SUPREME COURT.

Hokitika Guardian, 27 June 1925, Page 1

SUPREME COURT.

■ Q < FRIDAY, TUNE 2Gth. (Before his Honour Mr Justice Alpers.) JOHNSTON v. FITZSIMMONS. Tn this ease Thomas Johnstone sued Lillian 0. Fitzsimmons, in connection with the lease of the Westland Opera House for cancellation of the leases, legal expenses iu connection with lease, value of plant lost £l5O and general damages £250; in the alternative £IOOO. Defendant counterclaimed for £lls.

Mr Park with Mr Murdoch appeared for plaintiff and Mr Hannan, with Mr McCarthy for defendant. Ur Hannan led evidence for tbe defence as follows:

Lillian Fitzsimmons deposed she was the owner of tbe Opera House property. She ran pictures there for about a month after Mr McLean left. When McLean was there she worked the engine and saw things were ready. Out £5 a week from him. Remembered Johnstone coming to her in July last in connection with leasing the theatre. Came down from Greymouth with him and showed him through tlie theatre. A low days later again discussed the question of sale. First offered it at £2OOO and later at £ 1000. The theatre had been empty for 12 to 18 months. Ihe bungalow next door was let at the time of the deal at 10s weekly. Agreed to the lease for live years as drawn up. She had not offered to take over the cottage and section for £7OO. Johnstone never complained to witness ol having made a had bargain, or ol her (having made any misrepresentation. The writ was issued just after witness had sent her demand for rent to him. One ‘da,v Johnstone came to her and asked her to write a letter stating wlmt she thought were the takings of McLean, so that he could send it to his people. Elm did so and then he asked her to write another and hack date it to August. She did do. She asked him why bo wanted it. back-dated, and lie said it would look so much better for his people. She wrote three in one day at her house, 01l pith. November. The letter was not written on Ist. August. To Mr Murdoch- -Cannot remember if she wrote any letter to Johnstone in August 1921. She was quite prepared to say she wrote a deliberate lie twice and then copied u. ai the request of Johnstone, when she wrote the letters and back-dated them. She wrote of what she know or thought she knew when McLean had the theatre. She really believed McLean's takings were £.‘i() to £-10. She wrote Hie third letter at the same time. If there were discrepancies it was because she could not have referred to the other letters. Witness was examined at length as to her takings when she ran pictures and had no answer as to ligures read out by counsel. She made application to the Borough Council for permission to erect a verandah at the request of Johnstone. To His Honour -She entered into a plot with Johnstone to deceive his people. This was the case for the dclonce. UTS HONOUR'S FINDING.

His Honour stated before bearing counsel lie would give his finding on fact. He regretted that an otherwise apparently respectable woman should go into the witness box, and tell a story of such a nature as she had. He did not believe one single word of ii. Johnstone bad given bis evidence clearly and freely. He had acted very foolishly in expending such a large sum. He bad unfortunately been led into it by having a faith in human nature, which was not warranted. The extraordinary statement put forward by .Mrs Fitzsimmons he could not accept ill any form, lie therefore found that misrepresentation had been clearly established, and that the plaintiff bail been led into Itis present position lc fraud. DECISION RESERVED.

Messrs Miinii.au and Murdoch addressed llio Court nl some length. 11 is Honor in reserving Ids decision slated that llio case was a peculiar one. He wanted to do justice to the plaintiff to the greatest extent he could, consistent with justice to the defendant. The circumstances were novel. He did did not see id present that revision of the lease could he made, hut lie wished to give the plaint iff every possible relief. With a view to these cireuinst.anoes he would suggest to counsel that they confer with a view to . a

mutual agreement to allow a revision of the lease, and then he could assess the damages to he allowed. He would ask counsel to confer as soon as possible and lie would deter consideration till then.

