THE AERO A GRAVEL CASE.

New Zealand Herald, Volume XXXI, Issue 9581, 4 August 1894, Page 5

THE AERO A GRAVEL CASE.

[BY TEI.EORAPH. —OWN CORRESPONDENTS. i '; - Thames, Friday ; 'At a sitting of the Magistrate's Court to-day, Mr. H. Eyre Kenny, S.M., gave judgment in the case of Marsh v. Maxwell, claim for damages for alleged trespass and removal of ; gravel. The alleged offence was committed at Paeroa, and the case has been before the Court on several occasions of late. Evidence having been adduced at Paeroa, whilst the argument of counsel (Mr. Miller for plaintiff, and Mr. Clendou for defendant) was heard at the Thames. The adjudication was exceedingly lengthy, His Worship having gone into the case most minutely. The history of the land in question was first discussed, and it was shown that the property in question, known as the Rewa Rewa Block, No. 1, was acquired by the plaintiff on the 7th of July, 1882, and .ho still has the freehold in which his lease merged. Between the 17th and 29th of May last the defendant who had a contract from the Ohinemuri Council, dug up and removed stone and gravel on several occasions from a certain sand-bank in the Ohinemuri River, which is neither navigable nor tidal at tlntraarticular spot. This sand-bank was in existence on the day from which the Crown grant took effect, and it was not then severed by a channel of the Ohinemuri River from the land granted to Allom, the original holder of the land, but it was on the contrary then fixed, annexed to, and incorporated with the river bankontheplaintiffsßide^friver. There is reason to believe that the said bank has received accretions and grown in size since the 21st September, 1878. Tea-tree is now growing on the edge of the same bank close, to the.river. The river only comes over the sandbank in high freshes, and it then overflows the plaintiff's alluvial land too. The defendants- were warned by the plaintiff to ■desist from removing the gravel and- stone, sKJid that plaintiff erected a fence to prevent them ; but: they still persisted, and one of them, Peter Maxwell, used provoking and in- 1 sulting words to plaintiff, and the defendants, it would seem, threw down the fence. It isnot possible to estimate accurately the quantity of stone and gravel removed, but it certainly was not less than fifty cart-loads, and it may J have been as much as one hundred. Each cart-load averaged one and a-half yards, and i the price or value sixpence per yard. The defendant made an excavation of me size. The sand bank is valuable to the plaintiff (inter alia) on account of the protection and : support it affords to his alluvial land from the force of the river at the bend c' the river against his side of the Ohinemuri at this place. If the sand bank was wholly removed the plaintiff's alluvial lar d would be in danger of being washi'.'l away. The excavation already made by the defendants has removed an appreciable amount of protection and support from the plaintiff's land. From 1879 the plaintiff's cows have run over the land t*nd grazed on the sand bank, he planter . willow tree on the sand bank three or four years ago. Except by the defendants, the plaintiff had never been disturbed in the possession of the sand bank, and the defendants did not set up a title or prove justification at the trial. After having disposed of these few facts. His Worship dealt with the objections, etc., and generally summarising the judgment, the Stipendiary Magistrate held that it had been ■ proved that the sand bank from which the gravel was taken was in existence on the 21st September, 1878, _ the day on which the Crown grant was issued under which the plaintiff had begun to operate, and that ib was then connected and attached to plaintiff's land, ' He held that the trespass had been proved, and also actual occupation ot the sand bank.by the plaintiff;, and, in addition to this, that the Crown grant, which purported to convey the Rewarewa No. 1 block (as the same was bounded by the Ohinemuri river), transferred to him the land to the middle of the river, including the sand . bank. Following u| the case, Lord v. the Commisioner _ol Sydney, 12, Moore, P. 0., as to the question of jurisdiction raised by Mr. Clendon for defendant, His Worship ruled that the plaintiff having proved possession, and tht defendants acting upon title, and being ad mittedly mere wrong-doers, the question <>. title did not arise. Secondly, that if it did, it only arose incidentally. Taking everything into consideration, the Court fixed damages at £10. for which judgment must be entered up with costs, £7 14s 3d. ; '