The Nelson Evening Mail. THURSDAY, NOVEMBER 29, 1866. SUPREME COURT. CIVIL SITTINGS.

Nelson Evening Mail, Volume I, Issue 229, 29 November 1866, Page 2

The Nelson Evening Mail. THURSDAY, NOVEMBER 29, 1866. SUPREME COURT. CIVIL SITTINGS.

[Before his Honor the Acting Chief Justice and a Special Jury.] Wednesday, November 2S, 1566. TRAVERS V. FCnVI/ER. Mr. Travers conducted his own case. Mr. Pitt appeared for the defendant. This was an action to recover £500 damages for a trespass on a run, of which plaintiff was in lawful possession. The declaration stated that the run consisted of 20,000 acres. On or about the 11th March. 1864, and other times, the defendant entered the said run and depastured the same with cattle, and erected thereon divers fences and bridges, and otherwise trespassed upon the same. The defendant pleaded that he did not know whether the defendant was in legal possession of the same, as alleged in the declaration; and that he was not guilty of the trespass alleged. The issues to be tried were — was the plaintiff in lawful possession of the run at the time alleged; did the defendant commit the trespass; and to what amount of damages was the plaintiff entitled. Mr. Travers stated that the license of the run was taken under the Nelson Waste Lands Act of 1858, and that the term run meant an unoccupied portion applied for and defined and granted in a license. At the suggestion of the Judge, who intimated that the term run was somewhat vagxie, Mr. Travers altered the term run to land in lawful occupation under the Nelson Waste Lands Act, 1858. lie then stated the facts as appear in the declaration. He said the defence was the putting him to the proof of possession, and he would prove that the trespass was within the bounds of his possession. J. T. Catley : lam in the Land Office. In 1864 Mr. J. C. Richmond was Commissioner. The license produced bears his signature. Mr. Pitt objected that this license should have been set out in the declaration. His Honor held that plaintiff was not obliged to put it in. All he had to do was to prove posssession; the title he relied on under the Acts. Mr. l J itt contended that plaintiff had not such a title under his license as warranted him in bringing an action for trespass. In the Act of ISSB, it was shown that the rights of the Crown were in no way affected by the license, which gave the licensee a right to the herbage only. The plaintiff' had no interest in the land beyond that of a man who was allowed to graze his horse, in a field. I! is Honor held that every one in possession was in lawful possession till it was shown that some one else held a better title, and he had ground of action against a wrongdoer. The license was admitted. In it the boundaries of the run were specified. The}' were not denied. Thomas Brunner: I am Surveyor- General to the province. The district of the Upper Waiauua has been surveyed. I produce apian of it. [The witness pointed out to the jury the block of 2(^000 acres now in dispute. | G. J Wo! ley :lam a surveyor in the employment of the Nelson Government. I have surveyed the block in question. The plan is a tracing from my own survey. I surveyed it, but did not plot it. The plan corresponds with my survey. I correctly represented the land in my bool<s. Mr. Brunner: The map from which this is taken was mode up from Mr. Wolley's book. Mr. "Woliey : The River Stanley, is a branch of the Wai-au-ua. Mr, Fowler has a house and garden on the western side of the Fiver Stanley. The tracing produced is a correct copy of the map taken from my books. I can point to Mr. Fowler's house and garden, not far from Lake Guion. The doited lines on the western side of the Wai-au-ua represent the base of the mountaius. To Mr. Pitt : The Wai-au-ua. is bounded on the east by a range of mountains. The broadest part of the valley is three-quarter of a mile. From the description in the license, it isnot easy to maik the land up to Maling's pass. I point out this pass on the large map. 1 could not without assistance indicate the whole block on the tracing. I could define, the western boundary, which is marked by dotted lines. Maling's pass is accurately had down, the top of which is the starting point for the survey. From the pass to the lake there is a range of mountains on the western side of Mr. Fowler's house. The saddle represents the watershed and the mountains continue to the south ar.d west of Mr. Fowler's house. To Mr. Travers 1 : The Stanley is a tributary of the Wai-au-ua. The Clarence runs nearly pamJlcl to the sea, as a separate river. The dividing range runs to the east ot the Stanley. To Mr. Pitt : The Stanley flows into the Waiauua two miles to the south of the junction of the Henry. A line drawn east and west magnetic, from the junction of the rivers Waiauua and Henry, represtn'iS the southern boundary of the land as described in the license. To his Honor : A range of mountains runs down from Milling's pass southward, and another range to the east of the Stanley. Fowler's house is to the westward of the Stanley, but on the eastward slopes of the range. The main range from Maling's pass is to the cast of the Stanley. The range between the Stanley and the Waiauua, is not a large spur of the main range, but rather a separate range. Mr Brunner: IcoukUay off the run from the boundaries on the lictiue" produced. I have already marked out the block of 20.U0U acres, iv pencil lines. (The witness explained the plan to the Court.)

