An Important Case

Feilding Star, Volume XI, Issue 12, 13 July 1889, Page 2

An Important Case

». i The following is the judgment given by the Resident Magistrate, last Court day : — H. S. White v. Margaret Johnston. — Claim, damages <£10. The plaintiff and defendants are occupants of adjoining lands at Halcombe. The claim was for trespass on plaintiffs land by defendant's pigs and the consumption and destruction by them of certain, rhubarb roots, carrots, cabbages and { apples. There is also a claim for personal trespass by the. defendant. The defence i was that the sth section of the Impounding Act takes away the plaintiffs common law right of action for trespass, and that because the land trespassed on was not enclosed by a sufficient fence the plaintiff can only recover the trespass rates as provided for in section 14, and the Ist schedule of the Impounding Act, citing the case of Olsen v. Bailey (N.Z.L.R. 6 713), a case heard and determined by the Chief Justice at Gisborne in September, 1888. It appears from the evidence that the feace between the parties was erected jointly by Mrs Johnston, the defendant, and a former owner or occupier of the plaintiff's land. There was no evidence that these persons mutually agreed that it should be a sufficient fence or that the plaintiff and defendant have done so. It was argued that their agreement might be j implied from their using the fence, but on consideration I do not think that this contention can. be sustained. The fence, it appeared, is what is known as a stab fence, and would be a sufficient fence as is described as No. 2 in schedule A to the Fencing Act, if the stabs or uprights, had been only four inches apart, but according to the evidence they were much farther apart, one witness saying six inches and another witness that some of them were as much as a foot apart, and that pigs could get 'through. In Olsen v. Bailey it was held that damages cannot be recovered for trespass by cattle on land not enclosed by a " a sufficient fence," even though the fence had become insufficient through the action of the defendant's cattle, and following that case I decide that as the fence is not a sufficient one damages, other than the trespass rates allowed by section 14 of the Impounding Act, in respect to pigs cannot be recovered. These amounts to the sum of ten shillings — as paid into court — it being clear from the plaintiff's notices to the defendant (produced), that on the occasion of the second trepass there were only three pigs. As to the personal trespass the defendant — I think —only-: trespassed to recover her pigs, and the fence being an insufficient one she had a right to do so (Addison on Torts, 4th edition, p 266). I therefore giye judgment for the plaintiff for the amount paid into Court and no more..