TREE CUTTING

Southland Times, Issue 18823, 17 May 1920, Page 6

TREE CUTTING

AN INTERESTING JUDGMENT,

MISCHIEF CHARGE FAILS,

On Saturday morning, Mr G. Cruickshank, S.M., delivered reserved judgment in the case in which Hayward Patterson and B. Hughes were charged with that between March 17 and 22 they did wilfully damage three pine trecs growing in a right-of-way adjoining the rear of the dwelling house of C. J. Broderick, Kelvin road. Mr Broderick was the informant. The judgment was ns follows; This is an information charging the accused with a breach of the mischief sections of the Crimes Act by cutting down a tree. The evidence shows that a right-of-way runs from Dee stree to Kelvin road, the property of Mrs Guthrie fronts the right-of-way on the south side and the property of Mr Broderick, the informant, front-, the right-of-way on the north side. Guthrie and Broderick have equal interest in the right-of-way. The right-of-way was granted in 1882, at which lime it was lined on both sides by a double row of trees. Since then the eastern end of the right-of-way nas become a thicket at the back of BrodericK'-: bouse and is fenced across’yit the Kelvin road end. This clump of trees o.n the right-of-way are an advantage to Broderick in that they give him necesnry shelter against the couth-west-erly wind, while they shut off the northern ;;un from Guthrie. The defendants, who are casual bushmen were employed by Guthrie for a fixed sum to fell these trees and to cut them into firewood. They started work one morning, the cutting attracting the attention of Broderick who instantly came to them and warned them under pains and penalties against continuing cutting. The defendants told Broderick to see their employer. The defendants stopped cutting then, but later at 5.30 p.m. they cut the tree in question which grew close to Broderick’s fence and it fell across the fence into Brodericks'? back yarl. “As a result this information was laid by Broderick under Section 339 of the Crimes Act, which makes it a crime to damage a tree growing on any land adjoining a dwelling house. ‘The defence was raised that the?" trees were not adjoining Broderick’s house, but in my opinion this cannot avail the accuse,!. I agree with accused’s counsel that adjoining means within the curtilage of the house, but the trees here were on a piece of land appurtenant to Broderick’s land, in faor half belonged to Broderick’s land, so were within the dominion of Broderick. I think the trees adjoined the house. The further defence was raised that the accused acted with legal justification and with colour of right. This point was strenuously fought out and ably argued. I do not see how the accused who were casual workmen engaged through the secretary of the Sawmillers’ Union can bo more culpable than their employer. If their employer employed them to do a criminal act, they would be equally guilty with him, possibly less, but not more so. Mr Macalister, counsel for the prosecution, urges that these men are guilty even if Guthrie is not, because these men were warned by Broderick. I do not see that the warning makes any difference in a case like this. It may aggravate the gravity of the offence if the accused have committed one, but the warning alone cannot here turn their act into a crime. The accused might quite reasonably here think that their employer knew what he was doing and was justified in ordering them to cut down the trees. They followed a reasonable course by referring Broderick to their employer. If they had been ordered to cut down the trees on Broderick’s aide of the fence the cutting would appear wrongful at once, but hero the men were cutting on Guthrie's side of the fence. I think the men had a reasonable bona fide belief that Guthrie had the right to cut the trees. The amount of legal authority emoted to me show? that the question whether Guhrie can or cannot cut these trees is a civil matter to be decided by the Supreme Court. If Guthrie is in the wrong he must pay damages to Broderick. Guthrie may have a good defence in a civil action, it is not for me to say, but his claim to cut the trees takes away from his act its criminal character. ‘‘Both Guthrie and Broderick have similar interest in these trees. If any one wishes to cut down the trees and the other objects the remedy is a civil action for damages and an injunction. Cases were quoted showing that the owner of the dominant tenement could clear the right-of-way of any obstructions. He could enter the right-of-way and abate the nuisance. If in abating the nuisance ho trespassed on the rights of the other dominant owner he was civilly liable for trespass, but he would not be indicted for mischief. If Guthrie had been the defendant before the Court now, the case would have, had to be dismissed because he acted with colour of right if not with legal justification. Guthrie’s workmen are entitled to use the same defence. I think they acted under colour of right and the information u dismissed.” Mr W. Macalister and Mr Hall appeared for the informant and Mr Stout and Mr Haggitt for the defendant.