MAGISTRATES' COURT.

Nelson Evening Mail, Volume XV, Issue 219, 15 September 1880, Page 2

MAGISTRATES' C OURT.

[Before H. ; E. Curtis, S.; Kingdon, , arid P. ; Donald, Esqs., J. J.P.I ' . ' ; Thomas Halstead Harleywas, charged within the space, of six months last past (to. wit) on or about the IQbh day of SepteaJUer,

1880, at the City of Nelaon, in the Colony of New Zealand, he did unlawfully and maliciously throw down a certain fence on or near the southern approach to Collingwood-street Bridge, within the said city, contrary to the form of the statute in such caße made and provided, and that James Keen Little, of the said city, was then and there present unlawfully and maliciously aiding and abetting the said Thomas Halstead Harley to do and commit the said offence. The following plea was put in by Mr Harley :_« i plead not guilty to unlawfully and maliciously throwing down the fence mentioned in the information, but I say that at the time and place mentioned in the information I removed a fence which was an obstruction illegally erected in the public highway, which I claim to have had a right to remove, and I object to the jurisdiction of the Court to try such a case." Mr Little filed the same plea as to unlawfully and maliciously aiding and abetting. Mr Fell, in openiug the case for the prosecution, said that a bridge over the Maitai in Colliugwood-street was in a very decayed sbite, and after getting reports from Messrs Lightfoot and Scott Bhowing its unsafe condition, the Counci'j as guardians of the public safety, resolved to close it. Mr Harley was a member of the Cotiucil at the time the resolution was 1 paSsed, and s«S was Mr Little, who was also a member of the Committee upon whose recommendation the barriers were erected; Both thetefore had helped to place the obstructions there, and had respected the authority of the Council in the matter ever since. A few days ago, however, there was an election of Councillors, and Mr Harley was returned at the head of the poll, and next day, elated by his victory, he and Mr Little, after careering round the town in nu excited state, arrived at the bridge, where Mr Uarley borrowed an axe and proceeded to demolish the barriers at one end. Mr Little then drove over, and Mr Harley knocked down the obstruction at the opposite end. The Municipal Corporations Act provided for such cases, as by it the Council were authorised to erect barriers for the public safety. Mr Pitt: I deny that the Corporation had the right to erect the fence, and it is for Mr Fell to show that they had. Mr Fells My friend may raise any number of objections, but it is only fair that I should have the right to reply to them later on. Mr Pitt: The objection is ,ralsed now, and it is for Mr Fell to show at dnce that the Corporation has the right. Mr Fell : The Act gives sufficient authority for the erection of such a fence while a street or bridge is under repair. It; may be argued that no repairs were going on, but the structure was shown to be dangerous, and the Council were deliberating how to repair it. Suppose that the Council were advised that a bridge was unsafe and they were not prepared to set to work at once to repair it, were they to allow it to remain open until someone had broken his neck ? But he would take higher grounds.^ If they had not erected barriers and an accident had happened they would clearly have been liable for any injuries sustained, and he would boldly say that no case could be found that would show that, where a public body would be liable for not doing a certain thing, they had no right to do that thing. If they had no right to erect the barriers the Bench could find then they were a nuisance and that; they w.ere removed by Mr Harley as such. But the fact was that it was nothing of the kind. It was nothing but a piece of bravado on the part of Mr Harley who then had the impudence to come there and assert that he had been removing a public nuisance, whereas it was but part and parcel of his triumphal procession round the town with his friend Mr Little. He would call the following evidence. H V. Gully : I am the Town Clerk, and produce the minute book. On the 25th March, 1880, it was resolved that all traffic for foot passengers be stopped across Collingwood bridge. Mr Harley was at that time a member of the Council. He never protested against the resolution in a formal way. Mr Little was also a member of the Council. Shortly before that, a Committee, consisting of the Mayor, Crs Crewdson, Cross, Little, and Trask, visited the bridge, and reported it unsafe, and that the public should be warned to that effect. The matter has been before the Council at various times ever "since. Shortly after March a poll was taken for a loan for re-building the , bridge, but it was not carried. Since then, another resolution in favor of a loan was agreed to by the Council. Cross-examined by Mr Pitt : No poll has been taken since. The fence was erected about March, the time when the ratepayers refused the loan. No steps have since been taken to repair it. I believe Mr Harley has disputed the right of the Council to close the bridge. His land abuts on the bridge ■on both sides. The resolution which the ' Council passed had reference to heavy traffic. In January, notices were posted warning the public that the bridge was unsafe, but the Council were advised that that was not suffi cient, and consequently they stopped it. Mr Harley has objected in Council to the bridge being stopped. I don't know whether he contended that it was not unsafe. W. Lightfoot: I am City Surveyor, I examined the bridge in January without instructions from the Council and found it very : much decayed. I recommended that repairs should be made or a new bridge erected as I considered it unsafe. I erected the barriers in March by, order of the Council. I frequently saw the bridge between January ;and March. I went with the Committee and; we founi it very much decayed. I examined it again in May, with Mr Scott, when I saw no reason for altering my previous report on its condition. I considered it unsafe for heavy traffic such as carts with gravel. , Cross-examined : My instructions were conveyed to me by the Town Clerk. I think the obstructions were put up after the resolution of the, Council. Cr Everett was the first to tell me to put them up. I was in the Council acting as Town Clerk when the resolution was passed. Mr Everett asked me if I had put the obstructions as resolved by the Council on the previous night. I am clear I had instructions to put up the barriers. I suppose the Committee are engineers. They tested the bridge by sending a loaded cart over it. They saw that the bridge rocked. It has rocked for ten years under a load. Every wooden bridge will. I suppose the Committee are men of common sense and can see whether a structure is decayed. The bridge was repaired some eighteen months before the Committee reported by Mr Gilbertson. Some £25 were spent upon it. Substantial repairs might have been effected but they would have cost from £1000 to £1500. : Re-examined : The condition of the bridge is such that anyone can see that it is unsafe. •; By the Bench: At the time the Committee visited the bridge it was plainly unsafe for heavy traffic. Light vehicles might cross it for Borne time. John Scott: I examined the bridge in May and found it thoroughly rotten, and only safe for passenger traffic For other traffic I consider it dangerous. Otto Walker : Last Friday evening I saw Messrs Harley and Little in a trap on the town side of the bridge. Harley went to a house close by and got an axe, and knocked the rail off the barrier ; then he went across the bridge. Little drove the trap across. . Cross-examined : There were two in the trap, which was standing by the bridge. I saw no one else with them. I know Mr Arthur Harley. I did not notice him there. James Parker: On Friday afternoon I saw Mr Harley near the bridge. He got out of his trap and went somewhere, and came back with an axe and knocked the rail off, and then walked on and knocked the other off. There was somebody in the trap and he drove it over. I could not say who it was. John Jacobsen : On Friday evening I saw Mr Harley walk across the bridge with an axe and knock the barrier down on the north end. A trap was there with some one in it. : Israel Johns : On Friday afternoon I saw Messrs Harley aud Little. driving in a pony, chaise. They called out that the Collingwood bridge was open for public traffic, 'i. | Cross-examined : I am a member of the Council. - 1 do not recollect hearing Mr Harley protest against closing the bridge. He has always been anxious to get a bridge there. ' Mr Lightfoot . (recalled by Mr Pitt):- Mr Guy was present when Mr Scott and I examined the, bridge*. R . Mr Scott is not an engineer; but U |ust ink fitlto'exairone awdofon

