THE ICE CREAM CASE.

Taranaki Daily News, Volume LIII, Issue 209, 13 December 1910, Page 7

THE ICE CREAM CASE.

THE VENDOR FIXED. The adjourned case of Tippins (borough inspector) v. Edward Beal, who was charged on Thursday last with having un- j lawfully occupied with a horse and cart I a portion of a public place, to wit, that I portion of Buller-street on the East End J Beach, within the borough of New Plymouth, for the purpose of selling icecream, without beins licensed as a hawker, on November 25, came before Mr. I Fitzherbert, S.M., yesterday morning. It will be remembered that the adjournment was made with the object of allowing his Worship to make an inspection of the locality. < Mr. Hughes, acting for the defendant, < proceeded to refer to the advantage of a personal inspection by his Worship, which was better than all the evidence of : surveyors and witnesses, and stated that i it would have been seen that defendant : had placed his horse and cart well outside high-water mark at spring tides. Hir Worship here remarked that ; cpun- i sel was not entitled to address him a sec- ! ond time under the Justices of the Peace Act, but could refer to law points if he . wished. i

Mr. Hughes then mentioned a case in which judgment was given by Lord Cramworth, who spoke of land as being incapable of cutivation where the land was unappropriate soil, and that.the character of the ground should be taken into consideration. The 'whole of the ground, said Mr. Hughes, from the back of the fence was open sandy soil and was mainly overflowed by water. It was not manurable land. The defendant had very plainly in his evidence shown that he was standing on ground he knew the water had flowed over and he considered he was within his rights. At the most, it could be said he was there as the result of a misunderstanding, and if there must be a conviction the fine should be only a nominal one. i His Worship said the facts were not disputed; the defendant had his horse there and had tied it to tjhe wheel of the cart and sold ice cream. The defence had raised an important point, that although it might have been in a line with Buller-street, the land was Crown land, and therefore outside the jurisdiction of the borough by-laws. His Worship had gone down to the place, and it was pointed out where the defendant was standing, and it was clearly inside the boundary of Buller-street. Also, he noticed that although it was only half-an-hour after high-water, the mark of the tide was a considerable distance away from the spot. The best evidence defendant had given was that it was covered at high tide and that he had seen it himself about two months ago. His Worship cited authorities to show it was fatal to defendant's case that he had not been able to prove that the spot had been covered by water at least four days in each week, or for the most of the year was reached and covered by the tides, not that under certain circumstances—a storm, for instance —it had been covered. He would convict, but would take into consideration the fapt that defendant had done no harm in using the roadline, and would not enforce a heavy penalty. He would be fined 10s. The Court v costs were 7s, and cab hire for the inspector 4s.