The Lyttelton Times. November 8, 1851.

Lyttelton Times, Volume I, Issue 44, 8 November 1851, Page 5

The Lyttelton Times.

November 8, 1851.

We reported in our paper of the 25th ult., a rather important case, which was tried in the Resident Magistrate's Court on the 20th ult. Mr. Darapier is in the occupation of 250 acres of pasturage, held under the terms of purchase from the Canterbury Association, and lying to the west of the town of Lyttelton. Mr. Kaye landed some sheep and cattle in the neighbourhood of Lyttelton, and drove them upon Mr. Dampier's pasturage. After they had been two days upon the land, Mr. Dampier gave notice to the person in charge of the stock, that they were trespassing upon his pasturage, and that a charge would be made. The stock were left for two days more in the same place, before they were removed. Mr. Dampier then summoned Mr. Kaye before the Resident Magistrate's Court for the amount of damage done by the trespass. Mr. Kay pleaded that he had made no contract to pay for the pasturage, and that under the Ordinances of New Zealand, no damages could be claimed, the land not being fenced. Mr. Dampier urged his claim under the common law of England. The Court ruled that a trespass had been committed through inadvertence, and inflicted a nominal fine ; but that foi'nhe two days which had occurred subsequent to the

notice having been given, the plaintiff was clearly entitled to compensation, at the usual rate charged by the plaintiff and others in the neighbourhood.

The question thus early brought to an issue in our settlement, is a very important one, and the decision of the Magistrates will probably widely affect the interests of stockholders. On the whole it is favourable to those interests. It asserts that the pasturage rights acquired by law from the Association, (and of course those from the Government also,) are by law protected. When a man hires pasturage and pays for it, the thing which he has hired and paid for, is the growing crop of natural grass, that crop becomes his property. If any other man applies it to his use, by feeding his stock upon it, he clearly commits a trespass upon his neighbour's property, who therefore has a legal claim for compensation. In extensive stockfeeding countries, however, a rigid adherence to this principle would be neither practicable nor just. It is absolutely necessary to remove stock from one part of the country to another, and where there are no roads, the open country is a highway for all. Were it not so, all traffic in stock would be impossible. In Australia, therefore, it has been the ordinary custom to drive sheep and cattle across occupied runs, and of course to permit them to feed by the way. We apprehend the decision of the Magistrates will in no respect interfere with so obviously necessary an interpretation of the law : but it asserts that if a man, under the pretence of removing stock from one place to another, shall allow it to feed upon his neighbour's pasturage for a longer time than is fairly required for the performance of the journey, his neighbour may claim compensation for the grass consumed.

Now in this light, the decision of the Resident Magistrate, is a great boon to the stockholder, because it protects his property of pasturage. We have, nevertheless, heard it said, that stockholders dread the result of this decision. They fear, lest when they have taken runs upon the terms at present in force in the Canterbury block, some purchaser of land from the Association, exercising his right under the terms of purchase of selecting pasturage with preemptive right in the proportion of five acres to every acre of freehold, may make such selection in the middle or immediate neighbourhood of one of their runs, and may claim compensation, should the stock on the run accidentally trespass upon it. We think, however, that this alarm is wholly without cause. It is extremely unlikely that the pasturages with pre-emptive right will ever be selected so as to annoy the squatters. The pre-emptive-right-pasturages are too valuable to be thrown away; they will be invariably taken up either in the neighbourhood of a town, or in the neighbourhood of a man's freehold farm, or by the squatter himself, who will purchase them for the purpose of making his home station. If such patches of pasturage be occupied, the occupant though holding but 250 acres, will enjoy the same protection as his neighbour who occupies 20,000 acres. If they be unoccupied, it is absurd to suppose that a patch of say 250 acres, would be watched for the pur-, pose of catching trespassers and raising a

claim for compensation. Such a dog-in-the manger-speculation would not pay; there is, therefore, we think not the slightest cause for any uneasiness on this point. As to the expense of feeding stock upon first landing on the pasturage taken up in the neighbourhood of Lyttelton, throwing any obstacle in the way of the importation of stock, it is absurd to talk of an expense of three or four pounds, affecting the success of a venture to the amount of as many thousands.