TREE FELLING CASE

Southland Times, Issue 18847, 12 June 1920, Page 10

TREE FELLING CASE

AN INTERESTING JUDGMENT. His Honour Mr Justice Sim has forwarded his reserved Judgment in the tree felling case. Thomas McKeilar and others (Mr W. Macaii.-ter and Mr Hall > v. William Guthrie and another (Mr Haggitt and Mr Stout), which came on tor hearing at the recent Invercargill sitting of the Supreme Court. This was a claim fur an injunction to re--train the defendants from cutting trees in a right-of-way between Kelvin and North roads, being part of section 29, block 1, and for ).‘2o() damages' for trees already cut. There was also a counter-claim for an injunction refusing permission to allow the trees in ijuestion to remain. Judgment was as follows: "The plaint ills T. G. McKcllht and C. C). McKeilar are the registered proprietors of an e.-tate in fee simple in a strip of land in the township of Wellesley in the Borough of Invercargill. This piece of land is 1300 links long and TO links wide, and extends from the North road to Kelvin road, which are noth public streets. It is held subject to rights of way in favour of the owners of several adjacent parcels of land. One of these parcels of land is owned by the plaintiff Mrodriek. Another parrel is owned by the defendant, Mrs Guthrie, and was conveyed to illiam Paisley, her predecessor in title, in March, ISS2, The following is the description of the right-of-way contained in the deed of conveyance: “Together with a free and uninterrupted right-of-way or passage for all purposes wharsover for the said William Paisley his heirs and assigns and all otheis having business with him or them m through and over all that parcel of land secondly described in the said schedule hereto. . ." Mrs Guthrie’s land abuts

ou Kelvin road, and she has two gates opening on to t-hat road. one being for foot passengers and the other for carriages. There is a pathway leading from the North road to Mr- (iuthrie's property. On the north side of this pathway there is a double row of pine trees, and on the south side a single row of them. On the south side this row does not extend beyond the point where the pathway enters Mrs Guthrie's property, and beyond that point, ou the north side, there is n single row of trees. There are two gates op. (lie Nor lit road, one for foot passengers and the oilier for carriage traflis. At the Kelvin road end there is a corrugated iron fence right across the way without any gate or other opening, and behind I ids there is n row of macrocarpa trees, which have been kept, trimmed. The eastern end of the way between Mrs Guthrie's property and Mr Brodrick's property appears to have been treated exactly as if it were part of Mrs Guthrie's property. It is not separated from her property by any fence, although the rest of thie way is fenced off from the adjacent properties, and she has planted ornamental trees on it, and has a summer house on it. There is no pathway of any kind through this part, of the way, which U really like a small forest, and it is obvious that none of the persons who have a right-of-way over it have attempted, in recent, years at anyrate, to use the way for the purpose of getting to Kelvin road. In the month of March last, the defendant, W. E. Guthrie, acting as agent, for his mother, Mrs Guthrie, let a contract for cutting down a number of the trees growing on the way oppu.-ite Mrs Guthries house. The contractors commenced their work, and feihd about seven of the piue trees and ringed some others. Mrs Brodriek protested against this interference with the trees, bur the defendants claimed the right in fail them, and threatened to fell other irt es on the way. The plaintiffs thereupon brought the present action to recover damages, and to obtain an Injunction restraining the defendants from further interfering with the trees.

"The defendants seek to justify their inicrfer"nee with the trees on two grounds. They say, in the first place, that, the treef were an obstruction of the way, and amounted to a nuisanoe, which Mrs Guthrie was justified in abating. Any wrongful in ieiierenre with a right-of-way constitutes

i’. nn;-aoua’. but it is not every - obstruction of the way which amount,- to an unlawful intertoreuee. There must, be a substantial interference with the easement, and before the grantee can complain of an obstruction u mu;; - le- clear lira the obstruction is operating to the injury of the grantee. The question than to be determined is whether or not the defendants have proved any such interference with the way. "In the aa.-e even of a public highway Ih” -ml of which is vested in a private i w.a r. ihi' right of the public is to pass and repa.-- along it and such private owner may maintain an action for trespass against ■my ir.ember of th- public who uses the hlghwe.v m siv other than the ordinary and reasonable way iu which a high way is used. In the case of a private way the use is -till more re.-.-trieted. being limited to purposes connected with the dominant tenement. Thus a private right-of-way into one clo-c cannot be used with the real intention of pe---mg thence into another adtaei nl close, in re-r.'Tf of which the way wa- not, ,grant Nov. the only purpose for whe-li Mr- Guthrie could ever desire to Use the pari of the way in question would be 1# i:c l from lev property to Kelvin road or ftotn Kelvin mad to her property, but ■ t would be ludicrous in suppose that, when tire trees were felled, Mrs Guthrie desired or intended to u.-e the way for any such purpo- •. That indeed was not suggested at anv -tage. But it is only if she had a bona tide desire to exercise iter right-of-way for the pmoo e indicated that the question of obstruction could arise. Any obstruction mi llm way could operate to her prejudice oulv if she desired to exercise her right of

way. and it is no! : uggivled that she had ai:v such desire. The fact is, I think, that when Mr Guthrie let the contract for cuttin': the trees, he thought that they were growing on his mother's property, and that they :,11 belonged to her, and the attempt oi ju. 'ifv the interference with the trees on ■I he .mound now put forward is purely mi afterthought. The trees- were cut down, not or the purpose of removing an obstruction to the way, but apparently in order to provide tirewood for Mrs Guthrie’s house. “Th-' other grout'd nut forward by (ho defendants is this; ’I respassers, it was said, were in the li-bit of entering the way from the North road mu! travelling into Kelvin roar! through the gate on Mrs Guthrie’s? property. It was said tnat Mrs Guthrie ih -ired to hast the Kelvin road end opened -o that these trespassers might be diverted trom her property. Having inspected the limalil y, 1 find it impossible to believe that cither Mrs Guthrie or Mr Guthrie had any such purpose when tho contract for felling the :;ees \v;e hi. But even if this suggestion is to be accepted seriously it is clear, I thirk. that Mr- Guthrie would not be entitled to have the way kept clear for the use of such trenui.-'-ers. The grant is in favour of the grantee ’his heirs and assigns and Mi others having business with him or them.’ ThU would include members of the owner’s family, servants, visitors, guests ami tradespeople; but certainly would not include any . person-? who, its against Mrs Guthrie, were mere trespasi-ers.

“The result is that the defendants have failed, to justify their interference with the trees, and the Mae.Kellars are entitled to an injuii'-lion to restrain the defendants, their servants, and agents from interfering with any of the trees on the way. They are entitled id.-.if they desire it. to an enquiry as to damage i for the destruction of the trees already cut, down. “The only relief the plaintiff Brodrick is entitled to is damages for the trespass on his property by reason of one of the trees when cut down falling on his property. I assess the damages at £l, and give judgment for that amount.

“The plaintiffs are allowed costs on the lowest scale with disbursements and witnesses’ expenses to be fixed by the Registrar. The plaintiffs arc entitled also to judgment on the counter-claim with costs.