R.M. COURT.

Wairarapa Daily Times, Volume XV, Issue 4329, 28 January 1893, Page 2

R.M. COURT.

MASTERTON-FBIDAY, (Before Colonel Boberts, 8.M.) DESTROYING A FENCE. Woodroofe v. E. J. Williams. This was an information laid by G. W. Woodroofe against E. J. WiUwisJor the wilful destruction of a Mfcn the plaintiffs property. Mr BsM appeared for the plaintiff and Mr Pownall for the defendant, George W. Woodroofe, on oath, deposed that he was the ownor of allotments 89 and 40, which were part of section 15. A fence was erected by him on the southern boundary of allotment 89, where the land abuts on the road. The fence was ereoted according to the plans whioh his title directed. When he purohased the land there was a fence on nearly the same linn as the present, The fence erected by him, and whioh had since been destroyed by Williams, was about fourteen links on his property and away from the road. The damage done would oost about fourteen shillings to repair. . ~. The defendant admitted having destroyed the fence on January 14th, Mr Woodroofe, continuing his evidence, Btated that one of the posts was split right down and three of the rails were cut, The wires were, in addition, taken down froto a Beven wire fence, which was a continuation of tho first. By Mr Pownall; The fouce that was there before was a wire fence, and might have had slip bars, he could not say that it had not, nor could he say that it had not been used as ft right-of-way. He could not sayjf' ' the fence was continnous.. witness had erected was only) this year, It was cut down previous to getting Mr Pownall'B letter, and was cut again on the 14th, after he had received the notice. People had gone over his land to tho river, but ho intended to stop them, He could not say whether they used to go through lot 40, the one he had just bought, He did not fence in the river bed nor road. He had brought the action to establish the right to his property. Was aware that when he brought this action defendant claimed a right-of-way through the section owne,l by witness. He had received the notice of this claim when he laid tho information, From what Mr Williams told him, he had shifted the survey peg according to the distance on the plan. The peg was shifted six and three-quarter links. The Surveyor had since told witness that he had a right to fifteen and three-quarter links more. To Mr Beard: Tho old feuce was not on the road, but oa the section and the peg shifted was not on tho road. .

A, J. Rawson, duly authorised surveyor, residing in Masterton, stated that he had surveyed the section 15 particular lots 39 and 40. The fence was erected on the lot 40 and did not at any place strike the pubho road but was entirely on lot, to- The distance of the fence that was d%ged was over 14 links from theßiver Road. To Mr Povmall: The fence damagedis not oa Mr Woodroofe'a true boundary. There is tho mark of a track where the fence has been out. This track was a continuation of the River Road down to the river, This closed the informants case. For the defence Mr Pownall said he was willing to call evidence, but there was no ease to answer. The court had no jurisdiction because it was merely a oase of disputed title and his Worship could not commit on that ground. Tho spirit of the Malicious Injury to Property Act was never meant to apply to a case of this kind. The whole thing was this that a criminal information was brought to establish Mr Woodroofe'a title. MrPownallquotedseveralauthorities on the matter at considerable length. The whole matter was a question of " title, and it was therefore beyond the : jurisdiction of the Court to deoide. . Tho position was that Mr Woodroofo ' m January, 1898, attempted to stop ' what had been a right-of-way for a number of years past. Therefore, as ' a matter of fact, there was a dedica« 1 tion of the road to tho public, and Mr ; Woodroofe could not tako it away. ; However, the only point which Hia 1 Worship would have to deoide would be whether Williams believed he had a km fide right to use the right-of-way, and if it appeared so to His Worship, there was no other course open than to dismiss the case, Mr Beard Baid that the defence lied on two grounds, viz;— That j urisdiction of the Court was ousted it could not go into the question of title, and to the suggestion that the injury to the fence was not malicious because Williams had a reasonable belief that he had-right to use tho road, Regarding dedication, a piece of land must be in publio use for twenty years .before it was publio right-of-way. Williams might have honestly believed that he had a right to out down the fence on MrPownall's advice, but tho law required something more, It required a reasonable ground for theaction to be shown. Afterfurtber argument His Worship decided to hear evidence. Percy C. If razi, authorised survoyor, stated ho had visited the placo, and Surveyed tho original boundary of section 15 from the main 'road. Most decidedly, in his opinion, the portion of the fence cut was not on Mr Woodroofe's property. It was-about 6f links on the publioYiaL Had measured tho distanco LMm&w hole to the peg hard and fast rulerfaisted that even surveyors were not allowed to shift boundary pegs, and anyono doing so, laid himself opon to a penalty of fifty pounds or six months imprisonment. Although there were inaccuracies in the original placing of the pegs he was still of opinion that tho fenco was on the publio road. By shifting the peg ' Mr Woodroofe has oncroaohed upon' the road 6£ links, E, G, Williams, defendant in the oase, and Messrs McGuire, Conwav, Savage, Dalrymple, Brown and Hatilaway gavo evidence to the effect that to their knowledge a right-of-way had existed over the land fenced by Mr Woodroofe for several years. At this stage the caße was adjourned, At ten o'clook this morning His Worship notified that after careful jM consideration ho had come to the flfii conclusion that the matter was not within the jurisdiction of the Court. Mr Pownall applied for costs, Mr Beard objeotod on the ground that the Court having no jurisdiction it could make no order for costs, The matter was held over until Monday next,