REMOVING TIMBER FROM GROWN LANDS.

New Zealand Herald, Volume XXXI, Issue 9694, 14 December 1894, Page 6

REMOVING TIMBER FROM GROWN LANDS.

CROWN LANDS COMMISSIONER V. DARROW. CLAIM,, £2500. The hearing of the action brought by the Commissioner of Crown Lands against James Darrow to recover £2500, value of 5,000,000 feet of kauri timber alleged to have been removed from certain Crown lands in the Ohinemuri district, was continued yesterday before His Honor Mr. Justice Ccnolly and a special jury of twelve. Mr. Button and Mr. Tole appeared for the plaintiff, and Mr, Cooper and Mr. Dufaur for the defeuce.

Mr. Button said tbat although they had been unable to efleet a settlement since the adjournment on the previous day, they would be able to materially shorten the evidence.

ANOTHER CONTRACTOR'S EVIDENCE. J

Oscar Brown, bush contractor, was examined by Mr. Tole. He was acquainted with the Huia bush since 1882, when he was working on Fagan's contract, on what was known as the " Wires Bush," from the telegraph wires going through it. Witness was working at the opposite side of the Tairua River. There was then no timber cut on the portion in dispute coloured brown. It had not been touched. Witness worked in the Huia in 1889, for Stephen Fisher, who was then contracting for Mr. Darrow to cut and deliver timber. Work had been going on for about four months before witness went there in February, 1889. He worked there until the end of April, the same year, and when he left Fisher was still going on with the work. When he began to work, the bush saanty and four dams were up, and he believed another was put up after he left, but this he did not know for certain. There was also some shooting, and several rollingroads, where the timber had been taken out. Whilst working there, witness saw Mr. Darrow on the ground on several occasions. He usually came on the ground to inspect the work and see how it was proceeding. Some timber was measured by Jamea Keid, who did all the measuring while witness was there. Mr. Darrow was nob presenb at all the measurements, but he was occasionally there. Fisher, the contractor, paid witness by order on Mr. Darrow, and it was cashed by Mr. Corbettat Hikutaia. His Honor : How many wore working for Fisher at that time ?

Witness: I think about seven or eight). The witness was not cross-examined.

QUANTITY AND VALUE OF THE TIMBER.

James Reid, busk contractor and manager, examined by Mr. Button, said he had been acquainted with the Hikutaia districb nine or ten years, and knew the head waters of the Huia Creek, which he pointed out on the plan. He measured timber on the portion marked brown on the plan (the disputed ground). He was bush manager at the timber for the Kauri Company, and measured the timber as it was sold to the Kauri Company by Mr. Darrow. Witness, as far as he remembered, measured over 3,000,000 feet as having come from thab patch. The number of logs went over 2000. Wibness was acting for the Kauri .Timber Company, and any logs which were too bad he did nob take, and all he passed, the 2000 he spoke of, were good mercantile timber.

His Honor: If wo bad this witness yesterday he would have saved a good deal of time. You had three or four witnesses guessing: at the quantity. Examination resumed : The timber rejected was of no value to the Timber Company, but he could not say how many he rejected. The logs averaged about 1650 foet each, so far as he could remember. He always heard Darrow say the price he was receiving for the timber from the company was 3s 6d per hundred. The company was to take delivery at the junction of the Waipaheke and Hikutaia Creeks. He estimated it would cost Mr. Darrow to fell and deliver the tirnbsr at that junction 2s, or somewhere near it, per hundred. The bush was a very handy bush to get timber out. His estimate of the worth of the bush standing was 8d or 9d a hundred, and at that Mr. Darrow would have made a large profit. The logs witness measured did not comprise the whole of the timber. There was some scattered timber standing after he was done. Witness's clerk, Steadman, went up to measure once or twice when witness was away, bub what he measured was included in the 2000 odd logs witness had spoken of. There was some timber in the dams which witness did not measure. It was used in their construction, and was good commercial timber. The quantity would be about 150,000 feet. The shoots were made of rikas, etc. Witness saw some timber marked II along the Waipaheke Creek. There were between 600 and 7CO trees, so far as witness could remember.

At this stage Mr. Button said he need not pursue this evidence in consequence of what Mr. Cooper told him. In cross-examination witnoss said he measured the timber all over the land marked brown, and about half way between ib and the junction. There was cutting going on on the banks of the Waipakeke Creek at the same time, but not by Mr. Darrow. The company was cutting it. Witness was prepared to say so far as he could remember the whole of the timber which he measured came out of the bush marked brown on the plan. Some of the timber which he measured from the Huia was marked H. He saw some trees with H on them included in the number of trees he spoke of, and he was prepared to say they came from that Huia bush, for that was where he saw them. He could not say how many were marked H—he only saw a few. Sometimes the brand would be where the cub would afterwards come.

