DISTRICT COURT.

Wairarapa Daily Times, Volume XIII, Issue 4295, 15 December 1892, Page 2

DISTRICT COURT.

MASTERTON.-WEDNESDAY,

(Before His Honor Judge Eobinsbn),

JOSEPH AND PHILLIPS V. CUNDY,

This was an action brought by the plaintiffs as own™ of certain sections on the Moroa, adjoining property held by the defendant, to recover damages for damage to plaintiffs' hush, alleged to have been fired by the defendant. Messrs Hislop and H. S. Izard appeared for the plaintiffs and Mr C, A. Pownall for the defendant. .

The following jury was empannelled:—P. Frazi. A. Ohisholm, W. Neill, and A. Copping, W. McMillan, bush overseer for Messrs Joseph and Phillips, deposed that he knew the land where tbe fire occurred. It was somewhat swampy. The bush was out ready for suitable weather to burn. Hud been instructed to go through the bush on tbe 4th March, to see whether it'was ready to burn. Had been through the bush before. It was dry weather about the 3rd March. It had been wet before. On tbe third of Maroh was going home about five o'olock when ho noticed smoke coming from Cundy's. Went to his house and asked him (defendant) if he bad set his bush on fire. Cundy said " Yes." Could see the fire. It was in Mr Phillips' and Mr Cundy's. Had told Cundy ha could not light Phillips' bush because cattle and sheep were in it. Tho fire was burning several days and it made a bad burn in most places, but some of it was pretty well burnt, About 1000 acres of bush were felled ready for burning, About eight or ten chains of grass was between Messrs Cundy's and Joseph and Phillips' property, Between eleven and twelve would be the best time to light a tire, If there had been further dry weather he might have set fire lo the bush, but thought it would have been better left for another year than lighted at the time it was. Since the fire tho land had been logged up, Less logging up was required after a good burn than after a bad. Had seen'the ground this year and thought that a better burn might have been obtained if left till this season, . " ■

By Mr Pownall: I sent Mitchell to Featheiston to wire tn Mr Phillips that a bush was on hie near his. It was not Cundy's but Walker's bush, Considered it dangerous enough to send to Mr Phillips. asking what should be done. A road was between Messrs Walker's aud Phillips' property. Mitohellhrought amessagefrora Cundy to say he was going'to set fire to his bush. Gundy wus eight miles away at the time. Went over immediately Mitchell told me that Cundy was going to fire his bush. It was some miles from Cundy's. Saw the smoke rising in Cundy's bußb before t met Mitchell.. Phillips' bush was alight when 1 passed. 1 told Cundy t was not going to interfere with it that night, except to get the cattle out. It was impossible to stop the fire, Had more senso than to go in and get burnt to death, Don't remember that Cundy had.on his tiding leggings, Do not recoiled seeing Mrs Cundy, There was no mistake, good weather was required to get a aood burn. The land was swampy, but it was possible to get a better burn. It is hard to say if this was probable. A large portion of the bush was whiowaka, which was hard to burn. Messrs Joseph and Phillips employed a number of raeo. Mitoholl and Allwood were employed boforo tI.o fire. Jacobs and Fuge afterwards.

By Mr Hislop; Tbere was no dangei' of fire getting into Mr Phillips' hush from Walker's unless the wind changed, | By Mr Pownall: I told Mr Phillips wbat conversation I bad with.Mr Cundy. W. 0. Williams, settler of Kaiwaiwai, deposed to recollecting a fire starting about 5 o'olock on the 4th of March. Had seen it on Mr Phillips' and burning across the road at Mr Cundys, The wind was about northwest to west and very strong,. Was on the bill near bis bouse about a mile distant. There would have been a difference in the bum if the fire had taken place a fortnight later. The water would have run off. The fire went through a portion of his bush, and he estimated that it made a difference of £SO in forty acres. Believed that as a_ rule, it was arranged amongst neighbours to start a fire on a certain day. Had a good deal of experience amongst bush, and should have lit a long block of bush like Mr Phillips' in several places. By Mr Pownall; My bush is on the east side of Mr Phillips'. I did not see where tho firu originated. I saw fires in both Mr Oundy's and Mr Phillips'bush, but cannot say where it commenced.

