BOUNDARY FENCING CASE. WAREPA DEACONS' COURT V. DONALD MUNRO. (FROM OUR OWN CORRESPONDENT.)

Otago Witness, Issue 2299, 24 March 1898, Page 27

BOUNDARY FENCING CASE. WAREPA DEACONS' COURT V. DONALD MUNRO. (FROM OUR OWN CORRESPONDENT.)

The above case, which has dragged its weary length over a period of two months, was fettled 3ast week at Balclutha by the stipendiary magistrate (Mr Hawkins) giving judgment for defendant with full costs. Considerable interest was taken in the caee locally and in the surrounding districts on account of the status of the plaintiffs and the unusual spectacle of an ecclesiastical body going to law with a matter which might hava been settled by simple arbitration, and from the fact that the evidence tendered by the Deacons' Court on both occasions on which they appeared Tjsfore the magistrate was flatly contradicted by the defendant's witnesses. Tbe claim was for £& 12s lOd, half cost of part of boundary fence between the mansa glebe and the dtfendant's farm. At the first case, heard on January 14, Mr Stewart appeared for plaintiffs and Mr D. Reid (Milton) for defendant. George Smith, sen., Rocklands, Warepa, deposed that he had recommended a new fence to be erected. He was appointed inspector by the Deacons' Court, and a new fence was erected. He inspected tbe fence from time to time, and waa careful with his inspection, as he knew Munro was going to object. The price was 14s per chain. He pasaed the fencs when finished. It was a good workmanlike job. Tbe wires were all tight when the fence wa3 passed in March 1897, but in consequence of a strainer having risen through another fence being strained to it the wiies were restrained in December last. In course of erection of fence told Munro the fence waa not to his liking, but also said he would make the contractors finish it properly. John Wright, jun., clerk of Deacon's Court, said .the fence was a first-class job according to specifications. George Smith, jun., son of the inspector, and a deacon, said the fence waa a good fence— posts properly rammed and wires strained. Would nave passed the fence for himself. Donald Munro, defendant, inspected the fence the day before with James Chiistie (Toiro) and Sinclair Wright (Balclutha). There was a sod of fen old sod fence left from end to emlr-in some places two sods. The gorse was also left except ni two places. The posts were not firm — never had been firm— nor the wires tight. As soon as -.he fence was made according to specification? upon him he was willing to pay. He was villing to drive his Worship out to see the_ fence o satisfy himself When Wright came with tbe account he (Wright) admitted the fence was not v.ji to notice served. The pobts could not be ■ Sin in the giound, because the old sod fencs had not been cleared away. James < 'hristie, Keithmore, Toiro, h^d examined the ftnee the previous day at defendant's lequest. Found posts slack, wires slack. It was no fence at all. The posts were from 9ft 2in to 20ft 4in apart when he measured them and the old sod wall was not levelled down. In tbe hollows the posts were not properly keyed down. The posts were sunk between Ihe two old sods, and it wss impossible to get them firm in that position all the depth they were in the ground. In some cases the, posts could not be more than 6in in the solid ground. Some of the wire 3 were so slack that a half hitch, could almost be pat ou them. Had superintended the erection of a considerable amount of fencing ar.d would not have passed such a fence. Sinclair Wright, agent, Balclutha, said he would r.ot care about the fence for a boundary fence. Tbe material was good but the workmanship bad. His Worship said the fence had evidently not been erected in accordance with the notice seryed on defendant. He could have got ovtr the difficulty of the slackness of the wires and posts, but lie was satisfied the sods were there. The specification said the old wa'l was to be levelled down, that meant levelled to the ground. The posts were not put properly ip the ground. Plantiffs would be nonsuited with ccsts to e'efecriant. Witnesses expenses, £1 7s ; solicitor's fee, £1 la ; osts of court, £1 ; subpoenas, 4s ;— total, £3 12s. -» The Deacons' Court being dissatisfied with the judgment, raised the local feeling to a fever pitch by