FARMERS IN COURT

Hawera Star, Volume LIV, 7 November 1935, Page 3

FARMERS IN COURT

DISPUTE OVER TWO HEIFERS A QUESTION OF IDENTIFICATION HEARING AT STRATFORD.

Mr \Y. H. Woodward, S.M., was engaged all yesterday afternoon in the Stratford Magistrate’s Court hearing a dispute between two Ngaere farmers concerning the ownership of two heifers. The plaintiff in the action was Horace E. Nowell (Mr P. Thomson) and the defendant Phillip O’Brien (Mr J. Hessell). The hearing was adjourned until to-day, after part of the plaintiff’s case had been heard.

Nowell claimed that the two heifers were on his property, and that on August 23 O'Brien claimed them as his own. Nowell permitted O’Brien to remove them. On August 29, as a result of enquiries from his previous sharemilkers, Nowell said lie ascertained that the cows were his own property and he demanded their return, which was refused. Ho claimed that O’Brien had wrongfully continued to withhold possession of the heifers and had converted to his own use a calf and the milk produced by the heifers. Plaintiff: had also incurred expense and loss of time as a result of the trouble. He therefore claimed the possession of the two heifers, special damages comprising the value of the calf os, value of milk £7 15s and general damages £lO. In outlining the case Mr Thomson said very serious allegations had been made by the defendant concerning a mutilation of brands. Plaintiff had been farming at Ngaere since 1913 and the defendant had been there almost as long. Stock belonging to one of the parties had frequently strayed on to the property of the other and there was a mutual arrangement between them concerning the removal of themBetween the two properties ran the Waingongoro River which at times was quite capable of carrying away stock.

EA 11MA11KED WITH KNIFE. When plaintiff’s sharemilker earmarked the calves it was done with a pen knife because Nowell had no registered earmark. In August O’Brien approached the sharemilker and said he believed two of his heifers were being milked there. He pointed out two animals and said they were his,* but the sharemilker had rightly refused to hand the animals over. O'Brien had said he could pick one of them out of a thousand, hut the next day when he examined the stock in the presence of plaintiff he passed this one by without comment and claimed another one in its place. Later, when O’Brien became insistent that the animals were his the plaintiff told him he could have them, as at that time he was considerably worried over liis domestic affairs. Counsel then detailed the steps subsequently taken by plaintiff and the sharemilker to prove the identity of the animals as belonging to Nowell. Formal demand had been made on O’Brien for the return of the animals and when this was refused he was told that proceedings would be instituted for their recovery. Horace E. Nowell, in evidence, stated that during the rainy season the river which marked the boundary be-

tween his property and that of defendant was capable of carrying away any stock. In February and March this year there were record floods in the river. Witness had fenced most of his boundary as .near the river as possible, but on O’Brien’s side there was little or no fencing. Since 1928 witness had employed sharemilkers who had charge of the. stock, although he (witness) also lived on the property. Witness had no registered earmark, but he had a registered brand (produced) which was officially recognised by the Stock Department, E‘e had never personally used the brand since 1928. His terms with liis : shammilkers had been 30 per cent, of milk and half the calves and half the pigs, although this latter was varied occasionally. It had been the custom to save about 30 calves each, year and these were marked in sonue way by the employee with a pen kruife on one Oar. The calves were all kept in a paddock near the shed. Mlien payment had been made for the calves the animals were branded by the eitaremilker and turned into a paddock near the river. At the end of the 1934 season witness had taken over 28 calves , from the sharemilker and had paid ot't a cheque toi the sha remilker for vthe amount due to lmn under an agreement. The: two heifers now in dispute and on O’Brien’s property, were two calves which had strayed from witness’ side of the river and he. claimed them as his property.

