SUPREME COURT.

New Zealand Times, Volume XXXI, Issue 4824, 7 September 1876, Page 2

SUPREME COURT.

(Before His Honor the Chief Justice.) The following judgments have been delivered by the Court : HOLDER V. WHITE. In this case the defendant obtained a rule to eater a nonsuit in accordance with leave reserved, or for a new trial on thß ground that the verdict was against the weight of evidence. The action was for trespass to land, but with a further claim for trespass to certain fencing erected on the land. Several pleas had been placed on the record, but all were withdrawn except the plea of general denial. The facts proved at the trial were that the place where the alleged trespass was committed was land being, or been, the site of a track leading from a public road, and along which the defendant had for several years used as a way to his farm, and which the plaintiff also used as a way to land occupied by her. It was proved that the defendant kad on several occasions repaired and formed portions of this way, and had constructed a culvert or culverts thereon. It wa» also proved that the plaintiff occupied land on both aides of the track.

Attempts were made at the trial to prove that th« land so used as a way formed part of the plaintiff's farm. These attempts failed The plaintiff was not possessed with legal proof of her title, and the whole question was one of possession. About three weeks before the rirst trespass the defendant had used the way as usual. He had done no act evidencing an intention to abandon such use of it. The plaintiff at about that period fenced the boundary of her land along the road from which the track led, and continued that fence across the track so as to include the track within other fences of hers. The defendant on the occasion of the first trespass was using the track as usual, and found the fence obstructing the way, and in removing some part of it to some extent damaged it. There was no evidence that the defendant was aware of the erection of this fence until the occasion when he removed it for the purpose of passing through the way to the public road. Th« plaintiff was aware that the defendant removed the fence, and she re-erected it, and shortly after the defendant again removed it. At the trial the defendant called no evidence; the plaintiff proved no title to the land other than as before stated. The defendant contended that the plaintiff had not proved exclusive possession; ■■ and ouyht therefore to be nonsuited; the plaintiff contended that the defence that the defendant at the time of the trespass was also in occupation as well as the plaintiff could not be raised under the plea of general denial, and also contended that the evidence pioved an exclusive possession at the time of the trespass. The case was tried before me, and I directed the jury that it was necessary for the plaintiff to establish a possession exclusive of the defendant, but that there was some evidence of exclusive possession. The jury found for the plaintiff, with damages, five pounds. At the argument of this rule Mr. Travers, for tho defendant, made a somewhat different contention to that made at the trial, and based his argument on the authority of the case of Brown v. Dawson, 12 Ad. and E. 624. That case seems to decide that the possession gained by an act of trespass is not such possession as that which must be proved to maintain trespass as against the person with reference to whom such possession has been so obtained, and the case also decides that that defence may be raised under an issue denyiug that the plaiatiff was possessed at the time of the trespass.

The case of Blades v. Higgs, 11, House of Lords cases, 621, seems to be a recognition, with regard to chattels, of the same principle. - And it seems to me that the true interpretation of rule 80 recognises th» same principle. That rule provides that in an action of this kind, when the plaintiff alleges a lawful possession by himself, this shall mean not only that th« plaintiff had actual possession at the time of the trespass, but also that such possession was lawful in its commencement; by this I think is meant lawful as against the defendant. By this rule, therefore, the plaintiff is, if lawful possession is denied, put upon proof that his possessien had as against the defendant a lawful commencement. Applying the rule to the present case, it was, I think, necessary for the plaintiff to prove that his exclusive possession was not gained by an act of trespass as against the defendant, and that if it appeared that his exclusive possession was so gained he should have been nonsuited. It appears that there was no evidence of any exclusive possession as against the defendant, except such as was gained by the erection of the fence, and consequently that the plaintiff should as to the trespass to the land have been nonsuited. But I think that the delaration is an action for tresspass to chattels the property of the plaintiff. The claim is not not, 1 think, an aggravation of the trespass to the land, but is ft substantive cause ot action. See Curlewis v. Laurie, 12, Q. 8., 640. The defendant should, had he wished, have pleaded a plea, of justification. In fact, he had done so, but withdrew it. As tne fence was undoubtedly the property of the plaintiff, and as the defendant has not justified the trespass to the fence, the jury should have been directed to find for the plaintiff as to the damage to to the fence.

This being the case, I think there must, unless the parties agree otherwise, as is to be hoped, be a new trial, each party to pay his own costs of this application and of trie former trial. SUTTON V. HOERA AND ANOTHER. In this case 1 think that. tho plaintiff is entitled to retain the verdict in his favor, and to have the usual judgment for possession of the whole of the land claimed.

It was contended by the defendants that as others were as much in possession of the land as themselves, and their names were not inserted in the writ, therefore there could be no judgment in favor of the plaintiff for possession; and it was urged that the issue that the land wis in occupation of the defendants against the will of the plaintiff, &c., should have been found for the defendants, inasmuch as others were in occupation as well as defendants, and that the issue meant sole possession. It seems to me that though the plaintiff ought to have addressed the writ to the other persons in possession, yet that such omission cannot at this stag* avail the defendant. The rules of Court contemplate the case of persons being in possession, and yet not be named in tha writ; for though the plaintiff is required to address the writ by name to all those in possession, yet, if ha does not, any omitted may obtain leave to appear and defend. As was pointed out by Mr. Allau, if the proceedings became of no effect by the omission of the names of all those in possession, the party in possession in Thompson v. Slade, 25 L.J., Eich. p. 308, would not have sought to set aside the service and proceedings, but would have remained quiescent. I think that if the other parties in possession were to apply to the Court, and show that these proceedings were collusive between the plaintiff and defendant, or that they had not been cognisant of them, they might even after judgment and issue of execution apply to bo admitted to defend. It is, however, not necessary to decide that in - this case : It is sufficient to decide that the defendants could not object in thi* case even if they were not aware that others were in possession; but being aware of it all through, they certainly cannot now object. The costs of this rule to be costs in the cause.