CHAMBERLAIN V. HUNT.

Wairarapa Daily Times, Volume 6, Issue 1640, 21 March 1884, Page 2

CHAMBERLAIN V. HUNT.

JUDGMENT. The following is the written judg ; . mento£His Honor Judge Hardcastle. in the above case "In this case I think the judgment must follow the verdict and be entered for the plaintiff for £2O damages and costS'.to be settled by the clerk in accordance with the agreement of the parties. The claim is for trespass to land and the plea puts the title to the locus in quo in issue, The defendant thereupon claims that the jurisdiction is ousted, It seems however clear, that the title must Ima Jide appear to be in question not only upon the pleadings, but upon the evidence in order to have that effect. E. Y. Price in re Coleman, (1, N.LL.R,S.C. 354.) In tills case I do not think any hom fide dispute of plaintiffs title by defendant arises on the evidence, That shews that plaintiff and defendant are owners of adjoining sections divided and bounded by a running stream. The locus in quo is on plaintiffs side of the present running water. A large mass of evidence was brought forward by him to shew that at this spot the course of the stream had not altered since his grant, and defendant's grant was much later. Defendant did not admit this view of plaintiff's title, but set up that when his (defendant's) land was granted to him, the stream which was' the mutual boundary so ran that the disputed spot was on his (defendant's) section, and, that it is, by an alteration in tho course .of the stream, that it now appears on plaintiff's side of the running. But all the evidence for both sides is that when the stream is not in flood no perceptible alteration of its course takes place, .or has taken place here. If, therefore; such alteration has taken place at all it must either havo taken place by imperceptible degrees or by sudden flood. If it took place by imperceptible degrees, that would alter not only the locality of the running water, but with it the legal boundary, and therefore the title to the spot in question would still be in the plaintiff undisputed. If the locality of tho running water were altered by a sudden flood, it would not shift, the boundary, but that is a conclusion, to support which, if it had been within the jurisdiction of the Court to try it, I should have had to tell the jury that there was no evidence, lam aware defendant said 'The doviation must have been caused by violent flood. Tho stream does not encroach gradually, not at all unless in flood,' but this seems to me only an attempt by a witness to draw an inference and not, substantive evidence. For these reasons I think the jurisdiction not ousted, and give judgment as. stated." Mr Bunny appeared foi Chamberlain, and Mr Beard for Hunt.