Mr. Button pointed out th»t the condition required that the brand should be below the cut, so that they might be afterwards identified.

Cross examination resumed : He did nob say ib would cosb 2s a hundred to deliver the timber at the junction, be said near that.

His Honor said the jury had nothing to do with Mr. Darrow's profits, what they had to deal with was the value of the standing timber.

Examination continued : There had been a fire in the bush while cutting was going on, but how it occurred he could not say. It destroyed a lot of standing timber. Re-examined : It did nob destroy the 2000 logs, but it scorched some of them,

THE WARDEN'S CONDITIONS OP SALE.

Mr. Burgess was recalled by Mr. Button, and said the conditions upon which the receipts were issued gave permission to cub 300 trees from Hikutaia block, No. 2, and the conditions were endorsed on the receipts. The trees were to be cut within six months after purchase, and the mark on the trees was to be made below the cut.

In answer to Mr. Cooper, witness said no action had ever been taken to resume possession after six months. If an application had been made at the time to have the block changed to Hikutaia Mo. 3, or Whangaraata, it would have been done. Mr. Button said he intended to raise the question of whether defendant had the right to cut timber even in Hikutaia No. 2, after the six months had expired without a renewal.

His Honor. What was the object of limiting the time ? Witness : One was because trees had been sold in the past, and allowed to stand, the marks had become obliterated, and other people had bought them, and thus confusion arose. Another was, it would prevent other trees being cut instead, and these allowed to stand, so that in case of dispute the parties might be able to claim those as the trees they had paid for. If an extension of time wag granted it would be shown on the block and receipt. Mr. Button said Mr. Cooper informed him they did not intend to set up any extension of time. ICVIDKNCE AS TO CUTTING. » Robert Gibb, bush contractor, remembered Stephen Fisher cutting timber in the Huia. It might have been for Mr. Darrow, and he might have been cutting one year or two years. Witness was not near the bush in 1893. The last time he was there was in 1886, long before the bush was cut, but in 1893 Mr. Darrow asked him to trip the dam, that is, open the floodgates of the dam when it was full. He did nor. go up, as he did not need to go, there not being sufficient rain. He saw the bush in 1886, before it was touched. It was a nice little bush, bub he could nob »ay if it was easy to get timber out, as he had not travelled down the creeks. | Witness was nob cross-examined.

DEFENDANT CONNECTED WITH THE WOBK. Charles Alley, storekeeper, Hikutaia, examined by Mr. Tole, said he had been a buehman, and was acquainted with the Huia and Hikutaia bush. He remembered Stephen FisHer cutting timber in the Huia about 1888. Witness was supplying him with stores. He had a party of men with him ; it might be eight, ten, or twelve, sometimes more, sometimes less. Mr. Fisher paid for the stores by orders on Mr. Darrow, who paid them. Witness had worked for Mr. Darrow, but not in that bush, in the old bush. He had been trimming in the Huia creek. Trimming meant jacking logs into the river, after drives or freshes.- It was Mr. Darrow who asked him to do this. The trimming was in connection with the supply from the new bush in the Huia creek, in 1889, when he was supplying stores for the new bush. Witness was asked to do this, as Mr. Darrow wanted Fisher's men to keep on at the bush work. Witness had been in the bush since, and found ib all cleared. Mr. Cooper did not cross-examine. THE BOOKS BURNT. John Ryan, who had been clerk to the contractor, Stephen Fisher, said he started with him in January, 1889, and kept the accounts of the measurements of the timber cut in the Huia bush. The books were burned in 1891, in an accidental fire. He could nob from memory say what quantity of timber was cub there.

Mr. Cooper did nob quostion the witness. This closed plaintiffs case.

