres were destroyed ; • value of grass seed ~£4, loss of feed £2 Bs, total £6 8s ; a man -would get as much feed off graas 6 months after sowing as he would oft grass 3 Edwin Worsfold deposed : He was a gardener residing .in Feilding ; had been asked to assess the damage to Baker's ■orchard 1 } a fire passing through would destroy all the small trees, and damage the others for a year or two ; no one «ould say the trees were quite destroyed ■until the spring ; the orchard did not have ihe appearance of being well kept ; the trees were : neglected, full of blight, and liad made no growth since they were planted. This was the case for the defence. Mr Hankins then addressed the Court. He admitted the fire crossed the road and •damaged the paddock, but he would not admit damage to the orchard. He contended Baker was the author of his own ■wrong, because he stood by and allowed the damage to be done without making an ■effort to prevent it. Mr Hankins quoted Addison on Torts in support of bis view of the case. He further quoted two oases from the New Zealand Law Reports, vol. "V., page 347 — Docherty v. Smith — a judgment by Judge Richmond. The other •case was in vol. VI., page 690. Mr Sandilands reviewed the evidence. He contended there was no contributory action, as his client was not in any way responsible for lighting the fire. He was willing His Worship should view the scene of the fire if his time would allow. His Worship said he would have no •objection to viewing the land, but as he was not an -expert bis opinion might not he worth much, . The counsel having agreed this was not necessary, His Worship said he would give judgment at the next Palmerston Court. The Court then adjourned.