THE RURU CASE

Grey River Argus, 25 June 1925, Page 8

THE RURU CASE

DAMAGES FOR PLA-NTIFF. £2lB AWARDED. HIS HONOI’R’S DECISION. The ruse in which James Ryan, farmer of Ruru, sued Mrs Isabella Chamberlain, also of Ruru, for £390, for alleged wrongful mustering of plaintiff’s cattle, wrongful conversion of same to defendant’s own use, tres. pass etc., was continued yesterday in the Supremo Court, before His Hanoi Mr Justice Alpers. The case for the plaintiff had been concluded the previous night. Mr Joyce, for the defence, submitted that the whole of tin* plaintiff’s case appeared to be founded on the allegation that a number of his stock was stolen, and that the fence surrounding his property had been broken in several places. Plaintiff, counsel stated, was not the owner of the propertv in question, merely holding a possessionary title to the land, and could be put off at any time. For several years past tin* ground had been overrun by wi 1 ' had nothing to do with the death of any of the beasts on the land. The death had been caused by eating fern. The land, counsel stated, had fenced in, and no provision was made to allow the animals to get out. Tim breaks in the fences were caused by bulls. George Mallinson, settler of Kopara, was then called. He stated that he had lived in that locality for the past fifty years. He did a lot of mustering and was possessed of four dogs. People were waiting for him to do sonic mustering for them now. Witness related the arrangements that were made between Mrs Chamberlain and him. self regarding the mustering of the former’s cattle in April last. On the first day of the mustering four of Mrs

Chamberlain’s. sons were present. Witness was informed there were four bullocks belonging to Airs Ch robe ria in on Ryan’s land. He worked only two days. A number of Ryan’s cattle had got out during the mustering, but they were all driven back. A portion of the fence had to be removed to allow the cattle out, and this was afterwards nailed up again. Witness was sure his dogs had not been annoying any of the animals. Ryan’s cat tie consisted of small heifers. Previous to' the muster, witness had seen a number of Ryan’s cattle outside •};<» !• uimL aries. About four years ago Mr Parfitt had lost fourteen cattle. I’m cause of death being fern.eating. Witness was quite sure that Ryan’s cattle had died of eating fern. AH iln? neigh, hours in that district had cattle wandering loose. Plaintiff’s fence was very bad, and it "-m. possible to ride a horse through the creeks und-month it in places To Air McCarthy: Externally, there was nothing to denote that an animal had died from eating fern. The dead animals he had seen had been dead some weeks. To His Honour: Witness had never seen any of Ryan’s cattle uniii the time he saw six or seven on the road. The Chamberlain boys had informed witness tn vdum the oatth belonged. Robert Joseph Chamberlain, son of the defendant, gave evidence of a similar nature. He stated that only recently he had seen a number of Ryan’s cattle out on the roa Witj ness had commenced mustering with i Air Mallinson in May. I John Robert Chamberlain, brother |of last witness, stated that to his I knowledge, Mr Ryan had been io. possession of the property sixteen months. Previous to the mustering witness had fiequently seen some of Mr Ryan'< cattle wandering. He was one of those who assisted Air Mallinson in mustering. Some of Air Ryan’s cattle were joined during the muster. Several of the residents had dogs. Witness had only seen one dead animal. His impression was that it had died from eat:.ng fern. It had been dead about two months. To Air McCarthy: Two dogs were used in the mustering. Witness had never heard of Air Ryan losing any stock prior to last February. The mustering took place about the middle of Al arch. His Honour: I think you are a bit. out there. Air Alallinson said the mustering took plate ft I Easter time. Witness said it took place on Good Friday. Tn answer to a further question by His Honor, witness stated that ho drew the inference that the dead cow had died from eating ferns, as it was lying amidst fern. Edison Chamberlain, Emil Chum, berlain, and Johi,i Scott also gave evidence. The last named stated that he had bought a cow from Mr Ryan for £5. The evidence of Gilbert Connor, yardman of Ruru, was to the effect that witness had seen seven heifers, belonging to Air Ryan straying on Billy-Goat Flat. Witness recognised the cattlq by their earmarks. Henry Weenink, retired drover (now residing in Greymouth) stated that he had forty-one years’ experience. Wit. ness had used dogs, but had not known them to be . ferocious. To his knowledge a dog had never killed a beast. Nor did he recollect any cattle dying from the effects of dog.worrying. Witness had seen throe of Air Ryan s heifers. He would not say they had died through being worried k.y dogs. This closed the case for the defence. JUDGMENT FOR PLAINTIFF. In summing up his Honour held that

the claim for trespass had been sustained. and had been proved by ihe admission of defendant’s witnesses In February of last year plaintiff had given defendant leave to take off her own cattle from his property. That license expired in March, 1924. When a license of that sort were granted his Honour held the licensee must keep strictly within the terms of it. By not doing so, the defendant was making herself a trespasser. Therefore the onus rested on defendant to prove that no damage was done to plaintiff’s property. The defence stated that the animals which were taken as decoys were put back, and the fences restored, but his Honor contended that the plaintiff had throughout acted moderately and reasonably. His Honour was very much impressed by the simplicity and moderation of plaintiff. He might have exaggerated a little on the excellent condition of his fences, but that was natural <••.- i with the most honest men, when Limy came to Court. On many points plaintiff was supported by other witnesses. Some time, plaintiff said, was spent by him in effecting rena ? s Io his fence before putting the heifers in. On the other hand a number of witnesses for the defence said the fences wore in a bad condition, but none cor. roborated the absurd statement of it be witness Mallinson, that a horse could be ridden through the creeks tin 4 »r_ neath the fences. Continuiig his Donor said that the heifrw; were on plaintiff’s property for rhe b *st pa:? of a year. None of them had died, or strayed or been lost. Then suddenly all the animals got away about April last. A number died, and the rest disappeared mysteriously, with the exception of three. Chamberlains v,« re neighbours, and if Ryan’s cattle did get out through the bad fences ii was incredible that they did not see th? cattle except on one occasion. .VI the witnesses for the defen«“» were emphatic on this point, and one (the witness Scott) oven fixed the date. Assuming that certain of plaintiff’s cattle did get out on this date, it was the only occasion that any were seen on the road. His Honor therefore drew the inference that his fences w we cattle.proof, and that the cattle were kept in. The evidence of the Chamberlain boys was not clear as to when the muster took place. Some said Alarch, and others April, whereas the muster actually took place at Easter time. Proceeding, his Honour stated that the onus was on plaintiff to prove that damage had been done to his property by defendant trespassing thereon. Plaintiff could only supply the Court with indirect evidence of this nature, but at times this evidence was very valuable, and whatever doubt there might bo must he given to plaintiff. His Honour drew the conclusion that plaintiff lost his cattle through the default of defendant, who was a trespasser on her own admission, and on whom the onus was thus thrown. The plaintiff’s case was not as clear as it might have boon, a number of the witnesses proving themselves dull. The fact that they were simple country folk, not used to being in a witness-box hindered the Court forming an opinion as to their integrity and honesty. In giving judgment for plaintiff His Honour said that as Airs Chamberlain did not trespass in any vicious spirit, damages must be awarded on the level of the actual damage done. He awarded. plaintiff the sum of £216, the price of twcnty.seven heifers, assessing the value at £S per head. The damage caused by defendant trespassing, His Honour assessed at £2, and gave his decision on that count accordingly—a total of £2lB. Costs, disbursements and witnesses’ expenses were awarded in the middle scale. Any of the plaintiff’s cattle which might be found in the future are to be retained by Mrs Chamberlain. His Honour left for Hokitika in the afternoon.