SUPREME COURT.

Lake Wakatip Mail, Issue 784, 19 November 1873, Page 1 (Supplement)

SUPREME COURT.

Thursday, Novembeh6. (Before his Honor Mr Justice Chapman and a Special Jury.) WHITE v. M'KXLLAB. The hearing of this case was resumed taJohn M'Kellar, one of the defendants, ns the first witness called. He deposed to hiring seen the defendants in August ISG6, when ha (witness) offered to take eitur end of the ran. They said they preferred haras the lake end. The river Bend was thai fixea upon as the boundary, and it was always roaiected by defendants as such. In the year IS7O, witness had occasion to write a letter to plaintiffs complaining that they had not kept the boundary. No reply was made to that comwmnwatwin. They (defendants) had lost money on the land during the laxt five years, hus* they first went there, stock had depreciated in value, and tenper cent, of the capitld put in had been lost. -The Court: It appesrs to me, from what you say, that the country is not worth fighting about—He (witnesa) continued to ay thai he would not like to give LI,OOO for the land II question. He knew defendants had given Low the country for L 5 a-yesr to keen plaintiffs ant of it He had all along respected the boundaiy line agreed upon.—To the Juiy: Plaintiffs pi up the wool -shed on the southern part of the run. They (defendants) were never asked to pay for the sheds, and they never offend to df »«. > « -

Cuthbert Cowan deposed that he was appointed an arbitrator along with Messrs Strode and Bees. He recollected Taylor White having been examined, and took notes of his evidence. In reply to a question, he (Taylor White) said he understood they had purchased 25.000 acres. These, witness could say from' memory, were the identical words. The arbitrators sat for several days in succession. When the evidence closed on both sides, the arbitrators remained to consult as to their decision. Mr Strode knew there were points upon which he (witness) and Mr Rees did not agree, and he rose and went to the fire to warm himself while they discussed these points. After discussion, they found that they still disagreed upon these points. They were material points. While they were discussing the points at which they were at variance, he (witness) was of opinion that Mr Strode took no part in the discussion.—To the Court: He was present, however, during the whole time —Examination continued : As they could not agree, he (witness) said he would be willing to abide by Mr Strode s decision on the main points. He was aware of the fact that the decision had to be signed by two of the arbitrators. Mr Rees was to remain in town to join Mr Strode in the awara. It was arranged that witness should meet the other arbitrators in Dunedin on the 21st July. His reason for not attending the meeting fixed for an earlier day, was that sufficient notice

had not been given to him. . In cross-examina-tion, the witness said that he could not attend the meeting fixed by the arbitrators hi consequence of his own business affairs. He had made arrangements to be in Dunedin on the 21st July. Tuesday, November 11. Mr Smith addressed this jury on behalf of defetdfnts. He contended that the evidence went to show that plaintiffs and defendants 1 were joint owners of the land in dispute in virtue of the transfer from Hamilton. Whatever the equitable rights of the parties might be, that was the only fair construction the jury could put on their legal rights. The Court: Prima facie they became so in ■virtue of the license. Mr Smith : And were tenants in common by virtue of the transfer of the run to them The Court: It is just a question whether the occupation of a run under license amounts to tenancy at aIL Mr Smith continued to say that, whatever interest the devising license conferred upon the holders, that interest was held by the parUes jointly as tenants in common. What the defendants now claimed was that a fair division of the run should be made. They were indifferent as to which part _ they took. Defendants were all along willing that an amicable arrangement of boundaries should be made; jfcut overtures of that nature were declined by the plaintiffs. One tenant could not exclude his co-tenant from the common property. He could not take upon himself to say you will not come here, you .must go to another part of the property; any more than he could turn him out of the property altogether. In the year 1866 defendants went to a portion of the run with their cattle, which at that time they found to be entirely unoccupied. Leaving their men in charge of the cattle they rode over to plaintiffs on the other side of the river and informed them that they had come to exercise their right of joint ownership and proposed to come to an amicable arrangement, to be acted upon until a final settlement of their dispute had takep place. White's statement in evidence was that they did not agree to that proposal, but that on the contrary they protested against it. The defendants, on the other hand, state that either then or immediately afterwards they agreed to observe the river as a mutual boundaiy, pending the decision of their rights. That was merely oath against oath, but in corroboration of defendants' version the letter of 27 th September. 1870, was quoted, in which defendants complained that plaintiffs had violated the agreement made as to boundaries. No reply was made to that letter, although it was shown that it had been received by plaintiffs. Counsel argued that that silence implied admission of i the agreement. The use (counsel) made of that temporary arrangement was that it entirely negatives the allegation that defendants committed the excess in ownership imputed to them. As to the question of damages, defendants' calculations were based upon an estimate of what they could have earned had the run been fully stocked. Supposing the question of damages to be entertained at all, they (the jury) would have to form an estimate as to the plaintiffs ability to stock the run fully. They would have to form an opinion as to the capital plaintiffs could command for that purpose. The only fair estimate they could make was the ▼alue the grass of that portion of the run would be worth : in other words, what rent was likely to have been obtained for it. Counsel then went over the issues submitted to the jury, explaining and commenting upon each of them in turn. ■

