WEDNESDAY, NOVEMBER 16.

Hawke's Bay Herald, Volume 3, Issue 113, 19 November 1859, Page 3

WEDNESDAY, NOVEMBER 16.

WoRGAN V. HAEDING. Before J. Curling, Esq., R.M., and James Anderson, Esq., J.P. The plaintiff, Mr. G. Worgan, of Rua Taniwha, sought to recover from the defendant, Mr. J. Harding, of Waipukurau, the sum of £101, being one-half the cost of making or erecting a certain fence dividing the lands of the said parties, — the said J. Harding having neglected or refused to assist in making or completing such dividing fence after a due requisition in writing had been given to him, pursuant to an Act of the Province of Wellington, Sess. I, No. 13. George Worgan, being sworn, states, — "About February last, the defendant and myself came to a mutual agreement that we would take our respective purchases in one block. Mr. Harding's purchases to be the south-east or lower portion of the block, and our purchases to be the north-west or upper portion of the block. Mr. Tiffen was applied to as chief Land Commissioner, to lav off the boundaries, and he laid off the dividing boundary. I don't know whether it was in the end of February or early in March I called upon Mr. Harding to assist in making the dividing fence. It was by a letter, and also notice in the 'Hawke's Bay Herald.'" (Remarks by the Court. — Mr.Worgan's Solicitor here calls upon the defendant to produce the letter. The defendant denies having received any such letter, but acknowledges having received notice to produce it.) " I have not a copy of that letter by me, nor am I sure whether I ever made a copy or not, nor do I know the date of it. The advertisement in the paper was put in immediately afterwards. — I do not remember that Mr. Harding took any notice of this. I then proceeded at once to make the fence. I made it partly by contract, and partly atthe rate of 65. 6 d. per rod. The first irile was by contract, — the subsequent portion was at 65. 6 d. per rod. The whole length of the fence I believe to be 424 rods. It is a four-railed totara fence. The fence commences from the river, and runs in a line due south and north to a creek within a few yards of the hills." (Mr. Worgan's bill to Mr. Harding for the costs of the fence is handed into Court.) " One hundred and one pounds (£101) is the amount that we sue the defendant for, being a half of the cost of the fence. The fence, was erected on the line of division- made out by Mr. Skeet, the Surveyor, which was laid out expressly for the fence. I applied, to Mr. Harding for his share of the payment, which he refused. (Mr.' Harding's repiy.fdated 26th October, is handed into Court.) The property is contiguous all along this fence. It is possible for cattle and sheep to get round each end of it, (the fence). Where it ends our properties still continue. to extend. The fencse* goes across the, plain." • "(liemarks by the Court.-— The paper. Sated 7th of. May, with the notice dated 16th of April,, is handed into' Court.)

" I don't know that Mr. Harding was making any preparations for assisting in making the fence. The land that this fence divides is our own properties "by purchase. I don't remember that Mr. Harding gave any excuse for not assisting." Henry S. Tiffen, being sworn, states, — " I think it was in February that Mr. Worgan handed in an agreement, a copy of which is produced in Court, an agreement for Mr. Worgan and Mr. Harding for consolidating their respective purchases into two distinct blocks. I scaled off the respective quantities, and drrected Mr. Skeet to lay down the line." Rohert Mixer Skeet, being sworn, states, — " In the month of March 1 laid down the divisional line according to the directions of Mr. Tiffen. The line commences from the hanks of the Waipawa River, crosses the plains to the Kahakuru Creek, which is the boundary between Mr. Fannin's property, and Messrs. Worgan and Harding. Ido not consider the Waipawa to be a boundary sufficient to prevent sheep or cattle crossing, nor is the creek (Kahakuru) a sufficient boundary. The divisional line, as the crow flies, is about two miles and a quarter." By defendant. — " I remember being in your house in company with. Mr. Boorman, and reading the agreement about consolidating the purchases. I remember your stating your doubtfulness of the correctness of the line I had laid down." ' John Harding, being sworn, states, — "At the time of the agreement for consolidating our respective blocks, there was a verbal agreement as to where the fencing should commence, and in the written agreement in Court that was made on the 2nd of February, there is a clause for us mutually to erect a dividing fence to run between our freeholds. I immediately set about preparing for the work, and I hand in an agreement, made on the 30th day of March, between me and two men, to split 1000 posts and 4000 rails, expressly for this fence. They began immediately, and it has all been split. They finished about the end of June, and during my absence, Mrs. Harding made an agreement with two other men to split another mile of fencing, and to put it up, at the rate of £80 per mile. The others were to get £1 per hundred for splitting posts and rails." (Mr. Harding here enters into an explanation, describing in what way he has been prevented from getting certain timber that he had cut from the bush, and of his having made an application in consequence to the Superintendent, and hands in a letter, dated the 6th of July, in which the Superintendent directs Mr. Skeet, by laying off a road, to give him access to his property.) " I only received the Superintendent's letter this morning, and I hand in the envelope to prove so. It is my intention as soon as I possibly can, to go on with the fence,, which requires still something about a mile and a quarter. With regard to the notice that Mr. Worgan mentions, I positively deny ever having received such or its having been left at my house, or else I should have got it. The fence that Mr. Worgan has erected, in its present state is useless till it is completed. I saw the notice in the paper within a fortnight after its appearance there. About two months ago I saw the fence which Mr. Worgan was then erecting, and I mean to say that the charges which Mr. Worgan makes, are exorbitant. I have paid the men for what is done, and in consequence of not being able to go on with the contract, I have been obliged to make the^i some compensation. I have paid somewhere about £100 already for this fencing, that is, for the timber and splitting." This completing the evidence, the Court expressed its concurrence in some observations made by Mr. Wilson, counsel for the defence, upon the extensive powers given by the Act. At the same time, the Court must be very strict in seeing that its requirements, as regards sufficient notice, being given to the othei party interested, had been fully fulfilled. The magistrates did not consider that sufficient notice had been proved ; the service of the letter was uncertain. Nor did they conceive that a claim could be made until the fence was complete. The case was accordingly dismissed, the chairman remarking that had it not .thus "fallen to the ground, he should have felt himself impelled, from the difficulties presenting themselves,* to refer tha case to Auckland. ■,• •' :, 'i