R.M. COURT.

Wairarapa Daily Times, Volume IX, Issue 2764, 2 December 1887, Page 2

R.M. COURT.

. MASTERTON-THURSDAY. (Before S, Yon Stubmek, andA.W.RENALt,, IV.) The Pbescrimion Act. Simon W.'DonoVau was charged under the 25th Section of the "Malicioiis injury to "properties Act", with wilfully and maliciously injuring a fence on the Opaki, tl}e Mr John Hessey. :. '™&yfiß, Mr Bunny appeared for thff*p!ow( N , , „' cution, and Mr Povmall for the ' defence, , < Defendant admitted cutting, down the fence, but disputed the right of - informant to the land. •

Mr Bunny/m opening the case, stated that defendant had repeatedly cut down the fence of the informant, and allowed his cattle to wander away and other stock to get upon his land. The informant's land was between defendant's and the main road. Mr Hessey did not want to deal harshly with the defendant, but took the action'for his own protection, and although the defendant might be dealt with leniently on the present occasion,-he would ask the Court to warn him of the consequences if he continued to repeat the act. John Hessey stated that he was the owner of, certain property on the Opaki,- On November 28rd he was informed that'two of his fences had been cut by defendant. The property had beenu'ecently fenced, and.had been cut down five or six times by defendant, and his stock allowed to stray away, and the land exposed to wandering cattle. Mr Donovan admitted cutting down the fence, as he considered he had a right of road there. By Mr Pownall: Donovan had repeatedly said that he considered he. , had a right of road there, and that was the reason he had cut the fence down. The section had formerly been used as a road, but since witness entered into possession he had fenced it, and it was at present partly under crop. He had put up a gate as a convenience to Mr Donovan while the question of a dispute as to a right of road through the property was in abeyance. The Masterton Road Board had since ruled that there was no claim to a right of road there, consequently he had closed the gate and fenced across it. Defendant protested against the fence being erected by cutting the wires, claiming his right of a road there. The reason he did not proceed against him before was because lie bad been informed that it would be necessary to detect the defendant in the act of cutting the' fence, which was accomplished on November 23rd.

By Mr Bunny: The land ■wafl. used by anyone before be .purchased it, as it was not fenced. Defendant was the only person who" had demanded the right of road. By the Court: He had erected the gates as a neighborly act towards the defendant while the question of the road was being settled. Mr Pownall contended that dejted-' ant committed the offence as a jlßrest of an infringement of a right of road he was entitled to. He claimed that action ought not to have been brought forward in its present guise, which was using the criminal proceedings of the Court to settle a. civil dispute. His client claimed the road by prescription, as he had used it for twenty years undisturbed, and under the "Prescription Act 11, and 111, William IV which, having been passed before 1841 and not been repealed, was still in force. When his client purchased his,land from the Government, the land now in dispute was an open common or waste land, and was used by the settlers there as a means of reaching the main road, there being no other way from their sections' to the road.. Until Mr Hessey got possession, it was always recognised by the previous owners that there was a right of road'over the property. His client considered he had a prima facit claim to this right of road. He contended that the Eoad Board had the power to take land under the Public Works Act for road purposes, and that having surveyed and put notices on it, could not close it.

Simon William Donovan, the defendant, stated that he was the owner of sections 41,42, and 43 on the Opalri. When he purchased it, it was all bush land, and when he wished to get on to the main road always went across'the property now owned by Mr Hessey. He never met with any. opposition from the previous owners, who always recognised that there was right of road there. In 1879, Messrs McKenzieand Palmer, officials of the Mastertou Road Board, pegged out the line of road across this property to the main road, and in 1883, the Board made a deviation of the road and posted up notices at each end, to the effect that it was a public road. One jdLthe notices was still there. 'l§sas always under the impression thattiiere was a road line laid out there, and had received no notice that it was stopped. When Mr Hessey commenced to fence across the road, witness told him he should cut it down, which he did for the first time in July last. There were gates put up at first, but these were subsequently fastened up and he had to cut the wires to get through, ' In December last - be had been paid' the sum of £2 by the Masterton Boad Board for clearing cottonwood and stones off this line of road. He cut the fence down as he considered he had a right of road, and not through any malicious feeling toward the informant, He considered that when the Board put the pegs in and paid Km to do work on the road that it!(was a public thoroughfare. -By Mr Bunny: Had • frequently waited upon the. Board with reference to the road, and was present at a meeting, when they decided not to take it through • Mr Hessey's property, One of the notices was on Elkins' place. Had received a letter from the Board, stating that provisions bad been made for him to use the road* He lad cut the wire fence'twice on November 28. ■: He did. not know, whether the road • leading out opposite the camp was a - public road.or not, Had hot received auy.notice from tbe Board that it was -. opfbHrafficr Diahot tndw. if ft;?

had been constructed to give him access to his property. By Mr Pownall: The notices were on posts lending to Mr Hessey's property. He claimed the road leading out at the Camp as a public road, and the one across Mr Hessey's property as a private one. By the Court: He had no object in cutting the fence boyond regarding it as a right of road. Had no personal feeling of any hind against Mr Hessey. Robert Wilsone," clerk of the Masterton Road Board, gave evidence to the effect that Mr McKenzie, the Board's Overseer, had received instructions to lay off a pine of road through the property in 1879, and that a diviation was made in the line in 1883. 'When Mr Hessey purchased the property, ho agreed to leave the fence open for one month, on the Board agreeing to fence the line of road in and take it over. There was an agreement with Mr Harvey, the previous owner of the land, that the road he laid off, and fenced when required. Tenders were invited by the Board, but the fencing was never erected. By Mr Bunny: Did not hoar the Chairman of the Board-Mr W. H. Beethaui—say that they had abandoned the line of road. The road, to his knowledge, had been used since 1872, and the Board had expended money upon it. Mr Donovan had often applied to the Board for assistance with reference to the road.

Murdock McKenzie, overseer to the Masterton Road Board, stated that m 1879 he received information from the Chairman of the Board to peg off a line of road through the property now in possession of Mr Hessey. The Board had expended money upon the line of road. The road leading from Donovan's to the camp was open for traffic on October 23rd, at which time Donovan knew of it. William B. Matheson, settler, of the Opaki, stated that he was present at a meeting of the Board, in company with Donovan, when they were informed by the Chairman that the line of road through Mr Hessey's property was abandoned by. the Board. The line of road also went through his own property, and he would rather see the road opened to the camp than through Mr Hessey's property, as it interfered with his cropping. Mr Bunny having addressed the Court, their Worships after a brief deliberation dismissed the case without costs, on the ground that defendant acted under the impression that he was entitled to use the line of road, which was borne out by the fact that he received no notice that the Board had abandoned the road, and that they had still left the notice re "public road" exposed on the line of road. Thev, however, cautioned the defendant that now he was aware that the Board had abandoned the road not to repeat the f- act. Mr Pownall- made. ?.«/ application under section 70 of the Justices of the Peace Act, 1882, for a certificate of dismissal for his client. He stated that the defendant, acting under his instructions, would continue to use the

road, and he was prepared to defend the action in any court the owners of f* the property might choose to take it. ' His client'' contended that as he had been allowed to use the road undisturbed for about twenty years, was entitled to it as a public road. Mr Pownall was requested to make Ills application on Friday morning, FRIDAY, DECEMBER 2. Mr Pownall renewed the application this morning, before Mr S, von Stunner, R.M., who granted the certificate, which according to section 71 of the said Act is a bar to any subsequent information for the same matter against the same party.