Taking the natural /marks of the country on the west side the Waiauua, I could not lay out the block traced on the plan. I plotted the map by taking the base of. the hills as the western boundary. [ The Waiauua proper has several tributaries ; the valley of the Waiauua is bounded on the east by a range between the Stanley and the Clarence. To Mr. Pitt : I have not seen the country. Therehas been no geological survey of it. I determine the northern boundary from the plan on the license, from three lines starting from three fixed points. No mountains are shown on the plan, and mine is in accordance with it. I have not gone]into the ups and downs of the country, in drawing my plan. Within the lines plotted off, there are about 20,000 acres. r J he plan represents the flat surface. Mr. Ilandyside drew the original plan. Mr. Richmond did not. William Newcomb: I am a stockowner. Prom 1862 till now I managed Mr. Travers' station at the Waiauua. I have built a house close to Lake Guion. I know Mr. Fowler. The Stanley runs to the east of the lake. Mr. Fowler lives half a mile from the west side of the river. He has lived thereabout three years, lie came there after I took possession of the run. I had used the country where his house is. I used the saddle between the lake and the Stanley, for horses and milch cattle. Mr. Fowler has run cattle between the Stanley and the saddle, and in the valley towards the junction of the Waiauua. Since 'the lOtli March, 1564, he lias run cattle and hordes there. I should think from 50 to 100 head of cattle, and three or four horses; all in Mr. Travers' country. He has had more cattle running in that direction. He has not interfered with ou Seattle. I have removed his from the head' of the . lake to the Stanley, from a portion of land kept for' feeding horses and niilcli cows. It was good pasturage, natural grass, close to the home station. His cattle ate so much that I could scarcely make any thing of the country. The allowance for depasturing on this land would be. at least, £l per annum per head. Some of his cattle are there now. They have been there three years. To Mr. Pitt: The cattle -were not always in ona spot. I think Mr. Fowler went up there in 1862. I did not point out to him where to build his house, or direct any one to do so. I met him on one occasion, but I did not tell him my man would show him where the house w"as to be built. I said he might stop at my house. 1 first put ni} r milch cows on the land about three years ago. I ran 60 head there for a month or two. I had from four to eight milch cows there. I put six to seven horses there in 1862, where they have boon kept ever since. 1 don't know Mr. Fowler has taken up 10,000 acres. There are no boundaries to the run but the natural ones. I complained of Mr. Fowler ever since he has been there. I had a quarrel with Mr. Muntz, at Fowler's. I, was knocked down b\- him. J went to Christchurch in consequence. I did not induce Mr. Travers to commence this action in consequence of the assault. I reported to Mr. Travers before this action was commenced, but 1 don't remember the time. If Ido not recollect the ilates of the trespass, I remember nearly the time. My run would carry 600 cattle, and I had 70 to 80 head when the station was started. In March, 1S 1 54, we had 300. It would have carried more had Fowler not been using it. I turned his cattle away because I wanted the feed. I knew he was on my hind. I objected to his building the house before it was built. To Mr. Travcrs : I conversed with him and took a message to him from Mr. Richmond the land commissioner, that before building or going to any expense he was to find out where his county was. I frequently cautioned him that he was using Mr. Travers' land. This was plaintiff's case. Mr. Pitt, for defendant, said it was a case of disputed boundaries, which would be attended with considerable difficulty from the fact that the land had never been accurately examined, and that the plan made by Mr. Richmond, of which this was a i copy, was not correct. Mr. W. L. Fowler : I am a