THE DEFENCE : LIABILITY ADMITTED. Mr. Cooper then opened the case for the defence. He proposed to call evidence ; but the question for the jury would be reduced to a question of damages, and the main questions which they had to consider were : What was the quantity of timber with which the defendant should be charged, and what was itu value ? and for the purpose of showing these he should call evidence. There was no doubb Mr. Darrow did cub some timber on Crown lands, and was entitled to pay its value. It was necessary for the Crown to lay the positions clearly bofore them; but he should not dwell on the particular portions of the land or the surveys, for they found on examining the plans that they cannot extend Binney's lease to this brown patch. In 1883, when the receipts were issued from the Warden's otfice, Mr. Brown was connected with Mr. Darrow, and he applied through' Mr. Casey to the Warden, and purchased 300 trees at 25s each. They were marked H, and were in Hikutaia. They were marked in this way before the application was made for them, and it would be shown that the trees were in this brown patch. He would be able to satisfy the jury that these 300 trees, for which receipts were issued on the2Bth and 30fch June, 1883, were on this particular patch, and not on Waipaheke. They remained standing till 1889, when Darrow entered on the bush. What number of trees had been cub they could nob say, bub they could account for 367, and estimates had been given showing the number to be from 300 to 400. Assuming bhen that Mr. Darrow had the right to cut 300 trees, he exceeded that number per haps by 100 trees. In estimating the quantity taken from the patch, Mr. Darrow oughb bo geb credib for 300 trees, and in estimating the balance he thought the estimates of the Crown would be materially reduced by those which he should adduce. His Honor would nodoubt direct them that it was a rule ot law that the spoiler should pay the highest value, but he submitted that the jury should assess the value at a reasonable amount, and if they had evidence to indicate the value, they should be guided by it. The value had been shown to be 25s a tree, which was somewhat under 9d per hundred. Mr. Reid had estimated the number of trees at 700, bub ib would be for the jury to say if there were not very much less. They would produce evidence to show that there was only about million feet in the bush. He felt sure that in their verdict, which he admitted they must find againsb the defendant, they wouldassess only fair and reasonable values. He regretted that 12 men should have been baken from their business to listen to dry details and assess damages. He should call a number of witnesses, bub would make their evidence as short as he could consistent with his duty to his client. Mr. Cooper then proceeded to indicate the evidence he meant to adduce.

THE DEFENDANT'S STATEMENT. James Darrow, timber merchant, residing at the Thames, was examined by Mr. Cooper. He had been connected with tho timber industry for over 20 years. He knew that in 18S3 the right to cut timber was purchased from the Warden, and receipts had been put in of 300 trees purchased by Mr. Brown, who paid for them, but they were bought on behalf of witness. He could not, of his own knowledge, say whether the trees were marked before they were bought, but they were marked, and were in the water shed of the Huia, the brown patch on the plan. He commenced to work the bush in 18S8. Ho could not give an estimate of the number of trees in tne bush, it was Mr. Fisher who looked after this bush and had the contract, and he believed it was Fisher and his brother, who had marked the trees, and he could give more definite information than himself, who was only occasionally in tho bush, perhaps once a week. At that time he was also for a short time cutting timber with Mr. Fagan on the Waipaheke. His estimate was that about 2,000,000 feet of timber came out of that bush, and he thought 6d por hundred was a big price for it. Mr. Cooper: Was 259 a tree a fair price ! Witness: We could not get them any cheaper. Mr. Button : That is the price fixed by the regulations. Examination continued: When they bought trees they only marked the big ones, none under nine feet girth.

TRANSACTION WITH MR. BROWN. Cross-examined by Mr. Button: The business relationship between witness and Mr. Brown was that Mr. Brown *had more money than him, and made an advance of money. He bought the trees for hiin. He was nob a partner. Witness had nob seen the receipts until a few days ago. Mr. Brown had them, and witness did not got them from him, as he had every confidence in Mr. Brown, but he got a copy of them from the Warden's office in October last, for the purposes of this action, and Mr. Brown thoughb he had lost his old receipts. Witness had other permits from the Warden, 800 trees in all, including those 300, but he know nothing of the conditions. Mr. Brown and Mr. Casey* took out the receipts, not hiui, and he knew nothing of the conditions as he never bought a tree and never paid for one in the Warden's office, and Mr. Brown did not tell him they were issued subject to any conditions. Mr. Button : How long did you expect these trees would be allowed to stand ?

Witness: I thought that, like a horse, the trees were my property when I paid for them. I knew nothing of these lands being Crown lands. I know that the land was in the goldfield. Mr. Button: You expected that the timber might stand as long as you liked ? Witness : Yes ; unless they were burnt down.

Mr. Button : Now, had Mr. Reid or you the best opportunity of judging the quantity of timber on the block. Witness: I don't think I ever was with Mr. Reid when he was measuring any timber.

