SUPREME COURT.

Otago Witness, Issue 2528, 27 August 1902, Page 13

SUPREME COURT.

CIVIL. SITTINGS. Thursday, August 14. (Before His Honor Mr Justice Williams.) M'NEIL AND ANOTHER V. MUEHAY. An action for possession of a farm. Mr Sim appeared for the plaintiffs, John M'Neil the younger and James M'Neil ; Mr Hosking appeared for the defendant, Alexander . Murray. The statement of claim tendered by plaintiffs set out that they were the registered proprietors under the Land Transfer Act of the Rosebank Farm, of 163 acres 1 rood, near Balcluthn, and that defendant was and had been for some in wrongful possession. T'laintiffs claimed to recover possession and £50 for profits accrued. Defendant claimed that he was entitled to bo in possession as of right. On December 27, IS3S, John M'Xeil agreed to lease the farm to Simon Wright for five years, at £100 a year. Wright entered into possession on May 15, 183S, and was the tenant until May 15, 1900. Prior to that date defendant contracted with Wright for the purchase for £150. John M'Neil was requested to concur m the change of tenancy, and agreed to consent, on condition that a portion of the land — namely, allotments 21 and 27, containing 16a lr 39p, should be surrendered. By an agreement of the 30th April, 1900, between. John M'A r eil, Simon Wright, and defendant, it was witnessed that in consideration of John il'Nei) agreeing to execute a lease for fi\e yeais to the defendant as lessee, and piociumg the new mortgagee's consent thereto, of the balance of the farm (such balance being all the land in the farm except allotments 21 and 27) at an annual rental of £80 for such balance, the defendant agreed to execute such demise when called upon to do so, and defend? nt agreed to forgo all right and titles to allotments 21 and 27. By virtue of this lease defendant entered into pcssession. The defendant also set out by way of a countsr claim that it bo declared that the plaintiffs and the lands mentioned are bound by the instruments referred to, and that pending judgment in this action the plaintiffs be restrained from dealing with the said lands. Plaintiffs, in reply to the counter claim, admitted they were bound by the instruments of December 27, 1898, and Apnl 30, 1900, and said that the tenancy created by these instruments had been determined as hereinafter set forth That defendant had committed the following breaches of the covenants and conditions contained in the said instruments — (a) He had broken up land which had been in grass for less than three years; (b) he had not kept the said farm clear of noxious weeds, allowing Califorman thistle, couch grass, and gorse to grow thereon, (c) he had not cut and trimmed the live fences on the said farm. After defendant had committed these breaches of the co\enants John M'Xeil the lessor in June, 1902, determined the tenancy, and the defendant had since then remained in wrongful possession of the farm. Mr Sim, in opening for the plaintiffs, said that the real question at issue between the parties was whether defendant had been guilty of the breaches of covenant that were referred to in the statement of defence to tho counter claim. The defendant set up a tenancy created by John M'Neil, who was not one of the plaintiffs. The plaintiffs accepted the position that they were bound by the document signed by John M'Xeil, and set up the breaches of covenant leferred to rs an answer. The defendant was in occupation under this informal document, and he claimed to be entitled to specific performance of this agreement. If he had been guilty of t)io breaches of the covenants that would be a sufficient answer to any claim for specific performance Mr Hosking remarked that that was a point he wished to contend against. Mr Sim, after explaining the circumstances under which defendant became occupant of the land, said he had also committed a bieach of the covenants, requiring him to farm the land in accordance with the most approved methods of husbandry in the district. He had failed to eradicate Cahforuian thistle, couch gr^es, and gorae, and to keep the live fences trimmed. Evidence nas given by Hobert Grigor, surveyor. G. H. Gilroy. fdrmej , Robert Angus*, labouier, J. L. Bruce, stock inspector, and John Jl'Xeil (plaintiff's father), John M'Xei l , jun. (plaintiff), and this closed the case ior the plaintiffs. Mr Hosking s?id that the case for the defence would be a denial that any breaches of the covenants, had taken place. He did noS propose to argue the law points at this stage, as he hoped to have an opportunity of doing so later. He would merely indicate the points on which he relied for the purpose of showing there had been no breaches committed. As to breaking Tip land which had not been down in grass for three years, the paddock referred to was in a ploughed stat" v hen defendant took possession m Augu=t. 1599. There was no agreement signed t.ll Mr M'iVeil became anxious to get a surrender. The land was ploughed by Mr "Wright, and the proper thing

for Murray to do was to grub and harrow it, and put in either grass or crop. Defendant put in grass, and it would be shown he put in a proper mixtuie of grasses, and properly manured the ground ; but, notwithstanding this, the grass did not grow. It was an exceedingly poor piece of ground, and consequently there was no growth. Defendant gave it a spell for another season, and still it did not grow, and was worthless as pasture. The lease required him not only to do various things, which it was complained he had not don©-, but also to farm the land in accordance with the best rules of husbandry. Learned, counsel would submit that on a proper construction of the lease that in order to do thia defendant was justified in ploughing the paddock up and sowing it down- again. Mr M'Neil simply objected to the ploughing, as bethought the Government might take the land, and in a ploughed state it might not be so readily sold. When Mr M'Neil gave notice on June 16 he said nothing about this as a broken covenant. • The notice simply dealt with noxious weeds and non-pnvment of rent. This question of breaking \ip the land seemed to come like an after thought. Then as to the Californian thistle, evidence would bo given by those who knew the farm thoroughly that there was a considerable amount of thistle there before either Murray or Wright took possession. Learned counsel contended that the clause Te keeping the land clear of thistle was properly complied with, if defendant took the common meThods of endeavouring to kill it. It was impossible to extirpate all at once, and the only process which could be adopted wns that whicn the stock inspector referred to — of " chipping ' it with a view to its ultimately dying. As to the couch grnss, the question wns one as to whether it was really a noxious weed. The only way to get rid of it was to gTub and harrow it, but following defendant's tenancy came two of the wettest seasons known In the Clutha, and in a wet season nothing could be done with it. It would also be a question for the court to deteirnine whether the breaches were intentional cr unintentional. As regarded the trimming; of the hedges, it would be contended that, as far as the KQrse was concerned, Mr M'Neil himself undertook to take it out and put in a new fence. The hedge was of such a character that if it was cut there would be so many holes that the stock would come through.

Evidence was then given by Alexander Murray (defendant), and at 5.10 p.m. the court adjourned till 10.30 this morning.

Friday, August 15. m'neil and another v. murray. An actioa for possession of a farm. Mr Sim appeared for plaintiffs, and Mr Koskmg for defendant. Alexandc-r Murray, the defendant, continued his evidence, which was interrupted by the adjournment on the previous evening. Further evidence was given by Simon Wright (farmer), Richard Campbell (farmer), John Findlay (farmer), Adam Houlistan (farmer), William Robert Brugh (solicitor), and Margaret Mivrray. At 4.20 p.m., Mr Hosking said he did not , intend to call further evidence, and as he would deal with tho law on the matter et some length he suggested an adjournment. His Honor consented, and the court lose.