To His Honor: I saw fire in Mr Oundy's about an hour before I saw it in Phillips'. I was about a mile away, I could clearly see the line from where I stood.

Frederiok Olson deposed to seeing fire on Mr Phillips land between four and five in the afternoon of the 4th of March. Could not say exactly where it started. Did not think it was a good time to burn as it had been showery. Should have tried to get a burn. Would not have left it over till next year, In some places the burn bad been good, but in others it was bad though tho land and timber being wet, Had been working on tho land siuoe, It was not an easy thing to estimate tho damage. It might have been logged up for 7s or 8s an acre leas if the burn had been good. By Mr Pownall: Could not say that tho burn would have been better if they had waited a fortnight. It was possible to get a belter burn but it could not be guaranteed, Would not havo left the fire over for another year because the underscrub would have grown up. Coflld not say whether or not Oundy's bush was all alight at once. Maurice Mitchell, stOckmanj in the employ of Coleman Phillips, recollected meeting Mr Cundy on the road to Foatherston at about a quarter to two, Told Cundy that he (witness) was going to send a telegram to Mr Phillip's telling him that Mr Walker's bush was on fire, Afterwards met Mr Cundy who then said ho should fire bis busb. Mr Phillips' instructions wore that they were to examine the bush and see if it was in a condition for burning. There was some talk of leaving the burn till next year, By Mr Pownall;—The place was wet to a certain extent, in places, all the year round. William Fuge, owner of a small area near Mr Phillips' property, deposed that at tho time of the fire on i March 4th he was working at bis own place. .About five o'clock in the afternoon ho noticed a fire coming across from Cundy's to Phillips'. The jire swept right.across aiid spread as if went. As far as he understood the matter, the proper mothod would have been ioligbt the bush in aovral plage*..- The land, ought not to baye,

been burned at the timo it was, If the weather hud been fine it would have been as well lo burn in March, but if not, it would hava been best to have left'it lill the next year, By Mr Pownall!-1 will swear that tbefiie did not spread from Walker's to Phillips', I refer only to the part near my own section, I believe a lot of tbe bad burn was caused by the bad fulling.

By Mr Hislop:—Providing all the •: circumstances wero tbe same the burn should have been better a fortnight later. William Watson, residing threo or four miles from the fire, con« sirlered that the evidence as to the proper mode qI firing a ■ a piece of land like Mr Phillips', given by Mr W. 0. Williams was oorreot, " Had some experience in-bush work, Acting tinder Mr Phillips' instructions had warned the neighbours round. ■ • By Mr Pownall: Could not say whether any fire got into Phillips' from Walker's, Coleman Phillips, one of the plaintiffs, remembered the Brd of Maroh., Was, in Wellington at the time. Had given public notice, in the Standard, as to what was to be done in case of fire. Had sent three notices to Mr Ctmdy by Mr.McMillan asking him not to bum, Cundy had eight acres of bush and lie (witness) had twelve hundred acres of bush felled, ii Had given the neighbours notioe not to light fires to endanger his bush, The month of March' was the generally accepted time for burning. He rather intended burning about the 15th of Maroh. The bush was well fallen. McMillan was to report,' and witness would then have sent notices to the neighbours when he intended burning. It was his intention to leave the bush over till the following spring, as it was mostly whits and red pine, and he understood it would burn better the second season, The wind was about two points to the north of west, ot the tine of the fire, aud it swept through towards the standing bush, Mr W. 0. Williams' description of the proper method of lighting &, bush lire was correct, It was in bis opinion a very cruel thing to have lit tbe lire on a Thursday, us it endangered about twenty small homesteads. It had been arranged that his bush should be started on a Monday morning so that the husbands could be at homo with their families. Had spent ' about £15,000 on the 2000 aoresi The expenditure for logging was' about £l,lOO already. By Mr Pownall: Had.put stock on within the last month—sso cattle and 3000 sheep, The property consisted ■ of 1,180 acres fallen, and the remainder was swanip and bush. Had told Cundy the damage was £IOOO, Had originally wanted the action taken into the Supremo Court for £IOOO. Had withheld from bringing the action against Mr Cundy before, out of consideration for him, Did not complain of Cundy setting the fire alight, but complained about the damage. , Had published in the Standard his . iutention to bum on the first suitable. , day after tbe 15th of February. Had t inserted a previous advertisement to ) the effect that he should burn in I March, Had written to Mr Fenwick j telling him he (witness) should burn , about the middle of February. Mr , Cundy admitted that he was respon- > sible for the fire, Ho did not [ deny it. , Cundy had said he 3 had not means to meet the I responsibility. Always held Mr j Cundy responsible, Mr Walker's fi.ro . did not do bim any damago. Had written lo Mr Walker telling him that , he was responsible, because he < thought that although the damago I was done by Cundy, be would have to hold both responsible, j By Mr Hislop ; I have not been : unduly anxious to be vindictive to Mr Cundy and only wished him to admit . my rightto protect my own property. 3 It was the same with Walker. He f hodnoriglii to light a fire amongst > the small settlors. [, This dosed the oaso for thodefence. . Mr Pownall addressed the jury for the B defence, and the Court adjourned B until ten o'olock on Thursday morn-

