THE LAW OF TRESPASS.

Southland Times, Issue 1297, 23 August 1870, Page 3

THE LAW OF TRESPASS.

(to thb editor of thb tikes.) Sic, — I believe that the law of trespass is very little understood by the community of Southland, and as the annexed extract which I have made from an Otago paper lays it down very clearly, you will, in my opinion, confer a benefit on the settlers generally if you will publish, it. — I am, &c, K. An important -decision with regard to the law relating to trespass on unfenced land, was given in the Resident Magistrate's* Court on the Bth inst., by Mr Fulton, 8.M., in the case of Bathi gate v. Asher and Simpson. The plaintiff, Mr Bathgate, stated that he had , brought the action with great reluctance, i and solely for the purpose of having the ) law on this point laid down clearly. He • was the owner of about 100 acres of land F situated between the Town Belt and r Mornington, and after going to endless trouble and expense in the matter, he had

I been^ compelled to allow the land tc remain unfenced, aa the fences wen - broken down as soon as they were pui c up. The defendants among others were ), in the habit of depasturing sheep on this r land notwithstanding that he had giver 1 them warning todesist Jjpp«rt[osig so. — tuu law va Lue-lubject was remarkably s clear. In Addison on Torts, p. 22, it was 3 laid down that every entry on land in the 3 occupation of another is a trespass, and , damages can be recovered unless x justification can be shown, and even if the land be unfenced, the law surrounds l it with an imaginary enclosure, to pass i which is to break and enter in the close. , The mere act of breaking through this f imaginary fence constitutes a cause of ■ action, even although no actual damage be done. Mr Bathgate remarked that there seemed to be a public fallacy i ! existing, that if a piece of land were unfenced, any one could go and take possession. If the land be unfenced. no doubt the owner could not obtain redress by impounding, but it wag quite competent for him to bring an action for trespass. In Addison on Torts, p. 102, it was expressly laid down to be the duty of the owner of animals to look after them, -protect the crops against the animals. This was the common law of both England and Scotland. Every man was bound to take care that his beasts did not trespass on the land of his neighbors, either by having them watched, or by erecting a fence ; and if he erected a fence the law presumed that he did so for his own benefit. If a man trespassed on the land of another he was liable to an action, even although he had done no particular injury. He had no right to be on the land, and if he persisted in crossing it, after being warned against doing so, damages might be recovered. It was laid down that it waa unnecessary even for the owner to prove damages ; the law gave him compensation for the wrong-doing alone. He maintained that he was not by the law of New Zealand bound to fence, except at the request of the adjoining occupier. The defendants were not adjoining occupiers, a public road intervening between their property and his own, and their sheep had to cross this road in order to reach this pasture. The Court would no doubt see its way to affirm the principle that it was the duty of the owner of the cattle to look after them, and not of the owner of crops to protect his crops against the cattle, aa had been decided in the Resident Magistrate's Courts of Tokomairiro and Cromwell. Evidence regarding the damage having been adduced, Mr Catomore, for the defendants, asked for a nonsuit, on the ground that where a person has property adjoining the high road, and that property is unfenced, he has no Bction against any person trespassing for damage that may be done. Further evidence having been led, on behalf of there was no doubt that a trespass had been committed, and that the defendants, and not their servants, were the proper persons to sue. He presumed the action had been brought merely for the purpose of establishing the plaintiff's right, and nominal damages would therefore suffice. Judgment for plaintiff for 20s, with costs.