grazier at the Upper Waiauua. I made an application for 10,000 acres of land. I occupied my present land in April, 1863. I took 41 cattle with me and left them about a mile from the junction of the tributary to the Stanley, 11 I miles below Maling's pass, three miles to the east of my house. The feed was good. They worked a mile down the river. I saw Mr. Newcomb that morning. He told me to go to his house. He knew when 1 was going to build my house, because we talked it over, that a piece of green bush was the only place fit for a station. He made no objection to if, when I told him in November, 1862, that I was going to build there. When I inspected Mr. Travers's run, no one pointed out the boundaries. I conversed with Neweornb about them, who claimed to the terrace above the lake, and I claimed the other side. I look the range between the Waiauua and Stanley as the boundary. I commenced to build the house in November, 1863. Mr. Newcomb never gave me notice not to build. He told me Mr. Richmond had instructed him to impound my cattle. 1 told him to do as he liked. My cattle have been- on the land in, question to the number of from 14 to 25, but never more, except at mustering. The feed is nothing to brag about, ifc is tussock grass. As a rule my stock is at- the head of the Stanley. In March, 1864. I had 120 head. The lake separated them from Mr. Travers's country. The cattle get to Mr. Travers's land in another way. I have always considered the line of mountain as the eastern boundary. To Mr. Travers: You told me I was on your country. You did not offer to get a surveyor. 1 proposed to bring Mr. Ilandyside, and you were not willing. You told me you adhered to the boundaries in your license before I had completed my house. Mr. Pitt again contended that the plaintiff was not in possession by virtue of his depasturing license, as by the Act of 1863.

Mr. Travers could not consent to a nonsuit motion at this stage of the proceedings. His Honor said in the face of possession de facto, nothing but a superior possession could lurn a man out. Plantiff had a ri»ht against all the world, to the grass on the land, and the only answer that could be made to this was that defendant had a right against him. Till the license was revoked, the defendant must be treaied as a trespasser. A good cause of action had been proved, such, as was included in the declaration. Mr. Pitt said with this ruling:, it was simply a question of trespass and the amount of damages. He contended that no trespass had been proved, and the question of damages must fail. The evidence of the only man who had surveyed the land, was not conclusive as to the boundaries. His Honor said the evidence of the plan in the license must be regarded as conclusive. Mr. Travers said the law pointed out a means of settling questions of disputed boundaries. His Honor : The plaintiff claims to be in possession lawfully as against the defendant, and the latter has to prove his title. Mr. Pitt, contended that the evidence disclosed the fact that Mr. Travers was not in possession of the land on which the house was built before Mr. Fowler, ■who as against Mr. Travers had a perfect right to be there. The boundary -was fairly open to dispute-, and plaintiff had not shown that his had been crossed. If trespass was admitted the damages ought to be of the most trifling kind. Mr. Travers in reply said the object of the action was to vindicate his own title to the land, and to allow the defendant to set up a supeirior one, if he possessed it. Possession was claimed from the date of entering on the hind, and no attempt was made to show that defendant had any title to it. His Honor said it was not a question of title •which the jury had to try, but simply one of legal possession against the defendant unless he set up a better title. Excessive damages were not sought by the plaintiff, and the jury need not be very particular about them. | Verdict for plaintiff, damages 40s. Leave Avas given to Mr. Pitt to move for a nonsuit on the legal point previously raised. The Court adjourned sine oie.

