SUPREME COURT.

Globe, Volume IV, Issue 418, 14 October 1875, Page 3

SUPREME COURT.

SITTINGS AT NISI PRIG*.

Wednesday, October 13. | Before his Honor Mr Justice Johnston and a Special Jury.] The civil sittings of the Supreme Court was opened yesterday at 11 a.m. FAY V BURNS. This was an action brought by the plaintiff to recover £3OO damages from the defendant for trespass alleged to have been committed by him upon the property of the plaintiff. Mr George Harper appeared for the plaintiff. Mr Joynt for the defendant. The following gentlemen were sworn as the special jury, viz, Messrs J. Marshraan [foreman), H. Hawkins, W. Blake, E. A. Hargreaves, P. Cunningham, C. M. Wakefield, J. Colborne-Veel, F. C. Tipping, D. O’Callaghan, P, B. Boulton, C. Newton, and W. Buss.

The following were the issues submitted to the jury:— 1. Did the defendant on or about the twenty-third day of April, 1875, and on divers other days and times between that day and the commencement of this action break and enter a certain close of the plaintiff, then being in the lawful possession of the plaintiff as in the declaration described ? 2. Did the defendant, on the days and times aforesaid, break down, prostrate, and totally destroy a great part of the fences of the plaintiff, and belonging to the said land, and deprive the plaintiff of the use and enjoyment of the same 1 3. Did the defendant, on the days and times aforesaid, dig holes and ditches in the said land and remove earth, stones, and gravel therefrom, and cause to be erected and made and placed upon the said laud a fence without the leave of the plaintiff, and thereby and therewith encumber the said laud, and obstruct, hinder, and prevent the plaintiff from having the use, benefit, and enjoyment thereof in so large and ample a manner, as he might and otherwise would have done.

4. Was the close of land in the declaration set out the property of the plaintiff as in the declaration alleged ? 5. To what damages (if any) is the plaintiff entitled ?

Mr George Harper opened the plaintiff’s case, and called evidence to supportjt. The plaintiff deposed to being the owner of the section desciibed, and produced Crown grant dated January, 18(37. The defendant’s section joined on to that of the plaintiff. The boundary fence was erected by both parties contributing a share to the work. On the date mentioned in the declaration the defendant came on to the plaintiff's laud and proceeded to demolish the old fence and erect a new one, taking in the land which was claimed by the plaintiff, and for which the action was brought.

In support of the declaration, Mr Harper called the plaintiff and Mr Pavitt, surveyor, the latter giving evidence that the encroachment on the plaintiff’s laud by the new fence, beyond the boundary laid down on the surveyor’s map was two roods one perch. In any case, the fence erected by the defendant was on the land of the plaintiff. Mr H. B. Huddleston gave evidence corroborative of Mr Pavitt’s as to the survey made of plaintiff’s and defendant’s sections.

J. B. Stansell produced the application book of the Waste Lands Board, containing the application of the defendant to purchase 18a 8r cf land in the Ellesmere district. The plot was afterwards found to contain 20 acres, and was paid for as such. William Fabling gave evidence as to the value of laud in the Ellesmere district, and also as to the quantity of land included between the new and old fences between the land of the plaintiff and defendant. E. S. Leversedge, of the Waste Lands department, deposed as to the position of the sections of the plaintiff and defendant on the chief surveyor’s map. This closed the plaintiff’s case. Mr Joynt called the following evidence for the defendant.

Robert Preston Bain, a surveyor, who gave evidence as to the survey made by him of the sections of land, and that he found that plaintiff had twenty-six links more than his quantity, and that the defendant had six perches into plaintiff’s land, assuming the new fence to be the line.

His Honor said that he thought it would be far better if an arrangement could be come to between the parties. It was impossible to apply principles of law to this matter, as there was no certain idea as to how it would all come out. From the evidence of even the witnesses for the defence, Mr Harper was, he thought, entitled to a verdict, though the pecuniary value would be but small. Therefore it would be as well to come to some arrangement on the point. The learned counsel on both sides having conferred announced their willingness to allow the matter to go to the jury without further remark.

After considerable argument, the Council not being able to come to an agreement, it was ultimately agreed to allow the case to proceed. Mr Joynt then called Mr W. J. Cuthbert to give evidence as to a survey in November last, but the witness did not appear, Counsel not addressing the jury, His Honor summed up, expressing his regret that a case of this character should have come into Court. He considered that the plaintiff was entitled to a verdict at the hands of the jury for the amount of damage proved, as there was no doubt that a trespass had been committed. The action arose out of what would, he believed, be a fruitful cause of litigation throughout the colony—viz, the inaccuracies known to exist in the surveys of the colony. The jury then retired, and after a short absence returned a verdict for the plaintiff — Damages £25. Mr Harper applied for his Honor’s certificate that the case was a proper one to be tried by special jury. His Honor granted the application. The Court then adjourned until 11 a.m. this day.