MAGISTRATE'S COURT.

Hawera & Normanby Star, Volume LVII, 24 May 1910, Page 6

MAGISTRATE'S COURT.

HAWERA, MAY 23.

(Before Mr Kenrick, S.M.)

PUBLIC TRUSTEE v. A. AND H.

BIRCHALL

The hearing of the partially heard defended case, Public Trustee (Mr Welsh) v^ A. and H. Birchall (Mr Sellar), claim £60 for damages for alleged breaches of a lease, was continued in the. Hawera Magistrate's Court on Monday. The defendant's counter-claimed from the Public Trustee and J. and G. Hatcher for the recovery of £30, on account of removal of a cowshed whereby plaintiffs (Messrs Birchall) suffered loss and damage. W. Goodland, farmer, of Normanby, stated that he had inspected the 7£ acres of the land in question on Salburday last. "Witness saw that the land had been ploughed, but there was not a veabige of crop on it. Could not positively say whether a permanent pasture had been laid down — probably 'L had been, but there was no evidence of it on Saturday. There was a little grass on the land. The 7£ acres, however, was in a very rough' state and it would be purely a waste to grass the land in its present condition. The 12 acres were not as rough as the I\. There was some native grass on it, also cocksfoot and clover, which would come up as the result of the breaking up of the land. Witness could not say if the lantl had been laid down in English pasture. To make a good pasture of both areas the land would require to be broken up 'and- seed ** afrfesh. About 291bs of seed to the acre 'would make's?' very good pasture. Witness usually sowed 301bs to the acre. It would cost about- £2 per acre to re-sow, the land. Witness also inspected some of the drains on the land. Witness quoted figures which he estimated as to' dost of cleaning the various drains, totalling £5 '9s 6d. Referring to the cowshed witness said he would value it for .removal at £6. It would costb about £1 to remove it. , . Under cross-examination by Mr'Sellar witness considered the land was fairly good land — better than second and third class land, but was not first class. The lend did not bear any signs of having ■ been -trodden over by catde any more* than, any other land j it bore signs, however, of having been mismanaged.- <j)ould not say by whom the land was mismanaged, but it was apparently quite recently. P. McNeil gave evidence of having cut the whole of the crop on the 194 acres, which crop was partly barley and partly oats. There was iv grain on the land when witness cut the crop. Ine land was practically growing weeds, because it had Apparently % hot been too veil farmed. To witness' knowledge two crops of turnips and three crops of K rain had been taken off the (\ acres, not all in Mr Birchall's time. . D Clarke said he had occupied the land in question for about 18 years. Ihe 19 acres was a native' clearing, and there was nothing but light scrub on the land. Witness saw the land in question recently. Witness agreed with the evidence given by Mr Goodland regarding the state of the land. . T Shearer gave evidence of having stacked the timber, from which the cowshed was built, on the land lately occupied by the Birchalls. The timber referred to came from the previous wit T ness. The persons who built the shed, Messrs Ellman and Findlay, got a, small load of timber, which was used for the floorii.g. Witness thought the cowshed was valued at about £5 for removal. "Witness corroborated generally tne evidence given by Mr Goodla-nd. M. Rodgers deposed to having removed the cowshed about 17 or 38 days after the lease, held by defendants, was up. Witness \\a& not received any notice from anyone not to remove it. For the defence, Mr Sellar said that the lease- was the ordinary class of dairying lease and the land the ordinary class of dairying land to. be met with in this district. Counsel did not propose to set up that the defendants were model farmers, but he did propose to show that they had carried out all that was reasonably required of them in the lease with pernaps one exception — that the defendants did not sow the 7£ acres as early as they should have done. The whole of the claim (£6O), counsel would show, was very much exaggerated. ...,.,.

D. J. Hughes, Manaia, stated that he had visited the defendant's farm on April 13, and one day last week. The 7£ acres was newly broken up land, and was quite as good as he expected to see for the class of country. It had a lot of grass, mostly couch. Couch mostly predominated in this particular class of land. Assuming that 291b of seed per acre were sown, witness would say that that would be about two-thirds of what would be required. Witness would put down a lot of Italian rye to combat the couch. Witness thought that the grass that was there was sown by the defendants. The 12£ acres was slightly better land than the 7£ acres. Assuming that the land required re-sowing, ■witness thought that roughly it would cost about 30s per acre. After reading the lease and seeing the land in question witness did not think it would be necessary to re-sow it. Witness made a very careful inspection of the drains, and considered that in the summer time the cost for cleaning would run into about one shilling a chain. If the drain had been cleared out the water ■would still be there because there was no proper outlet for them. The culverts were practically as good as when tliey were put up. The claim of £2 for them witness thought was fair. The boxthorn fence was a good farmer s fence, beine: stock-proof. To burn the boxthorn, wTiat was lying about, the cost would be from 10s to 12s. The cate was a good one. The fence, which.

had been removed from the 12-acre area, was apparently a temporary one. Witness did not see the building which was on the property. To Mr Welsh: Considered that 40 to 501b of seed per acre would be a fair sowing, not 301b as stated by Mr "Goodland. For the type of land the land was sown in good permanent English pasture. He had no hesitation in saying that the land was sown with the quantity of seed as prescribed in the lease. H. Birchall, Kapuni, one of the defendants in the action, said that when, they (defendants) took over the property in August, 1906, they ploughed up 7. i acres and sowed it down in turnips, with manure. That crop was eaten off and the same area was put down in oats about September, 1907. After the crop 'had been eaten off it was allowed to mature. Next year the area was sown in oats. Prior to giving up possession of the lease defendants sowed the 7£ acres in the grass as stipulated by the lease. Defendants took considerable trouble to sow down the land satisfactorily. Subsequent to the defendants giving up possession of the lease witness saw from 40 to 50 head of cattle on the 7£ acres, and he remarked to a brother that there would not be a very good grass if cattle were allowed on the land. Referring to the 12J acres, witness said that first it was ploughed for turnips. Later en a portion was put down m barley and another portion in oats. Grass was sown down about the same time. The amount of grass sown was 291ba to the acre. The seed came away well. There was a good pasture on this particular area when witness ' gave up possession of the lease. In the autumn, prior to giving up possession, defendants had put cattle on the 12} acres, and r.o doubt the grass would have been better had the cattle not been allowed on the land. The twelve acres was the be.st portion of the farm. The drains were merely "ditches," being about 18 inches wide and 2 feet in depth. The drains were not cleaned • out, and in the summer would cost from Is to Is 6d to do this. i The water * would not run even if the drains had been cleaned, because there •was not a sufficient outlet for them, which was in an adjoining property. The culverts were left in fair order by I defendants. Witness cut the boxthorn I fence,, which was a very heavy one. It ! was not trimmed every year, and wii> ! ness did not think the plaintiffs had suffered any loss as the result. Some of the boxthorn, left lying about, was burnt. About 12s would cover the cost of burning, and to repair the fence on the Glenn road the whole of the work would cost somewhere near £1. The gate was a fairly good one, allowing for reasonable wear. At this stage the Court adjourned until 10 o'clock to-day.