His Honor pointed out that that was nob an answer to the question. Mr. Button : Whom did Mr. B.eid represent ? Witness: The Kauri Timber Company, and I paid the contractors on Mr. Reid's measurements.

Mr. Button : You say 6d a hundred is a fair price ? Witness: Yes, and I will give you my reasons.

Mr. Button : What did you pay Fisher ? Witness: One shilling and ninepence a hundred, and the dams I built myself. Mr. Button : What did the dams cosb? Witness : One cost £225, the others about £100 each. Mr. Button : Were they of any use to the Government now ? Witness : I do nob think so. Re-examinod : The reason why I estimated the timber at 6d is on account of having to erect so many dams for so little timber. Thero were some logs still in the creek, about 100. His Honor: How much did you pay Fichsr ? , Witness : 1 could not say. His Honor: Do you mean to say you kept no books in respect of this contract? Witness; No, none that would show this. His Honor It is most extraordinary. You had a contract for la 9d a hundred,

and you can't tell how much you paid. That would settle this matter. Witness : I can't say the exact amount. His Honor : You can't say exactly ; can you say nearly. Witness: Itfmight be somewhere between £2000 and £3000, somewhere like £3000, but that may not be correct. Mr. Button said that £3000 would account for three millions and a-half.

THE PURCHASE OF THE TREESMaurice Casey, contractor, said in 1883 he was at the Thames, and applied at the Warden's office for timber for Mr. Darrow, and obtained the receiptsof the 28th and 30th of June. The alterations in the receipts were made by Mr. Kenrick, but he did not initial them. The reason of the alteration was that after being to Hikutaia, to mark 1 the trees, he went to the office. Mr. Kenrick was not there at first, but afterwards when he returned it was for the first time discovered that No. 2 was on the blocks, and he struck it out as witnest did not know if the trees were on that block, and they recognised it all as Hikutaia. He was not present when the trees were marked, bub he directed the three Fishers from an elevation on the left bank.

THE CONTRACTOR'S EVIDENCE,

Stephen Fisher, bush contractor, said he had been working for Mr. Darrow five or six years ago, on a contract to fall timber and run it into the creek. The price, he thought, was Is 6d and 2s hundred, but he could not say how much at one price and how much at the other. He must have received over £2000 for the timber felled. He remembered marking trees 10 or 11 years ago under direction of Mr. Casey on the water shed of the Huia. He could not say how many trees he cut. He did other work for Mr. Darrow, but could not give an idea what he received, as his books were destroyed by fire. He could give no estimate of the value of the timber standing ab the time he commenced to cut it. His contract did not require him to drive the timber so far as the junction, and it had to be brought the remainder of the distance by Mr. Darrow. In cross-examination witness said he had been to Mr. McAlister's office. Mr. McAlister asked him what evidence he could give for the purposes of the Crown in this case, and witness absolutely refused to tell him anything. He did not remember having a conversation with Mr. Darrow that morning about the case. He was outside the court when Mr. Darrow was giving evidence. Mr. Darrow spoke to him, he admitted, after he came out of the Courb.

His Honor warned the witness to be careful. He pretonded to speak about what occurred six or seven years ago, and now he could not say what took place an hour ago. Ho thought he was doing Mr. Darrow good, but he was doing him harm. In further examination, witness said Mr. Darrow did not speak to him about bhe amount he paid him. When Mr. Darrow lefb the court they walked up the road together, bub all he said in connection with the case was thab he did nob bhink witness would be called till after dinner. Thab was all that was said about this case. He did not know whether Mr. Darrow had other trees marked H in the Hikutaia district. He estimated thab in bhe virgin bush bofore he commenced to cut there would be about 2,000,000 feet of timber. He saw M»jor Lusk on ihe ground a few months ago, and he pressed witness very hard to make an estimate of the quantity of timber on the block when he began to cut, but he did not tell him he estimated there were over 3,000,000 feet. Mr. Reid made the measurements and witness was paid on these measuremenb and was satisfied to take them.

Re-examined : He marked no timber with the letter H outside the head waters of the Huia.

Daniel Fisher, bush contractor, gave evidence as to having marked the trees in conjunction with his brother between 11 and 12 years ago. To the best of his knowledge they marked something over 300. The timber was on the Huia watershed. His brother had a contract to take out the timber, and witness went up one night to go to work, but he was carried out next day, having met with' an accident, and he was not there long enough in daylight to see if it was the same place where they marked the trees. In the accident he had his knee smashed, and had not been there since. That was very nearly six years ago. In cross-examination witness said he marked no other trees for Darrow, Brown, or Casey in this district. He did not recollect how many they marked, but it was something over 300. Their instructions from Casey were to mark all they could find on tho block that were worth marking. His Honor: Mr. Cooper you said you intended to call evidence to show that there was only 2,000,000 feet of timber in this block. Of course you may do so, but I may intimate that I shall direct the jury that Reid made actual measurements which were accepted by both parties, and Darrow paid tho contractor on them. It was very unlikely that he, acting for the company, would make an over estimate.

