R.M. COURT.

Wairarapa Daily Times, Volume XI, Issue 3647, 24 October 1890, Page 2

R.M. COURT.

; MASTERTON-THUR3DAY, (Before Col. Roberts, R.M.) : Civil Cases. Lowes and loms v Hugh Mitchell. —Claim for amount of promissory note, £25 12s 6d. Judgment for amount, with costs 30s. Kelly v Rutherford,—Claim, £5 for work done and goods supplied. Mr Pownall for plaintiff, Mr Beard for defendant. Judgment for plaintiff for £lßs 8d and coses,

A, R, Bunny v H. Carnell,— 1 Claim for amount of judgment 1 summons, £6 2s. After hearing < evidence the Court made an order i that unless the amount is paid within .1 three days of tho service of notice the i defendant bo imprisoned for. nine days iu Wellington Terrace Gaol. i GEOROE-STREET RATES. , Masterton Borough Council v. ! James Berriman,—Claim for £5 Us, proportion of rates due on construction of George-street. Mr Bunny for plaintiffs, Mr Pownall for defendant. Mr Pownall admitted the formalities of tho case, but asked for proof that the street was a private ono and that defendant had been charged his correct proportion of rates. Richard Brown, sworn, deposed that ho waß Town Clerk for the Borough of Masterton, and had been so since 1877. George-Street was a private street, At the timo the property was cut up a plan was submitted to the Council, showing George-street, The Council gave permission for tho road to be laid off. The snm claimed (£5 14s) was a fair proportion according to the terms of the Act, The Council did the work, tho defendant and other owners failing to comply with tho notice. Mr Berriman wrote to the Council in the first place, asking them to do something with the street, as there had been several accidents there. The Council went into tho matter, , but found they could do nothing ns the | street was a private one. (The petition i of owners sent to tho Council was here submitted, together with the Council's : reply,) The Council wrote to the 1 owncrß of unsold property, asking 1 what they would subscribe towards tho making of the street. In reply to a letter forwarded him, Mr Berriman stated that tho residents were not , willing to subscribe the £2O required i for completing tho work. Witness then gave defendant and others notice [ to make the street before Ist April.. ; The street was subsequently adver- . tised and made, and the Council ' paid for its formation. The amount ; claimed from defendant was correct | according to his frontage, By Mr Pownall: George-street was a private street, and he know s pretty well the whole of the streets i in tho Borough. He was prepared i to swear that the road was laid out on s private property. He was aware a ! plan was submitted, and had no J doubt he could find the minutes if he 1 had the date, Ho did not think there was the least doubt but that I tho streot was intended for the use . of the public, but it was impossible 1 for anybody to swear to this. George i street was a private street which had 1 received the sanction of the Council. 1 Tho Council had no official plan. ! There was no plan to show tho street was a privato one. All j lie knew was that since the formation cf the Borough the i street had been laid off as a private ■ one. Did not know what kind of a ' street Worksop road was. In the cp&e of Worksop road an equivalent L was given, although it was a private street umkr the Municipal Corpora--1 tionsAot, This road was oonstrugted i at the Council's expense, hut lie did I not think the Mayor and two councils lora had land abutting on it at the ' time. (Mr Pownall: Oh, then I'm ' misinformed,) George-street was in ! Bentley's estate. It was made a ! chain wide because it was laid off . since tho formation of the Borough, It was a private streot under the Act 3 of 1878, and no application was made , that it should bo le?s than sixty-six > feet wide, The applicants for tbe f road were Messrs Thompson, Shannon , and Co. Had no knowledge of the fc Council exercising rights of priority j over the road, The subscriptions E offered might possibly have made the footpath. Tho owners of land knew i before the rood was made what they i might expect, It was the duty of ! the Council, uuder the Municipal ' Corporations Act of 1876, to provide | correct plans of private streets. This, t ho did nqt'tliin];, hadbeeß done, Ijut r it did not apply to the defendant, as i he was at the auctipn sale. The i road cost £43 4s. Tho contract 1 itself vas let in a. lpp sum. The ' remainder was for plan, overseer and ' advertising. The proportion of tho cost was cast according to the chain. | ing of the sections, on either side, He 1 had no evidence more than the f ordinary custom to show the original i object of forming the road, r Ry Mr Bunny: Tho land was put up by public 'auction, but he did not know for certain whether defendant ! was present, The road had been used j by the pqblic since it was laid off. Mr Wliit f %r, iphfl had land also abutting qt} tlie qtreeL hsd pajd his proportion. The, road was as q matter ot fact intended for the use of I the public, [ S. E. Gapper, sworn, deposed thxt , ho was a Councillor and had hpen so • without intei'missjon for the past ' fourteen years. J(new Bentley's 1 estate well, and knew by report that Thompson, Shannon and Co. had land there. Remembered a plan being i submitted to the Council, wliioh was accepted. On this plan George-Btreet was fihown, Ttjjs was in ipß2. The ' land pg sold j)y auction and several ' sections abutfed on yhi|t is now kflOwjjasCfeofije-ijtfset, ||)e jjtrect was laid oat by tho proprietors of the land, Witness was at the auction room at the time and saw the auctioneer submit the plan, Mr loms said that all purchasers bad to do; waa to take the land and the Council would make the road. VVftness, as Chairman of the Works potjirjiitfee af flip time, informed Mr {qrns'ofjiis cpopW publicly intimated t|a(: vhpevpr opijgljfc the land had to fiiafro flie afreet, Defendant admitted to him afterwards that |ie heard what was said. Was • iji (he Council when Mr Berriman 1 wrote about the street, and had Qoi)V£i:sajiip|j3 wjth him privately, The letter's and "correSpontjeiicp 1 produced was read before tbe Council 1 and tho Town Clerk was apting 1 properly. By Mr Pownall | The defendant ! might have said ho had heard what ; witness said in the auction room, ' Could not swear tbat defendant was j present at the time. Could swear that the intention of the original owners 1 of the property was that the road J was mado for tho use of the public, This waa a common senso conclusion, ' The ressou he gave' jot* t|e roatj 1