THURSDAY. On resuming this morning, on the application of Mr Hislop.all witnesses for tho dofenoe were ordered out of Court, Joseph Cundy, defendant in the present action, deposed that be did not light the firo or cause it to be lit, He did not know anything about it before it wap lit, It wob not lit by his orders, His bush had been really for burning, but bo bad deferred burning as Mr Phillips' bush was near at band. Had been at KahautarS on the day of the firo, arriving homo at about 2 o'clock in tbo afternoon. Stayed at home just sufficient time to get a oup of tea and went out again, Had noticed a largo body of smoke beforeheleftK:ibautara,andhad hurried home as he thought it was Phillips' bush on firo. Went to whore thefire appeared to be, and on the way met Mitchell, and stopped him to ask where tho fire was, Mitchell Baitl Walker's bush was on lire, and ho was going to telegraph to Mr Phillips for instructions. Had waited nearly an hour for Mitchell's return. Ho brought no instructions from Mr Phillips. Told Mitchell to tell the manager to send word what he intended doing, os his (witness') bush' was ready lor burning. Had then gone homi, and soon after noticed tho firo (as noar as ho could toll) in tho boundary between his and bis brother's bush, Soon after saw other fires spring up on Mr Phillips' property. MoMillan came while witness was having tea, and asked Mrs Cundy if ,he was at home. McMillan made some remarks about the lateness of the hour, and in reply to witness said ho had lit several fires, but could not get further up tho line for smoke, Had gone out to see where the fire was and found his own and his brother's bush alight, but could not get near. Never admitted setting fire to the bush to any penon. McMillan was incorrect in stating so. Had not been near tho bush that day before the ovening. Had no men working in tho bush on that day, The wind was about s.w. A north-west wind would blow right along the road, There was a space between'the two firoa. Had not seen any trees in the intervening space on fire. A great portion, of Mr Phillips bush was " whiwhaka," s TJi9re was some pine, Had been through a portion of the bush after tbo burn and considered it was a splendid burn for that neighbourhood. It was very swampy land and carried surfaco water all the year. Had seen some bad • falling in ' places. It waß not possible to get a better burn. It was a far better burn than witness had ever got on adjoining property. Mr Phillips' land was 'now in grass and capable'of carrying stock, Had met Phillips who', commenced a conversation about fencing and said the bush would bea serious I witter,' Wil««ep bad replied,

"1 hopo not, as I have r.ot got much money to spate." Had ieceived several letters from Mi'Phillips and ala> a letter from a solicitor. The matter had been bunging out * Bonfti little time. Thought that instead of doing Mr Phillips damage it had done him good, Hud never . found out the cause of the fivo i (left Sitting)