Last evening the quarterly meeting of the Nelson Artisans and Mutual Improvement Association, was held in the Temperance Hall, Mr Haddow, the President, was in the chair. Mr John Graham, the Treasurer, read the financial statement, from which it appeared that after sill expenses were paid a balance of eightpence remained to tlie credit of the society. Mr W. Falkncr, the Secretary, stated the object of the association, which was to meet once a week for the purpose of reading, delivering essays, and promoting discussion on the matter introduced, an employment that tended to induce young men to make a good use of then* time, and fit them to act their part creditably in discharging the various duties to which they should be called in after life. The proceedings were agreeably diversified by song?, trios, quartettes, and choruses, as well as readings and recitations, in all of which the members who took part in them acquitted themselves to the satisfaction of the large company assembled. The members who engaged iv the various readings and recitations were Messrs Beihwaite. Bond, John and James Graham, Greig, and Joshua Sigley; the singing being sustained by Messrs Coo way, Falknev, Garrard, Gibson, John and James Graham, Greig, and Sigley; Mr Sigley presided at the pianoforte and harmonium, the former having been kindly lent *for the occasion by Mr Darby. The great diversity I of the eutt-rtainment, was its great recom- ! mendation, as from the variety of subjects treated of v lively and severe, humorous and pathetic nature, there was something to instruct and amuse all present, as was seen from the fact that the assembly was alternately pensive with the contemplation of some serious subject, or convulsed with merriment at the description of a ludicrous scene. An original essay on Labor and Loyalty, read by Mr Bond, a member of the association, was well received by the meeting. Towards the close of the proceedings his Honor the Superintendent addressed a few remarks of an encouraging nature to the young men of the Nelson Mutual Improvement Association, urgiog them to ms\ke a good use of the advantages aiforded them for the improvement of their mind^, and the qualifying them for the successful discharge of the great duties of life. Mr Ailken moved a vote of thanks to the members of the association for the interesting and instructive entertainment they had that eveuing furnished to their friends aud the public. Mr Hogg seconded the motion, which was carried by acclamation. It .was stated that the next meeting for the

entrance of new members and the election of office-bearers would take place on Wednesday next, at half-past seven o'clock, in the Infant Schoolroom, Hardy-street. The proceedings closed with the National Anthem. There were about 400 persons preseut. In the Resident Magistrate's Court, to-day, Mary Jtine Oswald complained against her husband for assaulting her on the 20th inst. The complainant has been iv, the hospital since that time, and now suffers from the assault. Mr. Barton the superintendent of the hospital, proved that a severe wound had been inflicted, and the woman's evidence was conclusive. The prisoner tried by crossexamination of the complainant, and the testimony of W. Brock aud T. R. Berry, to establish the fact that, he assaulted his wife because she was couducting herself improperly in the house of Baker, where the assault was committed. The Magistrate at first intended to send the case for trial, but on consideration resolved to deal summarily with it. He accordingly sentenced the prisoner to imprisoment, with hard labor, for two calen- < dar mouths iv Nelson gaol. William Brock was placed iv the dock, and charged with aiding in the assault, but in consequence of the feeble health of the complaiuant, he was remanded till Saturday. At a recent meeting of the Committee elected to carry out the sports of the approaching Regatta, the number was increased by the addition of the names of Messrs. W. Garrard and R. Scott. As the sports iv question are peculiarly adapted to the season of the year, it is to be hoped that the committee will endeavor to cause them to come off on a large scale, and that the public will assist iv promoting the success of so pleasing a festivity. In most of the sea ports of the colony, aquatic sports form a prominent feature in the amusements at Christmas tjme, but as few possess advantages equal to Nelsim iv the smoothness of its harbor, there is no reason why the regatta here should not be a great succers. A little spirit on the part of the committee and liberality