bping public was tbat it was used by tlia public ever since. Under the Municipal Corporations Act be thought defendant bad to pay. Witness had land in Worksop road when it was made, The road wag made by the Council. Witness tendered hie money for it, but it was not accepted,, ' James Berriman, defendant, deposed that he had property in Georgestreet, which ;lie had owned for the past two years, During that time the street bad been used by the public. Witness and others had had certain communications with the Borough Council about the street. Was aware that the Council had looked upon the street as a private one. Had spoken to Cr Gapper about the matter, and he had advised .him to do as little as possible to it, and let the Council take it over.

By Mr Pownall: Had his certificate of title for the land. Knew there was a road through it, but it was not made. Objected to the taxation because he did not know why ho should pay for the making of roads, wheii be paid liis rales, Until he asked that tho road, be made nothing had been said about. Declined to pay for the Borough's roads until it was proved to his euti&faction that it was a private street. Mr Pownall submitted that there was no evidence of proof that tho street was a private one. The Council could only compel those .whose land abutted on a private street to pay for the formation of tho same. The onus or proof clearly laid with the prosecution. Both Mr Qapper and tho Town .Clerk had said that from a common sense point of view the street was a puMicone. But no plan whatever was submitted. This was an important point. The Act which controlled the street was that ot' 1878, and there was no other provision or amendment till 1884. Tbe present street came beneath neither definitions of the Act of 1878. All they knew was that some sanation was given, but. they could go no further. It might just as easily havo been a street as a private street. There was nothing to show that When the street was made it was for tho use of the public. This was the first occasion on which such a claim had been raised, and it was a strange fact the ratepayers who lived in Worksop road, the most of whom were Councillors, were not compelled to contribute towards making that road. He would ask for a nonsuit on the grounds that there was no proof that the street was privato. Mr Bunny submitted that tho Court could come to no other decision tlmn that the street mts a privato one. It could not be expected that the Council would hare a plan in its possession, Tho Act did not mako it necessary tor applicants for a road to submit a plan. Upon the evidence given there was conclusive proof that the road had been laid od by the owners of private property. His Worship must therefore recogniso that the street was a private one, He submitted therefore that the nonsuit could not hs granted, Mr Pownall said be did not pretend to urge that the production of a plan .Was necessary; All he wished to say was that the witnesses had relied upon the plan, and this was not forthcoming The Bench said that as tho case was of public importance decision would be reserved,

