Resident Magistrate's Court.

Marlborough Express, Volume III, Issue 109, 28 March 1868, Page 6

Resident Magistrate's Court.

BLENHEIM— Monday, March 23, 1868. [Before S. L. Muller, Esq., R.M.] SAMUEL ROBINSON AND THOMAS RENWICK V. : MAJOR N. G. MORSE. Mr. Moffitt appeared for plaintiffs, and Mr. Conolly for defendants. Mr. Moffitt said plaintiffs occupied Birch Hill Run, and defendant at the time was the owner of Wantwood Station. The Wye stream was insufficient for a boundary, and the plaintiffs in 1865 gave notice to the occupiers of the adjoining land that they intended erecting a fence on their land, according to the Fencing Act, 1863. The 9th clause provided that the owner of the adjoining land would be liable to pay interest upon half the value of such fence, and upon repairs at 1 5 per cent, per annum. The plaintiffs erected a fence that cost £2OO 2s. 4d. of wire, according to the 4th schedule of the Act. They gave no notice to defendant, but he held there was no necessity to give it. Mr. Conolly did not care disputing the matter of notice.

Mr. Moffitt said the question was —, "Whether the defendant was responsible for" half the amount of interest upon the cost of the fence. A similar case was heard in the Court before, and it was decided that there was liability. Another question was —Whether the defendant received any beneficial use, and that was a material point in the case. Under the provisions of the Act, it was immaterial whether the fence was completely erected and continued the whole boundary, so long as there was some benefit derived from the fence. By the plaintiffs putting the fence on their own land, they became entitled to interest. If they had put it on the proper boundary, it would have heen washed away, and of no benefit to either. He was liable either as owner or occupier. Samuel Robinson, sworn, said I reside a partner in the firm of Robinson and Renwick, owners of Birch Hill Run. The river Wye is one of the boundaries of the run—believe Birch Hill and Wantwood. The river is not sufficient for a boundary between the two runs. In the year 1865 we erected a feh.ee on our own land between the two runs. The’ Wairau river is a boundary on the north. The fence commences as near as practicable to the river so as not to be washed away. The fence proceeds in a southerly direction till it meets the southern boundary fence. The fence then runs parallel to the Wye, and as near as possible to it on the eastern boundary. It has several times been washed away and for that reason it had been erected on their own land. I once spoke to defendants upon erecting a fence, and I afterwards gave notice to the then occupiers of the land. That is a copy of it. I don’t know, whether the effect of that notice was conveyed to the defendant. I received in reply to the letter that they were agreeable to the proposition of the plaintiffs, and would give notice to defendant. That is the only fence between the two runs. It is a seven wire fence. It cost £2OO. On the Ist October, 1866, the tenants (Tuckey and Blundell) left the run. The defendant then occupied the run himself till last November. I consider the fence was of benefit to the defendant.

By Mr. Conolly: I’ve some slight recollection Dr. Renwick had a conversation with Mr. Morse about the fence, prior to its erection. The end of the fence is certainly not 10 chains from the Wairau river in the ordinary state of the river. As the river changes it might be that from the water, at other times only one chain. The fence follows the windings of the Wye, in some parts within a chain’s distance; in others, several chains from the original bed. There may be 15 or 20 acres of my land between the fence and the Wye. The length of the fence in dispute is two miles. The fence ends at the point of the Wye. We keep a shepherd between the end of tbjw fence and the Wairau river, to prevent the sheep straying from the one run to the [ other.

By Mr. Moffitt: It would be useless to carry that fence further than at present with any safety. I did speak to Mr. Morse one time about erecting a fence, partly on his side and partly on ours in a straight line, but he did not appear agreeable to it. This concluded the case for the plaintiffs*

Mr. Conolly submitted there was no case. This was a claim for £l6 5 s. interest on half the cost of a fence. There was no Act under which the plaintiff could claim such a sum. The 9th section of the Act quoted stated that the sum should be paid yearly. That would have made it £ls due on the Ist October, 1867 ; nothing more could be ■ due till Ist October, 1868, therefore the mouth’s interest was out of the question. The Act provides that it should be quarter the interest on the value. There had been

no evidence as to the value. We have just got the cost of the fence three years ago. There is no evidence as to the present value. I hold that the amount cannot be recovered, nor can they claim costs. If ray friend had asked the present value of the fence, it would have been different; but he has not done so, nor has he asked to amend the summons. I consider plaintiff should be nonsuited.