Mr. Button : And that was borne out by the amount which Mr. Darrow admibs having paid. His Honor said he only wished bo inbimate this now, as it might save calling a number of witnesses. The matter was now brought within a. very narrow compass. Mr. Cooper asked for five minutes in which to consult Mr. Dufaurand the defendant, and this was granted. On returning to Court, Mr. Cooper said he had only three witnesses, but he should limit their examination to the value of the timber.

ESTIMATES OF VALUE. Robert George Bramley, chief bush inspector for the Kauri Timber Company, and on whose valuation all the contracts were let, said he had been over the block marked on the map at the Huia a week or two ago to make an inspection for bhe purposes of this action. His estimate of what the value of the standing timber in 1888 and 1889, taking the locality into consideration, was about 6d a hundred. Timber had nob improved in value since then, ib had gone down. He did nob bhink the timber would have fetched more that 6d if offered for sale in 1888 and 1889.

The witness was cross-examined as to a block of Timber at Boat Harbour purchased by the company for £501, an estimate of a little over a shilling a hundred, but he said the timber was easier got at, being on the sea coast. The Government's estimate of the quantity of timber on the block was 9700 feet. His own estimate was million feet.

Chas. Nisbit, bush contractor, was called. He could nob give an opinion as to the value of tho timber standing on the bush marked brown in 1889, nor could he estimate what ib would cost to deliver 3,000,000 feet at the junction of the Waipaheke and Hikutaia creeks.

Joseph Mclsaac, bush contractor, who had examined the locality on December 3, said he could not form an estimate what the value of the timber growing there would be in 1889. His object in going there was to counb the stumps. He could not form an estimate what it would coat per hundred to deliver the timber at the junction. In cross-examination witness said if the patch only contained two trees to the acre it would barely be worth working. His Honor : Your witnesses, Mr. Button, make it only 3£ trees to the acre. Mr. Cooper pub in the Provincial Gazette of Auckland, 1875, vol. 24. Also New Zealand Gazette, Ist October, 1875, both containing the regulations empowering the Warden to sell kauri trees.

This closed the case. THE ISSUES.

His Honor said that it might be convenient to fix the questions now which would be submitted to the jury. Mr. Cooper said the only question was the amount of damages. His Honor said there might be a question if those 300 trees were included in this block. Mr. Button laid he should nob admit that, but he should not contest it. After discussion between the Court and counsel, the issues were fixed as follow :— What quantity of timber was taken by defendant out of this block and converted? What was the value per 100 feet ? What was the number of trees converted? Were the 300 trees referred to in the Warden's permits included amongsb those trees ? What was the value per tree 1 Mr. Cooper Bttid his friend and himself were prepared to let the case go to the jury on the one issue what was the amount of damages to which the plaintiff was entitled, without any -other issues. THE SUMMING UP. Mr. Cooper then addressed the jury on the evidence, and Mr. Button replied. His Honor summed up the case. He relied ou the evideuce of Mr. Reid, and

said the jury must not in any case exceed £1125 value of three million feet of timber. The estimates of the 300 trees were £480 and £375, and it was for the jury to consider whether they should deduqb either of these sums or any sum between from the £1125, but they must not deduct more than £480. •- - f ■ ' The jury retired at a-quarter to five o'clock. At a quarter past five the foreman returned and saidtbe jury wanted to know whether it was necessary the jury should be unanimous in their v6rdict.

His Honor replied that ifc was necessary until they had been three hours in consultation, after which they could report to him that there was no likelihood of their agraeiug. At present they must be unanimous. VKRBICT £1000 DAMAGES.

Ten minutes later the jury returned to Court with a verdict for plaintiff for £1000 without any deduction. Mr. Button moved for judgment and asked His Honor to certify for costs of the special jury, also for second counsel and for a second day. His Honor gave judgment for £1000 and allowed for second counsel and for second day's costs, £15 15s, and certified for costs of special jury, costs to be on the highest scale. The Court then adjourned till half-past nine o'clock this morning.