bringing on another cass. A large number of persons in 'the interest of the Deacons* Court were taken or went to see the fence in dispute, and for some weeks quite a holy war raged round the disputed bairicade. The Sev. John Kilpatrick, pastor of the congregation, was active and constant ia his visits to the fence with the members of his Deacons' Co-.rr, throwing himself warmly into Ihe defence of bis court's action, and together with the inspector, Mr Smith, he planned a campaign which was to rout the defence and exalt on high the truthfulness of bheir own opinioiis, as expressed in court, and be a ceitificate of their fit&ess to pose hereafter as experts on fencing as well as ou spiritual and genual matters. Munro was again summoned, ai:d all Warepa was in evidence at the court iv B.*lclutha ou Wednesday, February 9. Same counsel were engaged. Mr Stewart, opening for the plaintiffs, said they had been nonsuited last couit day, but on a reexamination of the fencs it was found little or Taotbing could be done to it— that virtually the court had been muled by the evidence of Christie and Munro. George Smith led off the evidence for plaintiff, and endorsed what he said before. When he passed the job on March 22 ,1897, he waa thoroughly satisfied with the fence. With a few exceptions all the posts were 2ft in the ground instead of lft Gin. The old fence was thoroughly well cleared away. Oae strainer had sprung, and the olay had shrunk from the back of another enough to put your hand in. He had no recollection of saying last court day that the fence was not what he liked but he would make the contractor finish it. He had made a mistake last court day ia saying that a straioer had risen in consequence of a fence being strained in to it at right angles, fto other fence was strained to that straining post. The fence he said was strained to it was about four chains away. James Townley, contractor, said the posts were all over 18in in the ground. Munro never interfered with him from the time he started the fence till he finished it. Went to Munro when he started to ask about the line, and Munro said he had nothing to do with it, to go to the people who employed him. John Wright, jun , gave further evidence The fence was a first-class job when finished, and again so in December last. Admitted that he said to Munro when looking at the fence together that certain things were not up to specifications, but these were rectified. Some of the posts appeared to be risen now, and the wires were An old man named John Stoddart gave evidence that he saw Munro at the fence one Sunday morning about 7 o'clock. The fence waa about 15 chains away. The court simply smiled. W. S. Mosley, Inch Cluth.i, said the fence was a good one, and he would have passed it for himself. Considered it had been erected according to specifications. George Smith, jun., still thought it was a good fence when finished. It was not too good a fence now. Harry Hogg, son-in-law of the inspector, saw the fence when it was finished. The wires were so tight you could not make two meet. Had had considerable experience in fencing. Thomas Tait, farmer, Waiwera, member of the Deacons' Court, said the fence was a fair one. Peter Ayson, Toiro, another elder, considered the fence in fair order. There were a few slack posts, but the strainers were all right. James 3? Ayson, Kaihiku, another member of the Deaconb Court, said the posts and wires were 9. bit slack ; otherwise it was a good fence. Matthew Paterson, county engineer, and member of Deacons Court, said the wires were slack and a few posts. So far as material and clearing away of sod wall were concerned the fence was up to specifications. The boring of the posts wati not so perfect aB it might have been, John Fleming, Kaihiku, another deacon, said he would accept the fence for himself under the specifications.^ The tightening of the wires aud posts was all it wanted. John Grant, Waitepeka, another deacon, was Called, but not examined. Mr Reid, for the defence, said all the evidence that had been led was from interested parties, except in the case of Mosley. All the others were deacons, elders, or relatives of the inspector. Many of the witnesses he would call wcia tskeu from a distance and were thoroughly tlLintoiesterl. Ybay were experts.