bridge of that kind as the most emiftf l^ engineer. This dosed the case for the prosecution. Mr Pitt submitted that there was no case against Mr Little, with regard to whom no evidence had been given, As far as Mr Harley was concerned, he thought that 'the case must be dismissed, on the ground, first, that he had a perfect right to remove the barrier; and secondly, that that court had no jurisdiction. Mr Harley's act had not been one of mere bravado as had been alleged; but it was one of many protests that he had raised against the authority of the Council to bar the bridge. It must be shown to the satisfaction of the Bench that the bridge was undergoing repairs, for it was only while a road or bridge was I ing repaired that the Council had a right to erect an obstruction, and if such repairs were not going on, then (the obstruction became a nuisance which any one had a right to remove, and it was only in the exercise of that right, which waa shared by the wholejjof the public, that Mr Harley had taken down the fences. It was idle to say that repairs were in contemplation, as under such a plea a highway might be closed for ever. If the Corporation were afraid of accidents happening on the bridge it was their duty to remove it, but they had no power to obstruct it. The Council were no more than ordinary individuals except Jn ao far aa authority was granted them by the Act under which they eXiStedf They were bound to act strictly within their statutory powers, and no power to close a bridge was given to them by the Municipal Corporations Act, except during such time as it might be under repair. The fact of Mr Harley being a Counaillor had nothing whatever to do with the matter, and it was no worse for a Councillor to remove a nuisance than for any one else to do the same. Then as to the jurisdiction of the Court. Immediately the question of the right of the defendant to do the thing with which he was charged was raised, the jurisdiction of the Bench ceased, as where there was even the color of a title, no matter how weak the claim might be, ifc became a matter for the Supreme Court to deal with. He would also urge that there was no satisfactory evidence of the unsafety of the bridge, as competent engineers had not been called. Mr Eell said that he could not for one moment suppose that Mr Pitt really imagined that the theory of title upon which he had dwelt for so long had anything to do with the matter. Where the question of bona fide title td land was raised that Court certainly had not jurisdiction, but that wfls not the case here. The Corporation did not question the right of people to cross the bridge but what they said was this, We are not going to allow you to cross that bridge and break your leg and then come upon us for damages. The Chairman : The question of jurisdiction does not weigh with us at all. Mr Fell then proceeded to argue that while preliminary steps were being taken for the repairs of the old bridge or the erection of a new one the Council had a perfect right to erect the barriers, and he felt sure that had a waggon of Mr Harley's come to grief owing to their neglecting to take such precautions, he would have been the first to Bue for damages. After consulting together, the Chairman said that the Banch decided that they had jurisdiction, and they were unanimous in the opinion that this was a serious case, for it was a reckless thing to do to endanger the public safety. The offence appeared to them to be more serious on account of the defendants being members of the Council, and they should therefore inflict the highest penalty the law allowed, namely, £5 each and costs £4 17s. : Mr Pitt: Will the Bench fix the securities in case of an appeal? The Chairman: We shall not allow an appeal. I never have refused one before, but this appears to be a case for such refusal. , Mr Pitt: I find I have to make written application, and I shall do so, asking that a case may be drawn up and placed t in the Supreme Court. Child v. Edwards. Claim for £10 15s 6d for work done. A cheque had been received for £5 15s 6s and the balance of £5 was sued for, £2 9a being paid into Court- before the hearing. Judgment for defendant with costs £1 11s. Mr Percy Adams appeared for the defendant.