It was here argued whether the fence, by leaving the boundary in parts for a considerable distance, could be considered a boundary fence, and whether the defendant would not have been , a trespasser if he attempted to repair it at those parts, in accordance with provisions of the Act. Mr. Conolly continued : I will call Major Morse, who will prove agreeing with Dr. Renwick that this fence should be erected, but to run from the hills to the Wairau river, crossing and re-crossing the river Wye in a straight line, giving and taking on either side. A similar agreement appears to have been made with Messrs. Tuckey and Blundell. The plaintiffs had not carried out their agreement.

Major Morse deposed; I ceased being owner of the Want wood Run on the SffltlL. September, 1867.. I had seen Dr. Renwick before*this fence was erected. I agreed to a boundary fence across the flat between the two runs, from the foot of the hills to the Wairau in a straight line, giving and taking. I agreed to this on certain conditions. I left the carrying out of the arrangement, to be seen to by my tenants at the time. I never saw the fence till the other day. It is of no use to Wantwood. The end of the fence is a considerable distance from the grazing bank. I saw grass between the fence and river, but I was not close to it, and cannot say the exact distance from the river.

James Mackay, sworn, said, I was manager of the Wantwood run. I resided upon it part of the time after Messrs. Tucker and Blundell left, and had the care of it all thWtime'. 1 know the fence. The end of it is 8 or 10 chains from the river Wairau, but I have never measured it. The fence terminates on a flat. Then below this is a small flat with a shepherd’s cottage on it. Between the present termination and the lower bank 1£ chains of fence might have been put up above all floods. The terraces are grass, and the shepherd’s hut is not liable to floods. There is again another small terrace to the bed of the river. I do not consider the fence of the slightest use to Wantwood Run. It is not completed to the river nor to a bluff. The shepherd does keep the sheep from mixing when there, but if taken away to muster, or during a moonlight night, the sheep wonld cross the boundary. Birch Hill cattle and horses were in the custom of pasturing on the 20 acres referred to, or on the Wantwood run, and may be there now. I have spoken often to the manager of Birch Hill, and shown him a notice that all strange cattle and horses were to be removed from Wantwood, but no notice was taken of it. They walk through the Wye, but at the upper end they are worse for the fence is not completed to the rock at the foot of the hills, leaving a space open of half-a-mile. I never looked on it as a boundary fence. The fence is merely the boundary of two paddocks, belonging to Messrs. Robinson and Renwick. The Bench: The Act appeared to contemplate a perfect fence. This fence was not circulable to the adjoining land. It was open at both ends, and cattle and horses did pass the ends. Sheep might pass at one end whilst the shepherd was at the other. Judgment for defendant, £3 15s. costs. R. AND ,W. PARKER V. GEORGE SADD. This was a claim for upwards of £2O, upon a balance of account. Defendant objected, there being no bill of items attached to summons. Plaintiff nonsuited, and the defendant allowed Bs. costs. R. AND W. PARKER V. FREDK. JEFFRIES. Judgment confessed to £1 13s. 9d. E. AND W. PARKER V. COR. MURPHY. This was a claim for £4 14s. 10d., balance of account. Defendant knew nothing about it. They had never settled accounts. It might be right or wrong. He objected to it, because he had not had particulars afforded. Plaintiff nonsuited, £1 4s. costs. JAMES GORRIE V JOSEPH DEMPSEY. Judgment for plaintiff for £27 2s. 7d., and £2 12s. 6d. costs. THOS. WARD V. FREDK. WALLEN. This was a claim for £4, value of ten loads of firewood. Judgment for defendant. R. AND W. PARKER V. OTTO HASE. Judgment for plaintiff for £2 19s. 3d., and 18s. costs. TUESDAY, MARCH 24xh, 1868. GEORGE CARTER V. JAMES LYONS. Judgment for plaintiff for £4 12s. Bd., and 9s. costs. PHILLIP LAWRENCE V. GEORGE COWARD. Judgment for plaintiff for £8 10s. 6£d., and 14s. costs.