APPEAL AD.IOFKXFO. The appeal case Joseph Radoinski (appellant) v. William .bdm IJaseler (respondent) was called. Mi; Murdoch for appellant, and Mr Pilkinglon lor respondent. Mr Murdoch stated it had been mutually agreed on to have this case adjourned to the next sitting. His Honour agreed and the Court ordered it to lie adjourned accordingly. F. XKWMAX v. 1). P. STt'ALI AND OTHERS. Fred Xewman v. Kanieri-Tlokitika Sawmill Coy. Ltd. a claim for tJ-’A damages and an injunction m connection with the removal of trees and entering on plaintiff’s land at Lan-

ier!. Mr .Tovce. with Mr Sellers. for plaintiff; -Mr Pnrk. with Mr Murdoch for defendants. Air Joyce stated plaintiff resided at Kanieri on a section of about an acre. Defendant erected a tram line on the road way. ’1 hen an erosion of the liver took place and cut

into the tramline. On 27th. March defendant’s men started to put in stone to stop the erosion. In spito of protests by Newman, his fence was taken down and ten trees were cut down. After this the tramway line was slewed along for a considerable distance on to Newman’s property. The Court adjourned at 4.5 p.m. to enable a visit of inspection to lie made of the site, and resumed at 5 p.m. Henry S. Nightingale, deposed lie was a surveyor residing at Greymouth. He had made a survey of Section 1825 and 1826 and vicinity. Plan produced. The sleepers encroach on the sections up to three feet in places. £2O would renew the fence and restore the laud to its original position. To Mr Murdoch—-The area of two sections is 3 roods 32 perches. '1 he section on which no house is built is 2 roods 10 porches. The. exact area of the. encroachment is 1.7 per. Not prepared to say if the old I cnee was on the section or roadway. One way to stop erosion is the putting in ol heavy stones.

Frederick Newman deposed he resided near Kanicri. There was an erosion on the river bank. He sent notice and Robinson of Kanieri Electric Ltd came up. David Stuart also came along and after discussion said lie would have to put tbe tram back, and witness said no not an inch. Stuart on the Friday. Saturday and Sunday, had a gang of men carting stones with the loco. Stuart said lie was going to put the line over and said witness could take action. On the Sunday, two of the workmen were taking down the fence on the eastern end. He warned them against wrongly interfering with his property. Saw Stuart, who said he had the authority of the County Council. Witness referred to the operations at length leading up to the chopping down ot the trees along the line. Later saw the County Chairman and Clerk on the ground. The former stated he had given authority. Witness told Wells he was a tl d traitor. Later saw J. C. Maefarlane who defined the boundary line, which was where the tramline was lying. Then sent the demand to move tramline but. no reply was received. On Dili April received a letter from the County Council in regard to taking a portion of the section. Told Stuart he was going to remove the line and took one rail out on the Saturday. On the Monday the rail was put hack and the line was put back two foot on to its present position. A lew days alter received reply (handed in) from Park and Murdoch. Ton trees were destroyed, moslly red fir. Since the trees were cut down could feel the effect of the wind. He. could not estimate the damage. It would cost £2') to replace the damage to the land. There was also general damages claimed. To Mr .Murdoch—Eight years ago the bank of the river was a good half chain away. On March 26th a sudden erosion took place. The erosion was caused by the action of the river and the Iramline combined. One ol the trees was top(>ed with his consent by the nower company, lie admitted

Stuart and his men did their best to stop furlher erosion. lie hail paid I'7o for the sections and house, 8 years ago and had done considerable improvement s. The Court adjourned at 6.15 till 7.39 p.m. EVENING SITTING. His Honor resumed His seat ai. i .20 p.m. Florence Newman deposed she was the wife of plaintiff. Saw D. Stuart and her husband. Heard her husband say the trees were not to bo cut down. Stuart said he would do it and push bis line over and Unit Newman could take action. Heard her husband the next day warn two workmen not to interfere with Ids property. Corroborated husband's evidence in regard to interview with County Chairman and in regard to the rail being lilted and replaced. There was some vibration from the passing of the engine ’Hie house was much colder now the trees had been cut down and it was now exposed to the winds

Robert Morris deposed he was a miner. lie knew Xowinau’s place and the trees that were there. Tie saw them planted about forty years ago. The trees were very valuable as shelter. Heard Xewman warn the men not to cut tin l trees down. John Xohle Robinson deposed lie was an electrical engineer. On 2f!th March he went to near Xewinans to see to the safety of the line of electric poles. Heard Xewman say Stuart’s trucks were causing the damage. Stuart denied it. The two men were excited. Had noticed two cracks near the tramline during the last day or two.