FRIDAY, Breaches of .Rabbit Act. T. Mackay, Inspector of Watinrapa North Rabbit Board, v J, 0. Andrew,failing to destroy rabljits, Mr Bunny for plaintiff, , Mr Andrew said that an inaccuracy occurred in his summous, in thatit was not stated before what magistrate the case was to be heard, Another error occurred, JJIr Mackay being termed " Inspector," whilst he was a "sub-, inspector" of the Board, he maintained j he was nut, the proper person to sue, The Chief Inspector had to sue for all penalties. Resolution had- been passad at a meeting of magistrates in Carterton, and at a public meeting in | ftjastorton, to tbo effect that the Rabbit Act was vexatious, The Government, in its wisdom, had therefore amended the Act last session. But at any rate the Chief Inspector (vaa bound to prosecute. He would poinbout in corroboration of what he urged that the evidence taken before the Joint Stock Committee of the Houso— The Bench: That's not a statute and cannot be admitted.

Mr Andrews: By the A°t of 1860 your Worship will find that the evidence can be admitted for what it is worth, Mr Bunny said the objection regarding thp proaocutlon. by a SubInspector wfis explained in section 18 of tho Act. Mr Mtckay wasproporly described as an Inspector and had the same power as a Chief Inspector to prosecute, Section 12 of the Act did not como into operation until it was shown that the lUbbit Trustees were failing to, do their duty. It was only on these conditions the Chief Inspector was bound to prosecute. Mr Andrew said the Act provided two cases, one where the Board failed to carry out their duty, and the other where a resolution of the Board instructed the Chief Inspector to prosecute, Mr Bunny: But this resolution has net been passed, The Bench upheld 'the jontention qf Mr Bunny that the Board had not passed a resolution, My Andrew maintained that the duties o! the Inspep|or wore dpflned. The wrong person had been directed to proseccte. The Bench thought that tinder tlie Aot of 18fG Mr Maokay was given power to prosecute, The objection woqld be qver-ruled,

Mr Andrew: I wish my objection to be taken notice fl{ as a grounds for appeal, Mr Bunny said the information had been loid on 13th October by Inspector Mackay, who had inspected tho property of defendant since July, His property comprised soroo 18,000 acres of land, and il would be proved that since the sprrico of notice he had failed |o satisfactorily comply with tho Jj4, Tlijs wi)s pflt t)ie fjrat time Mr Andrew bsd been charged with .failing to destroy,' He was aconstant culprit, • and had a peculiar way of dealing with the rabbits which must be cjia.fatrous to himself afld neighbours',' lie would ask tbat the defendant bp tnqvgd by a substantial ppnnlty, Thomas Maclfay, sworn, stated that he was on inspector appointed by tbe North Wairarapa Rabbit- Board, Since his appointment he had visited the defendant's station, On July 23rd lie saw a large number of rabbits, although poison was being laid, His next visit was on August 7th, on which occasion he saw a number ol rabbits on ground which had apparently been jioisonetj. On August '^t)j

he b irved a notice upon defeiiciiiht, calling; upon him 'to destroy . the | rabbits. Ho found the pest very numerous indeed on September Blh. Tho property was not fenced with rabbit proof fencing. Saw that very litllo steps were taken to destroy. Was told that there were three men on, hut this would he utterly inadequate, The breeding- stason thi3 yoar commenced in August, nnd the season had been favorable for. an increase. He next visited the properly on the 2nd of October, and his opinion was that tho rabbits wero still further | increased. Drew Mr Andrew's attention to the serious state of the run, and he appeared to be very much alarmed and said it had been a very had season for poisoning. He beliored Mr Andrew put on extra men, but the results wero not satisfactory in his opinion. He was of opinion that no efficient steps were taken. From his observation Mr Andrew's stock was being affected by tho pest. By Mr Andrew: Bcmembered saying that poisoning was the best method to adopt during winter. Babbits apparently hid thomselves where poison was laid, When he visited the run he Baw a number of ralbits and saw no steps being taken. There might have been fifty men at work, but he did not see them. There was good shelter tienr the house for rabbits. When he visited the pluco on October 2nd ho shot at a rabbit »nd saw defendant with a gun. Noticed that tho sheep were in poor condition. If a flock was badly injured the lambing might not be very good. '• By the Bench: His opinion was that tho whole run was infested more or lees.

