MAGISTRATE’S COURT

Hokitika Guardian, 30 March 1928, Page 4

MAGISTRATE’S COURT

THURSDAY, MARCH 23th

(Before W, Meldrum, Esq., S.M.;

A DEFENDED CAST

August and Esther Dalkie (Mr Park) v. Lawrence D. Kelly (Mr Joyce), a claim tor £lO5, being £75 for 92 trees cut, damages to fences £5, and general damages £25. August Dalkie gave evidence that he held 250 acres of land at Chesterfield. It was all fenced. Knew defendant, Kelly, who was a hiishman. Some time ago Kelly applied for the timber on witness’s land and this way refused. At his request, witness gave Kelly permission (.o put a tram through witness own laud to get to his own section. Witness agreed that Kelly should cut the timber in the line of tile tram. This was done and amount agreed upon was paid. Some time after Kelly started to cut silver pine on witness hind and witness’s wife stopped him. •outer he heard that Kelly was again cutting timber oil witness’s land. ’Witness went with Finch and saw at the end of a branch tram that 50 or 30 trees bad been cut and there was a pile of poles. Next day found that Kelly was .sniggiiig poles through witness’s property. Asked Kelly what lie was doing there. Kelly said lie was going to have the poles and witness told him to leave them. Kelly admitted that the wife of witness had stopped him and that he had also got witness’s note 10 stop him. Witness wanted the bush for shelter and Kelly admitted that his brother had cut it down at his (Kelly’s, instructions. Witness valued toe trees at £1 per stick, lie was also claiming £25 general damages lor trespass. Had never given Kelly any permission to go on his land alter settling for the tram line. Kelly admitted that he had been stopped by witness before.

'lo .>t]• Joyce—His hut was burnt in July, 1923. On the first agreement a price-list was fixed for what timber was cut, 3s per pole. Kelly was stopped two years ago. and also his wife stopped him about July, 1923. Witness also stopped him later. He counted 95 slumps in the hush. The fencing had been repaired.

To Mr I’ark-—'Witness told Kelly not to go into the maiden hush, but while he was away Kelly had gone in and taken the whole lot.

Esther Dalkie, deposed she was the wife of August Dalkie. and one of the tenants in common. She knew Kelly. After Kelly had been refused permission to cut the timber Kelly was given permission to put in u tram to his own property, only allowing him to cur what was in the line of flu* tram. Later Kelly was cutting timber and | witness stopped him. Their home was , burnt down'in July 1923 and they bad since lived at Camerons, bill they j always intended to build again. The i silver nine hush was wanted lor shelter and was worth a great deal to them. No permission had been since given to Kelly to cut further limber. To Mr Joyce—She sent Kelly a note over 18 months ago not to cut any more timber. The receipt handed in was dated July, 1927, but that was for timber cut previously. George Finch gave evidence that ho know well the ground .>‘ l Dalkie's at Awatuna. lie visited tin ground recently with Dalkie and saw ! poles all over the place anti a branch I tramway that had since boon removed. There were over 50 poles in the hush that had been just cut. On the ’luesday the poles had been slugged out to the end of the branch tram. Counted 10 poles there and there were others elsewhere. Counted 95 stumps of trees ami had not been till over the hush where it had bee-, cut lately. Salt Kell'-' when Dalit:'.- war there. Dallti asked Kelly whafc he was doing ant Kelly said be was taking a few poles. Dalkie said, Did I not stop you? and Kelly said he had. Dalkie claimed tie poles and told Kelly to leave them in the hush, and Kelly said he would tab them out. Witness valued the trees 1 ' at 25s each. The shelter is now gone, it lieing all open. David C. Finch gave evidence that he knew where Kelly had been work ing lately. Dalkie had an exceptionally good silver pine hush, hut if was not a large amount. Valued .that hush

at £1 per stick. A. Dalkie recalled stated the shelter and house site were about 1•5 chains

away. This was the case for the plaintiffs

The defendant, Lawrence Kelly, stated he was a hushman at Awatuna. He entered into an agreement with Mr and Mrs Dalkie for taking out silver pine poles and sleepers. There was no specified place to take thorn from. Put in a tramway and paid for what was taken. In 1926 took out some more and paid for them. Early in 1927 .Mrs Dalkie told him not to cut any more’ lor a while, as she was offering the area for sale. After three months as he heard nothing he started to cut again. On a recent Sunday Dalkie came along and asked him how many poles he had taken out and he told liini 40, and that lie had some more to come out. Dalkie said not to take them out as they were his, but witness said they were lus own (Kelly’s) and lie was going to take them out. He took out the balance of 87 next day. Tie was paying Dalkie three times the amount of the government royalty.

To Air Park—Dalkie gave witness the title to cut anywhere he liked on their place. He had cut 100 sticks off in the last three years. Tie had cut some in February. Mrs Dalkie only asked him to stop as she had a buyer coming to look at the land and he might want the silver pine himself. His agreement was to put the fence in order if he had to cut it at any time. To Air Joyce—He was never told tr stop cutting till 11th March. Dalkie always trusted witness to count the poles cut. There was only 82 owing which would lie paid for ns they were passed.

.John Kelly deposed he was a brother of defendant and cut the poles in qnes tinn. 82 lining taken out. He worked for his brother.

| This was the case for defendant. His Worship in giving judgment stated the action was laid for trespass and wrongful conversion of timber. 1' was undisputed an arrangement had been made whereby defendant was entitled to cut poles, ete. on plaintiffs land. Tlio agreement was not fully reduced to writing. The action was laid on trespass but defendant had an actual right to cut. Plaintiffs say defendant was told to stop, hut defendant stated this was only for a while in view of a prospective buyer and this was a reasonable view to take, especially as it was proved conclusively by a receipt of 21st July, 1027. signed by Dalkie for £7 os for royalties up to that date. He considered the rigid bail not been cancelled in January and February and therefore there was no wrongful trespass. 'There was a claim for general damages, which plaintiff ’>pd no right to claim.’ All thattplaintiff bad a right to was a fair royal tvand this had been agreed on of 3s pe l pole.- Plaintiff stated, he bad alwav taken defendant’s word of the amount of timber ent and he/had stated tlier werei'fej poles unpaid for. Judcmen would Fe given for £l2 6s. As tlr. plniiitijif had- failed to.prove.the greater portion of his clhiiii no costs would be allowed.