EREQUENT TRESPASSING

There was considerable traffic of; stock Detween the two farms on account of t-he river boundary, but there had always been an amicable agreement concerning their return. On August 21 witness and his sharemilker met O’Brien at witness’ cowshed and the party went round the .stock to select the animal O’Brien had claimed the day before to belong to him. However, although O’Brien had passed the heifer several times he had failed to recognise it in any way. O’Brien had then asked to be allowed to see the milkers and this was agreed to. When the party went to the paddock where the milkers were o'’Brien had no trouble in selecting the heifer he had picked out- the day before. Witness asked O’Brien what has brand was and on being told witness said .the was not satisfied and would telephone the stock inspector. O’Brien had persisted in .his statement that the animals were Ins and on refusing to hand them ovefi O’Brien had left the property in a bad temper. On the following clay a police sergeant, a constable, O’Brjftm and his wife cam© to the farm aircl selected the dry heifer with a V earmark and which was running with the) dry herd. This heifer, togethef with tlty milker, Were taken up to the milking yard. They looked for witness’ brrind, hut could find hone. The next morning the same party, to which Mr Harris, the stock inspector, had been added, arrived at the farm and all the heifers were rounded up. ; Another examination was made for brands, hut none could be .discovered. The .reason lie had handed the Wafers ovoi* was that he was ill at the /time and had domestic worries. Rather than have any further trouble oi* d oubt aboinb (the matter at that particular three he tokl O’Brien to take/ them. Immediately lie had handed ; the heifers l , over, he had been interrogated by tlhe police for two hours. | Subsequently he had referred the mflrtter to his bi*rther-in-

law, Mr A. J. Corrigan, and with him ihad examined the two heifers in the presence of O’Brien on the latter’s property. Mr Corrigan had fitted -a marker belonging to O’Brien into the earmarks and had said the marks had not corresponded with the marker. O’Brien had got annoyed and had told -Corrigan to get off the place and mipd his own business. Since then witness had handed the whole thing over to Corrigan, who had taken complete charge of the case.

RELIED ON SHAREMILKER. v

Cross-examined, witness said he relied on his sharemilker for identification of his stock as he had more to do with the stock than witness had. The two lieirers would have been Branded between January 20 and February 20, J 934, the animals then hieing about six months old. Witness denied that he had made any offer ,to hand over one heifer to O’Brien on the first, day he earn© out- to. make the inspection. He had asked O’Brien why he had not come for the heifers before as the animals had been running near the boundary. This was when O’Brien had sa,id he had missed the heifers for six or seven months. Witness had not tolcl O’Brien to take the heifers and call the police case off, but he admitted having expressed regret that O'Brien ltad gone to the police in the matter. Hte had no par punch in Ips possession and all tlho animals were earmarked with a knife. Uliarles S. Davidson, slmreunlker qn plaintiff’s farm from 1928 to 1934, stated in evidence that during his last season he had reared 27 or 28 calves. His instructions regarding fife' calves from the best cows had been to mark an ear with a pocket knife, which had always been done. The branding of the calves had always been done by- "Witness. Had it been possible in the race the animals were branded on the rump, but otherwise they were branded anywhere on the body. For the branded animals he was paid 12s 6d each At the end of the season. The calves wefe then put into other paddocks, being changed at intervals. There had always been frequent trespassing of stock between the two farms, but ho restriction had been placed on their return by either plaintiff or defendant. ’ 1, Witness detailed the interview with O’Brien when the brand was discovered on the ribs of one heifer. O’Brien had said, “You have been branding my cattle,” but witness did not shy anything more as nil he had been aslicd to do was to identify the animals. . • ; Cross-examined, -witness sard he nbt taken O’Brien with him when- aji inspection of the stock was made. ,ft was not until the brand had been, discovered that O’Brien had been told ;t)f the inspection. Witness was definite that [be had branded the heifers in dispuße. ~ ' pi Arthur N. Tocker, sharemilker for plaintiff from June, 1934, to June. 1935, said that .when he took over dis duties there Were* 28 yearling heifers on the farm. lie gave similar evidence to the previous .witness concerting the marking ofxthe calves and. the subsequent branding. .ty