MAGISTRATE'S COURT.

North Otago Times, Volume CIII, Issue 13656, 25 August 1916, Page 4

MAGISTRATE'S COURT.

REMOVAL OF QUARRT ROCK. In the Magistrate's Court on Weduci: Jay, before Mr J. fi, Bartholopiew. Sophia McDonald, quarry proprietress, Totaia, proceeded against S. H. -Shale for the removal'from her property of 'ornamental rock valued at'£3o, Mr V. W. Onglcy appeared for plaintiff and Mr A. C. Hanlon (Dun. i'(lin) for defendant. Sophia Me Donald, Totaia, suhl '(she knew defendant, who was an adjoining fanner, Witness wns/hayiug rock work done, at her place. .-Defendant saw the work done, and expressed satisfaction therewith. 'Witness told defendant that.' lie should'-arrange to have his .garden, done the same way. Defendant said it' won id take about fifty .or sixty loads of soil. Witness did not promise any rock, as witness required all the rock for her own work. Later on; she was told that he had obtained some of her rock. Witness expressed her annoyance and Mid that he would have to pay for it. Defendant said witness' sister had promised the rock. Witness thought defendant' had taken thirty loads-.of valuable rock, Witness, required' the rock, and it could not be replaced. Witnesshad sold rocks not of the best qua/liry.iat £1 per load,but the best j'ocjtwould not be sold .for £2 aloaij.', The pic li of;, the rock on her property: was! taken, Witness said ■ that she had. previously, taken' proceedings'* against defendant with regard .to lime. Cross-examined by Mi: HauJpti, wif-' ness said she did' not know' the. stone' was being taken. She lived, a matter of h mile or two miles from .the: roek.'Witness first beard from her-...brother about, the : removal of,the rock; •'• Witness', jirother did not tell her, that he" hail.len.t' defemjaittw ,ero.\ybar 'ai'iif he was.pleased Jo.'get, rid.,of tlic}rock',, Tire,'rock w-as taken last Augus.t' Wit' ness' had not developed a" uhfricmljjness with /defendant because of the" railway matter. 'Witness'-swore that- it. vhis not "on account, of 'that 'e.ireiVm-' .stance,that 'shejiiadc' lip 'he-i: mind, -to test' him with. respect to the rock.' Witness would , not believe that anyone would give away such rocks as hers were as a gift. Witness had refused a sale of rock to the Waitaki County Council. V M. McDonald, sister of the former witness said she did not promise rock to defendant. Witness judged that thirty loads were taken. The rock was practically invaluable as the rock was wanted. ,1. Holmes, Totaia, said he was working at defendant's',place last' August.. Witness understood that defendant was. dissatisfied with the rock,'being used, and witness suggested that defendant, should procure some rock from plaintiff. Defendant accordingly saw plaintiff's brother,, and, witness assisted to tart rock for two or three days. Sometimes there was one dray and sometimes two drays. ;The rocks were the best for the purpose that witness had seen. Cross-examined by Mr Hanlon: The drays were, filled each time. James McDonald, foreman at his sister's lime kilns, remembered defendant approaching him and/stating that he was going to take rock from the paddock.' This had been promised, he Mid, by witness' sister. l ' ' Defendant stated •that the- blocks he had were iwt suitable. He did take note of the carting done. He judged that, forty pr fifty yards were taken.«'.- .. Cross-examined by Mr Hanlon: Wit-, ness .did not tell Iris sister till .later of the carting of the .rock. His sister expressed dissatisfaction-at the occurrence. Witness never spoke to defendant about his action in taking tho ll'oek' without permission. Witness was not entirely friendly' with defendant. The stone on his sister's property was lime stone, whilst that on defendant's property was building stone; George McDonald, brother of the previous witness, said he saw defendant carting rock from -his sister's place. He would take probably thirty to forty loads, Defendant, stated to witness that he did not like taking the rock for nothing. i Witness was annoyed at the stone being promised, Witness lent a crowbar to defendant. Witness never gave permission- to anyone to take the rock. . . .:

Mrs .1, Macpherson and Henry Siuiuis also gave evidence,

This concluded the evidence for plaintiff.

,: Sydney Shale said that on several occasions plaintiff advised him to have his place laid out and make it in rockeries, At a concert later witness was asked if he had started the work, Plaintiff said that witness could.obtain stone from her brother. Witness saw Mr James McDonald and told him of the proinise-'of his sister. Mr McDonald said there was plenty of stone, and to take as much as he required. Next 'day Mr George McDonald was- apprised of. the matter ■by witness, .and Mr McDonald said that he could.take the stone so long as holes were not made in the paddock. 'Witness-remarked tint it was a pity to take-the rock for nothing. McDonald said that witness was welcome to the rock.. Twelve or possibly fourteen loads of rock were taken from plaintiff's property, Witness was then told by plaintiff that she was sorry that the rocks had been taken, and she said in it joking manlier that' she would charge witness ill per-load. ' Witness later asked Miss McDonald if she contradicted the assertion that witness could 'have the rock. She did, and said that she simply fold witness he tould take noil. Witness.heard'no more of •the matter until receutlv.

Arthur William Robbins said that plaintiff had told him that if. defendant wanted rock he could obtain it from plaintiff's property. When it was derided to go on with the contract witness informed plaintiff. Some of the rock for the work was obtained from defendant 's own property, and then rock was taken from plaintiff's'place. From ten to fifteen loads of rock were carted. At a subsequent date plaiutiff stated that she diil not know defendant would.take so much, and that had she known they were of sm-li-fine quality defendant would have had none of tiiem. In-the. estimation of witness the cominercinl' value of the rocks on the land was not more than that of nibble. The value, of the rock in the garden was the value' of the labour and transit required to place lliem in position. To the vendor stone smdi as he required wim worth (is. There were millions, of tons of such rock as was on plaintiff's property within s ''v r eight, miles of Oaniarii. • A, ,I, (irave said he had seen defendant's rockery. Witness was making a rockery at his own residenec . The limestone was costing him nothing/. If. was all over the district. The stone is, practically the same as defendant's. If was necessary to .'choose the rock. '• .' Ciossexnmined by Mr On'gley: .'[lie value of the si one depended on ■ its proximity to the rockery: Theodore Russell, . Oauiam, said lie had given away rock, He would not/ think of rhargiug £| „ | O ( U |, David Smith. Awimiosi snid he did not object to persons taking stone from his pnrperly. I.le was glad lo gel rid of it. " '. ■.' (Wexaiiiiiieil by Mr Qngley; Witness liiid.no siding, lie could not say what value the .proximity of n siding would add to the rock. ' ■ The Magistrate said that Ihu contest Mugd upon the. determination oi the

fi>ct.,aS'to, : whether,authority was given jo remove the. rock." Certain portions of tl)e !; evidence.given...liad been llatly coutr#%d. Plaintiff was emphatic as to I'h?W statements, V His Worship reviewed the evidence '.tendered in detail. The cartingof the rock was done openly to: the 'knowledge of plaintiff. Plaintiff V account could not be taken before' that of defendant. .Plaintiff would, therefore, be non-suited, costs being fixed at k 10s (id,