TIRAU RABBIT CASE.

Putaruru Press, Volume VI, Issue 250, 16 August 1928, Page 5

TIRAU RABBIT CASE.

RESERVED JUDGMENT. Given to Defendants. Reserved judgment in the case Bailey v. Bottomley and Smith, all of whom are farmers at Tirau, has been issued by Mr. S. L. Paterson, S.M., in which he finds for defendants in both cases. The case was one in which R. H. Bailey (Hewitt and Reid) sought to compel Thomas Bottomley and C. T. B. Smith (Hampson and Bell), two neighbours, to convert their boundary fences into rabbit proof fences. Smith was also required to repair the existing fence. In his judgment Mr. Paterson commented that the Amending Act (Fencing Act), 1922, altered the common law rights and liabilities of adjoining occupiers and made the liability dependent upon the condition of the rabbit pest in the district and the possibility of the land occupied by the person giving the notice becoming infested with rabbits from the adjoining land, so that a person may now be called upon to pay a large sum of money towards something from which he will receive no benefit whatever. No doubt the legislature had good grounds for such an alteration and there are no doubt cases where the imposition of such a liability would be justified, but the enactment makes such an inroad into the common law rights of the subject in this respect that it should be applied with great caution. I In view of this Mr. Paterson lays down the following principles:— (1) The. condition of the rabbit pest in the district is such that it constitutes a serious menace to the farming community, having regard to the farming operations carried out in the district.

(2) That the condition of the pest is such that it cannot be efficiently controlled by other appropriate methods, e.g., poisoning or trapping. (3) The possibility of the land of the person giving the notice being infested with rabbits is so substantial as to amount to probability. (4) The menace to that person’s land should be from the land of the receiver of the notice. I think that the use of the words “ the adjoining land ” having regard to the general scheme of the whole enactment, means the land occupied by the receiver of the notice.

Applying these principles to the case the Magistrate stated that he relied largely on the evidence of Mr. Morris, stock inspector, which tended to show that the pest could be controlled and that there was no menace to plaintiff’s property from defendants’, whose farms had been in the hands of speculators. The Magistrate therefore found that the condition of the rabbit pest in the district and the possibility of infection did not warrant the defendants’ being required to contribute half the cost of the convesion of the fences.

After careful consideration of paragraph (b) the Magistrate held it only applied where no sufficient non-rabbit-proof fence existed, and one was erected pursuant to the notice under the Act. The summons against Bottomle; was therefore dismissed with £3 3s solititor’s fees and disbursements and witness’ expenses. In the case of Smith, the cost of repairing the existing fence was set at £3l 19s, to be borne by both parties in equal shares, the work to be completed within three months. Smith was allowed £1 11s 6d solicitor’s fee, together with disbursements and witness’ expenses (other than his own) as he had succeeded on the main count.