Mr Andrew: Then parts of it were less infested. Mr Muckay: Ob yes, l f or the defence Mr Andrew said he did not deny that but that there wore fnr more rabbits on liis run than was good for himself or anybody else, But lie did most emphatically deny but that he had not taken efficient steps, The fecundity of the rabbit was very well-known. Ho had no better illustration of this than Mr Mackay himself, When ho was placed in chargo of Ic.n there were no rabbits, and when he left the placo was overrun with them. He did not wish to say that this was Mr Maokay's fault, Ho was prepared to swear that Mr Mackay had told him that poisoning was the best means to adopt, He had had fifteen or twenty men poisoning, It was n great hardship that ho was compelled to defend his me ia Mastertori, It would cost him £4O to bring the witnesses he desired to Maslerton, If the case was, adjourned to Tinui he would be able to produce evidence as to what Bteps had been taken at comparatively little cost. If the Court did not take his word for it that steps had been taken to destroy tho rabbits he would a«k for in adjournment to Tinui. Mr Bunny opposed the adjournmont, and said if the defendant so desired he could apply for a mitigation of the fine which might be inflioted.

Mr Andrew, on oath, stated that ho commenced poisoning on the last day of May, and continued with about fifteen or sixteou hands till the middle of August. Went on poisoning with fewer hands till tho Bth if September. Mr Bunny: Were you there 1 Mr Andrew said he was not, but when ho left on 23th August he left instructions for poisoning to be continued. The cost of poisoning was £IOO, Owing to (ho Btriko he could not get homo until a few dayß after ho had intended, He then secured the services of as many effi- ' oient robbitere as he could get. Ho employed seven men, One who he kopt about the place he dismissed, as he was no good. On September Bth he received a note from Mr Mackay, staling that certain portions of his run needed attention,, He put men on each of those places, He had six men now camped out'on various parts of tho run. This was in addition to the men who destroyed tho rabbits on tho homestead, He had a deal of gqrse and manuka destroyed Binoo August 6th. IJo had also had men to bum any land which might ho a harbour for rabbits. He had ploughed up a hundred acres of land at that place where rabbits were most likely to pass to his neighbours, H'j could,not devote as much attention to' the rabbits as he would Itko, as ho had to destroy wild dogs, If lie could haye have got other hands that jio could trust he would have put them on. He was prepared to swear that the' rabbits wero less now than they .were the same time last year, During the year he had spent a considerable sum in stoats and weasels, and these did good work. Tho percentage of rabbits from one part of the run was far greater than it should hare been. Ho had destroyed botween 3000 and 4000 rabbits, for which he bard to pay 2d per head from tho timo notice was Ho had applied to tbo subinspector of the Board for ferrets, but he was sorry to say ho did not asjist him in getting any. By Mr Bunny; Admitted the receipt of the notice on August 14th, Ho was. not prepared to swear that the rabbits had or had . not increased since that time. He did not think they had, The rabbits in the immediate vicinity of the whare3 were diminishing, He had refused to take on a hand since he had received notice, because he did not know what his penalty might be, Mr Mackay might be instructed to put on fifty or a hundred men, and he would have no home to go to, Mr Andrew pointed out that he had taken all tho steps he could far many years to keep the rabbits down. It was very unjust that he should bo liable tq a penalty, E'-ery half-penny the Board inflicted upon him as» line would he so much less to expend in destroying rabbits, He might have been in England at the present time, but ho oonsiderod it his duty to expend the money ho would' have done in taking tho trip on the suppression of this tcrriblo evil, The Bench said a conviction would be entered and a fine inflicted of £lO with costs 7s, Mr Andrew; I wish your Worship woiik} mi|kp itL5, The Benoli jnliiniteij t-liot it could not go baqk on its decision, ; (Left Sitting.) |