Wednesday, November 12. The Judge proceeded to sum up this morning. He said: The action arose out of an alleged trespass upon certain lands claimed by plaintiffs. The history of the case was briefly this : The land# in dispute were originally discovered by Mr David M'Kellar, one of the defendants. At that time but little was known of the part of the country in which they were situated. With the intention of making application for it, Mr M'Kellar prepared a sketch plan which was produced in evidence. Eventually, however, the land was applied for by Hamilton Brothers, and the sketch in question was attached to their application. Messrs Hamilton's application was granted, and they subsequently entered into possession. At this time nothing whatever was known about boundaries, the settlement of these being left to be determined by the further action of the Land Board. The Hamiltons subsequently sold part of their application to one Owen, and Owen sold the portion of the run in dispute to plaintiffs. That was the foundation of their (plaintiffs') rights. Afterwards Hamilton sold the remaining portion of the land to one of the M'Kellars, aad through him the land came into the possession of defendants. In the year 1866 when Hamilton was about to leave the Colony, the parties appeared before the Waste Land Board for the panose of getting the original license split up into two, with a view to each party get ing a license for his own portion of the land. In consequence, however, of the action of the Board, the original license was transferred jointly to pln.inf.iffn and defendants. Prima facie, this constituted them joint owners in the laiyl. Some sort of adjustment of boundaries took place in the year 1864, which plaintiffs in their evidence said Hamilton himself always respected. While the license issued by the Board in the joint names of the parties ex facie constituted them joint owners, that presumption was capable of being explained, or even contradicted by parol in other evidence. In a deed of mortgage, for example, which had by mistake been framed as a deed of purchase, the Court of this Colony lately admitted extraneous evidence to shew the real nature of the deed, and upon that evidence what purported to be an absolute sale was set aside, and the property restored to the mortgagee upon payment of the principal and interest numerous cases could be cited in which verbal evidence was admitted in contradiction of the tenor of the written instrument. The evidence given by Mr Cutten, late Commissions of Crown Lands, was valuable, as tending to show the prcumstances under which the tranfer took place. That evidence placed a very material alteration upon the whole aspect of the ctw It might have been a rule of the Waste lifted Board to issue the license in the wayitwas done, or it might have been dune merely by the arbitrary will of Mr Cutten himself. The license was undoubtedly issued in the form prescribed by the Board, so that if this license had been a contract, it would still be capable of being contradicted by parol evidence. There was no coloring whatever for the assumption that plaintiffs and defendants were joint possessors of the run. The real question at iaiue then was, " Were the plaintiffs in lawful of that portion of the land upon Which the trespass took place ?" Having deter- ' m lned that point, they next came to the question of trespass itself. It was clear, even upon the assumption of the parties being jointly m possession, that the one occupier could not disI- ' possess the other. The nature of trespasses , wu*eit mentioned and explained. One might entefe won the4and» of another for a justifiable K 7 et th*t might constitute a tree-

piss. Many cases of this kind were brought uefore courts for the purpose merely of trying a right. Of course the damages awarded in cases of that kind were merely nominal. Allusion was next made to the hostile meeting which took place between the parties, at which defendants are alleged to have driven away the sheep belonging to plaintiffs. The evidence as to what occurred at that meeting was somewhat conflicting. The jury, however, were directed to find for the plaintiffs, even although they were satisfied that the sheep had been driven away by the plaintiffs themselves: provided always they were satisfied that in driving them away, plaintiffs did so to prevent greater injury being sustained at the hands of I estimating the amount of damages— provided always the finding was for plaintiffs —they (the jury) were further directed that contingent profits resulting from the increased application of capital could not be taken into account. On the other hand, it had been alleged by the defendants that the land in dispute was of a nature to entail loss upon plaintiffs, had they been allowed possession of it. That being of the nature of a contingent loss, it was equally incompetent for them to take it into consideration. The jury retired at 1.30 p.m., and at nve o'clock returned a verdict for the plaintiffs on all the issues, assessing the damages virtually at L8.71116s 4d.