To Mr .Murdoch- -Shifted one pole the first time IT to 20 feet. Shifted the post again, because the river was making a sudden erosion. The protective works saved the situation for the time being. This was the ease for the plaintiff. Mr .Murdoch led evidence for the defence as follows: — Harold Watkinson deposed he was

an engineer of the Public W orks Department and resided at Greymouth. Visited the erosion near Kanieri on March 30th. Found the Hokitika river had cut in and was threatening the tramway road near Newman’s property. The cause of the erosion was the bed of the Hokitika river had lilted with shingle and in consequence the centre of the river was higher than the sides ami when a flood came down the river changed its course to this side. The bank at that spot was formed solely of river silt and the current ate into that causing the damage. Westland County Council applied to the Minister for a grant and witness reported in favour. In his opinion if no protection works had been undertaken the river would have eroded the whole of the road at that point and also have taken part of Newman’s property. The land there slopes away at this point. llis estimate ol the work was it would cost £236,. provided Stuart and Chapman c-arted tlu; material free, lie approved of the manner the work had been done. 'I he railway line materially assisted with the work. To .Mr .Joyce—The protective works were protecting the river banks now. There may he a, certain subsidence yet at this locality, lie did not think the passing of loco and trucks would have any effect in causing erosion. It may have a slight effect. To Mr Murdoch—The stone put in by Stuart considerably saved the posi-

To his Honor—The protective work could have been carried out without interfering witli the trees. David Stuart deposed his firm was the owner of the tramway at Kanieri. When the erosion took place, got a lug lot of men on the Saturday to cart and dump stones. As the work proceeded it was necessary to keep shifting tramline for .safety. Altogether the first day put in about 150 tons. Before the day was over the river had come in six feet. Further work on Sunday when about 100 tons were put in. Also had to shift the line over to make it safer. Continued on Monday. Found had to carry the lino over further to keep it safe. Found Newman’s fence at the east end, four feet outside his boundary. Spent over £6O on the first three days and used the light locomotive because it was not safe to take the heavy one. He was of opinion the loco did not do any damage. When the erosion started the bank was 30 to 10 feet from the line. Tf the protective work had not been done the trees at Newmans would have gone down the river in a very few hours. Saw Newman but could not reason with him. Admit he went on to Newman’s property hut it was urgently necessary to do so.

To Mr Joyce—There was only a fresh not a flood when the erosion took place. The Chairman of the County Council gave directions to take action to keep traffic open on the road, the loco was 23 tons on an 18ft base. William Milliter, County Overseer, deposed about 20 years ago there had been an erosion there before. It bad been protetced. but the whole of the protection had become detective. Ibis was the cause of the' present erosion which was 6 to 8 feet' in one place one diiv. If there had been scrub put in before the stone ii would have been more effective. In a majority of eases (he putting of stone in causes -com. The work carried out will block further erosion. The work saved the tram hut he would not say it would save the freehold. To Mr Joyce. The erosion was in i rollL i;-i Nen lean. ho! was norktng down stream. Was sure the engine was not causing a subsidence. It would have cost about £IOO more but for the assistance of the loco and men. He considered Ytuarl did the best lie could under the circumstances.

David .John Hutchison deposed lie wns an employee ol Stuart and C hapnian at Kanieri. 11 s. at the washout on the Saturday. The position was dangerous. The nearest point was about lour feet irom the rail. The work done saved the road line. If the trees had not hcon cut dtrwn it would not have been possible to have brought the trucks of stone. This was the case for the deiencc. Neither counsel addressed the Court. TIIM JITTHIMKXT. His Honor in giving judgment said tlie facts were not seriously in dispute. There was some exaggeration on both sides. MV Alillnor was very fair and he was perpared to accept his evidence. The plaint ill also was voir good ami was very pronounced on the invasion of his rights. His Honour continued that he was ol opinion the “woodman might have spared that tree.’’. The plaintiil' set out to obtain an injunction hut a freeholder cannot obtain an injunction against nature, hut he should not have his rights invaded by another, lie was quite rigid in his contention that the rights of property should ho preserved from invasion.' There had been ail invasion of rights. Stuart had done his best hut he had not considered the full rights of the freeholder. He had cut (loan the trees and told Newman to take action. That was a very high handed thing on his part, lie was not going to grant an injunction. That would he of no use, as the County Council had power and would probably proceed under the Public Works Act to take the portion of the land affected so that the injunction would have no value. Tie would therefore give damages in lieu of an injunction. It was not a case for damages for a contumacious trespass. Stuart had been frankly afraid of further damage accruing, but lie felt that there was no necessity for the trees to have been cut down. TTc would give judgment for the plaintiil for £OS and costs and disbursements according to scale to be settled by the Registrar, with second counsel’s foe of Cl 4s allowed.

This concluded the business of the session and the Court rose at 0.30 p.m.