The Kiritehere Road Cases.

Kawhia Settler and Raglan Advertiser, Volume IV, Issue 388, 20 November 1908, Page 2

The Kiritehere Road Cases.

CHARGER AGAINST THOM AND KERR DISMISSED.

At the Hamilton Court on Monday Ml E. 0. Catieu 8.M., gave judgment in the above cases, heard at the last sitting of tbe Kawhia Court, as follows

The three informations 'involve the same set of facte, aud were by consent heard together, The informants are adjoining land owners, through whose land a track leads. The informants in reaching their boundary fence fenced across this track and so dosed it. Tbe defendant Thom cut the fence iu order to get through and an information is laid against him under the Indictable Offences Summary Jurisdiction Act for mischief. The defendant Kerr, after Thorn had reopened the track by cat'ing tbe fence, drove a team of working bullocks along the track through tbe lands of the informants without giving them any notice of bis intention to do so, and each informant has laid an infor mation under the Stock Act for crossing land in their occupation without first giving due notice of bis intention to do so. The actual point in dispute is whether this track is a public road, and admitted to be so by the defend ants who committed tbe acts complained of in what they secured to be their rights. Looking at the matter generally, it would seem that, whatever liability may attach to defendants { on account of their acts, they could j hardly be considered to have brought themselves witbin the bounds of the criminal law. The informations against Kerr are laid under a aec'.ion of the Stock Act which states that any person crossing land with a flock of sheep or mob of cattle or horses is required ro give notice to the occupiers of the land. Admittedly the track in ( qne3tion is, where it goes through their lands, in the occupation of tbe informants ; but it is also clear from the case that the informant’s real com plaint is not that Kerr did not give them notice; but that he used the track at ail. In any event, I do not think that Kerr’s act comes within the terms of the section. Kerr took a team of seven working bullocks, with bells attached, along the track through the lands of tbe informants. It is very doubtful whether, looking at the object of tbe section, such a team would come under the meaning of tbe words “ drove of cattle ” as used in the section. Evan if it did, tbe section expressly limits liability to persons offending against the provisions of the section without reasonable excuse, and the evidence, in my opinion, shows that Kerr had reasonable excuse. There is a similar limiting proviso in i the section defining mischief in the Indictable Offences Summary Jurisdiction Act, under which the information against Thom is laid. Nothing is deemed to be an offence under that part of the Act unless it is done without legal justification in excuse, aud without colour of right. Thom was using tbe track and found his way blocked by the fence erected by informant*?. Tbe informants had put sliprails at a point two or three chains away and made a track leading from them ; but Thom bad bad experience of this bit of track and considered it dangerous. In order to get along tbe usual track, therefore, he, as he though- be bad a right to do, cut the fence. The Court was engaged all day bearing evidence on tbe point whether tbe public bad the right to the unimpeded use of that track. Thom committed the act complained of in the exercise of what be considered his rights. It can hardly be contended, therefore, that Thom's act was without colour of right. I was asked by informants in case my decision did not involve a finding on the point whether that track is a public road, to give au indication of my opinion, I would have great hesitation in this case in doing that if I had been requested to do so by all parties, and the request came only from one side. The evidence showed that tbe track had been used by the Maoris for a very long period ; that it had been used for the carrying of mails prior to tha war, and that it had been used by the European settlers for driving stock for many years. It was farther shown that the way was very much needed. The land through which the track passes became the propsrty of tbe Crown, and tbe Crown gave the informants titles to the land now held by them under the Land Transfer Act, without making any reservation with respect to this track. It was admitted that the lands in question are not in a county, so that section 245 of tbe Counties Act, 1886, does not apply to have the effect of keeping this track open. It whs also admitted that use during the time the lands were held by the Crown would not be evidence of dedioat-im, but the evidence did hot show when the Crown acquired the 1 mds. It scenic to me that the ciae is one which should come before a court which has jurisdiction to settle all the m itters iu dispute between the parties. The informations will be dismissed with costs to defendants.