THE OBSTRUCTION OF ROADS.

Press, Volume LIX, Issue 11286, 29 May 1902, Page 6

THE OBSTRUCTION OF ROADS.

SPREADING OF GORSE AND PLANTS

LIABILITY OF LANDOWNERS,

At the Supreme Court yesterday Mr Justice Dennistoh heard argument in the appeal against the judgment of Jackson Keddell. Stipendiary Magistrate, in the case C. E. BremneT v. H. W. Dunn. Mr Kippenbergjer appeared for the appellant. The respondent was not represented. It appeared that Major Keddell, the. Stipendiary Magistrate at Oamaru, had dismissed a case brought by the Waimate County Council by its engineer, C. E. Bremner, against H. W. Dimn, who had disobeyed an order, under sub-section 2 of section 135 of the Public Works Act, 1894, directing the respondent to remove all obstructions to the traffic on the road abutting on the respondent's land, arising from the growth, of gorse. The fact. proved were that gorse was growing upon the respondent's land, and on the road in question, and the appellant, m giving evidence in the lower court, gave it as his opinion that tho gorse had .spread from the respondent's land, and the respondent gave no evidence nor made any suggestion to the contrary. The Magistrate held that-it must be proven that the gorse had actually spread from the respondent's land, relying on a decision by ex-Chief Justice Prendergasb (Barnes v Nixon, 17 New Zealand Law Reports, p. 96). | Mr Kippenberger argued that the question was whether it was necessary to prove that the gorse had spread from the respondent's land, or whether it was sufficient to prove j that the obstruction existed, and consequently that the reepondent should have obeyed the order for its removal. He submitted that on the evidence given in the lower court the Magistrate should have convicted. The Magistrate had not put it as a fact found, that the obstruction existed by the growth of gorse, but the informant (the present appellant), in his evidence, had stated that, in his opinion, the gorse on the road had spread from the gorse growing on the defendant's land. In other words, the Magistrate expected the informant to prove that any particular gorse had spread from the defendant's land. If that were a justified there could never be a conviction under the Act. The only ccromon sense inference from the facts was that gorse growing alongside the road had spread from the respondent's land to the road. He took it that the opinion really required of the Court was whether there was any reasonable, inference to draw other t bun that the gorse had spread from the respondent's land. Th. ' Magistrate was bound to draw that inference. His Honour: There is no other reasonable inference. Mr-Kippenberger agreed, and said that it had not been suggested that the gprse had spread from a fence on the other side of the-road, whilst it had been proven that gorse existed on the respondent's land. He, therefore, submitted that even though the gorse was not shown to have spread from the respondent's land, nevertheless he was within the order issued, and ought to have been convicted. He quoted Barnes against Nixon (17 New Zealand Law Reports, p. 95), m which the ex-Chief Justice had held that it must be proven that the .gorse had actually spread from the land of" the person ordered to remove the obstruction caused to the road by its presence. His Honour said, that the Magistrate had not indicated the grounds upon which he had based his decision in the case, and it might be necessary for him (his Honour) to ascertain from him what those grounds were. His Honour said he held a very strong opinion on the subject as to the "interpretation of the section, but out of resptct to the judgment of tlie ex-Chief Justice, he was not prepared to decide the matter without further consideration, and consequently he would hold judgment over.