on the part of the public are no doubt necessary, both of which we hope to see supplied to the extent they are required. The Wanganui Times says: — Mr. William Finnimore sold by auctiou last week several Patea laud orders for fifty acres each, aud town allotments of one acre each at £37 10s to £40 an allotment. This is the way in which our economical Government, by their treatment of the Military Settlers, compel the men to .abandon all idea of settling upon the land, and drive many of them from the colony iv disgust. The Wangauui Times says that MajorGeneral Chute has left Wanganui for Auckland. It is understood that the object for which the Governor requested his presence at Paten was so far from meeting the approval of the General that he expressed his opinion J in terms more soldier-like and straightforward than flattering or courteous, and took his depat ture without much ceremony. The Victorian Acclimatisation Society have announced their intention of presenting the Otago Society with a pure cashmere ram aud two ewes. Tamihana of Ivaipakopako, and a dozen or so of his followers, have arrived iv the neighbourhood of Tarauaki, for the purpose of submitting themselves to British authority. Two merino rams, rising four years old, have beeu imported from America by Messrs. Bates, Sise, & Co., of Dunedin, and sold to Mr. Harvey of Waikouaiti, at the rather stiff figure of £180. The W. E. Post says— The whole of the material 'required by Messrs. Beck and Carter for conducting water on to the Queen's Wharf, for the use of the shipping, arrived iv the Otago aud Raugitoio, and the piping is stored ready for use. The tunuelling is progressing rapidly, and as there 011I3' remains eighty feet of further excavatious to be made it is confidently anticipated that the whole work will be completed by the beginning of the New Year. By latest advices, we learn that superfine Canterbury flour barely reached £15 per ton, aud inferior lots sell for £13 and £14. Tho

i su pplyof grain is,also ; irrex'cess; of the'deinaaud ' and old prices are. hardly maintained. The. Otago Daily Times, of the,2oth,. says that the flour market' is -without life, and in, consequence of the cessation of shipments to the northern ports, safes to any extent cannot he made, and though prices have not materially given way, there is a tendency iv tliat direction. Chilian is quoted at £14 10s.; Califomian, £15; Adelaide, £17 to £17 10s. At Dnnedin on the 21st inst. Mr. Alfred Cleve, merchant, Hokitika, was committed for trial for a breach of the Fraudulent Trustees Act, iv the estate of Fargie. Bail was allowed. In Otago Mr. Yogel has formed a Ministry as follows: — Provincial Treasurer. Mr. Yogel ; Provincial Secretary and Secretary for Public Works, Mr. Mouat ; Provincial Solicitor, Mr. Maddock ; Without Office, Messrs. Mollison and OrbelL The annual meeting of the Southern Steara Navigation Company took place at Danediu on the 17th inst. The Directors, in their report, congratulated the shareholders on the comparatively successful operations of the year. The receipts amount to £14,325, and the expenditure £14,212 7s 2d. The new steamer Pareora is expected to arrive in two. months. The committee of the Drapers' Early Closing Association at Dunedin, suggest thafc the closiug Lour on Saturdays should be 8 o'clock. A large meeting has been held at Invercargill, at -which resolutions -were passed condemnatory of the proceedings of the Government, and expressing an opinion that there should be a new election. Of the Auckland Stock and Share Market, Mr. Reader Wood reports: — The share market lately has exhibited a good deal of unsteadiness owing to an attempt that haa been made on a rather considerable scale to"bear" the-^market. The operation was remarkable for its simplicity. It consisted in offering Bank of !N. Zealand shares everywhereand to everybody at £16, and when the offer, happened to be accepted some plausible excuse was sure to be raised. Amor.g the many rumours of similar instances the fallowing can be authenticated : — A few days ago, a definite offer of 160 shares at £16 was made, and as definitely accepted ; but on delivery being demanded shares could not be supplied. The effect of this has been not to lower the price of Bank shares, but to check sales. I have sold Bank of New Zealand shrres this week at £16 10s. From Victoria we learn that Mr Verdon has written to Mr Laucaster, a well-known gunmaker in England, asking him to send a competent person to Melbourne in order to convert the rifles in use by the volunteers into breech-loaders.