| James Christie repeated bis opinion expressed I on the last occasion. Found since that occasion ! that the strainer at west end was sprung, and 1 that not one post was bored to gauge. The posts were bored at random, and varied from 3Jin to 7in where they should be sin. The gorse and wall should be cleaied away to make a proper fence. Joseph A. Anderson, Waiwera, sheepfarmer, and valuer under the Advances to Settlers Act, taid he had valued hundreds of miles of fencing. The fence in dispute was a poor fence, not sheepproof. Posls badly bored, showing in some cases % 2in over the gauge. Some of the posts were sprung; several were very slack. "Would not have passed the fence. j Thomas A Johnston, farmer, Hillend, said he 1 would not have such a fence on his property. r ihe posts were not deep enough; htnee had never been properly erected. At one place the wall on Munro's side was only about 18in lower ■ than the top of the fence. J. Wilson Wilson, Balclutha, had exa- ' mined the fence. Took measurements of ! the distance between every post, and measured- , every part in the fence to show th.c irregularity of the, gauge. Prepated a list showing the distances between every post, the width of the wire gauges, and whether the posts were tight, slack, fairly slack, or very slack. This was handed in. The fault was bad workmanship. It was impossible to strain up the wires properly bi cause the posts had been bored at aU angles. John M'Neil, farmer, Balclutha, was called, but his Worship said it was no use multiplying evidence. He was sati&fled with what he had heard. He would drive out to see the fence next morning. He wanted a competent man with a good wire-strainer to be on the ground. Mr Stewart said he would see to this, and -Mr Smith, as inspector, would go with his Worship along with the defendant and see the fence. Mr Smith would see that his Worship was driven out. Accordingly, next mornirig, behind Mr Smith's spanking pair his Worship was wheeled to the manse, where in aud about a large crowd had collected Mr Smith, instead of driving direct to the fence along the load, met hi 3 Worship and walked through the manse glebe, thus giving the Muuro pai-ty the slip. Mr Hawkins and Mr Smith, starting at the west end, walked along the fence, his Worship trjiegthe posts. Oa the fence bfing three part* examined Mr Hawkins said. " I am sati-fif d this post is nut 18in in the ground." A spade was produced and the earth dug away. The rule was applied, and 15in registered, and barely 7in in tbe polid groiind. Another was tried, and registered 16f in. A Titan strainer was then puS on tbe wire, starth.g with the bottom one. Excitement at this time was running very high, and ihe deacons' pa^ty looked particularly blue over the lesult of the measurement of the posts in the ground Mr Hawk in? wanted a competent man, and Townley, the contractor, was produced to wo ik tbe strainer, His Worship seemed dissatisfied with the strainer, and wanted "one of those old-fashioued windlasses you put on tbe straining post with a lever about 3ft 6in long— something with some power i of purchase." , Mr Smith assured bi3 Worship that this strainer ; would do, and his testimony was accepted. While . straining Mr Smith said, " The wire was tight ; I tight enough for anything— far too tight," hut the i magistrate, standing at the fence, l>conieally told I tbe man at the windlass to " roll away " The j wire then broke, and a great cheer and hurrah ! went up from the inspectorial party. The pitce spliced in again broke, aud then not tight any distance away from the strainer. While the btrain- ' ing was in progress his Worship siid : *' I wonder at you farmers buying thi« chtap German wire ; it • won't stand straining." His attention was then drawn to the iact that the feno bad been I paraded all the previous night by a detachment of the Deac ms Court and their fiiends. It was also pointed out that the strainer at the ' -west end was usen, and from what Mr Smith said the clay bad shrunk aw«iy and was carefully • rammed up. The key-; egs, which were slack onI the day before the court tat, were now driven ' home, and otherwise the feiic* made to look presentable to his Worship. To thh his Worship replied that he could only then judge of what he saw that day, or something to that effect. Every wire broke under strain between the straicei s at the east end. Only one wire was tried at tne west end. The result of the slrainiug, alight as it was, was to ease the ea«t strainer ; but tbe wires, some of which, broke four times owing to the bad boring of the posts and to the fact that they were bsing strained through a hollow, were never thoroughiy tight. Mr Hawkins soon said he bad seen enough, and was driven back to Balclutha by Mr Alexander Smith. It was then found that there were several yaids of old wire in the fence, but, strange to say, this old wire had stood ihe strain while ihe new wire broke frequently. Betting on the result was frequent and free, and new hats, suits of clothes, and bottle 3of whisky were the curvent wagers. After the lapse of a month Mr Hawkins gave hia decision at some length, from which the following are the principal points. After detailing all the circumstances his Worship goes on to say:— The notice to defendant concluded thus, " All wires to be tiahtly strained, the wiiole fence to be well and substantially erected, and sod fence to be levelled down," . . . Ontbe7th June, 1897, the defendant wrote to plantiffs offering to pay "as assoonthe Deacons Court completed tbefence to the notice served." Ihave to deculewhether the fence wasso completed either in April or December 1897, when fuither work waa done to it by plantiffs .... I carefully inspected tbe fence . . . Iliad the wires strained, but muss point out that every wire broke under strain by no means excessive ; some broke twice, some three times. There are however two objections which I think are fatal to . tbe plantiffs case. The sod fence was not "levelled." I read the word levelled as being positive and absolute as meaning levelled to the ; ground lines ... lam satisfied that the posts j .could not be made firm because they were so close } to the defendautsside that any attempt to properly : ram them would d rive oat or break up the dry rotten sods. lam satisfied that the failure to level the sod fence is a material breach ' of the . specification given in plaintiff's own notice. (2) ! The gauge specified in the notice has been entirely 'i neglected. No measurement is necessary. The I irregularity of the gauge is patent to the eye from ' one end of the fence to the other. ... It is manifest that with such wire the maintenance of the regular gauge was imperative. The gauge specified on the three lower wires in a wide one — sin— and this has now almost throughout the fence been widened at one or other part from ■ post to pest to sJin, 6in, 6£in, and 7in. . . , | I must also point out the carelees boring of the posts. Many holes are bored not at right angles, but diagonally up or down, making it very difficult to strain the wires effectually. It is impossible for me to say that the plaintiff's have complied with their own notice and the specifications ' therein. , . . I have tried to consider what s I should do in the defendant's case, and lean only i say that I would not pay under attempted com- , pnlsion, because it is not a fence that I could or would pass if I were the person interested. It is not a workmanlike fence, and it is a fence, I think, that will need constant attention. . ". . I therefore give judgment for defendant, with costs ; witnesses' expenses, £A 16s ; court fees, £1 ; professional fee, £2 2— total, £7 18s. Thus has ended so far a case which any fairminded man will admit should never have been before a court.

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