SUPREME COURT.

Otago Witness, Issue 2934, 8 June 1910, Page 37

SUPREME COURT.

CIVIL SITTING, Fbiday, May 27.

(Before his Honor Mr Justice Williams.)

ORBELL V. O'CONNELL. This was an action in which John Arthur Orbell, of Seacliff, railway employee, sought to recover from Daniel O'Connell, of Seacliff, farmer, £4O for trespass. Mr A. S. Adams appeared for plaintiff, and Mr W. C. MacGregor and Mr B. S. Irwin for defendant. The statement of claim set forth that since June, 1876, he had been in possession of 30 acres of land in the Waikouaiti district; that on the 14th January, 1910, and again on the 20th, 21st, 22nd, 24th, 25th, and 27th of the same month the defendant trespassed on the land, and from the date first mentioned depastured the same with horses, cattle, and sheep, and destroyed the grass, also breaking and damaging locks, gates, and fences. _ The statement of defence contained a denial by defendant that he had trespassed, and he also said that plaintiff had never been in possession of the land in question, and that this land was Native land within the meaning of the Native Land Acts. On the 21st October, 1909, the Native owners of the.land had agreed to lease it for a term of 21 years, and by virtue of that demise the "defendant entered upon the Jand. At the time of the acts complained of the land was held by the plaintiff and the defendant as tenants in common. Mr Adams said that in 1876 Orbell entered into possession of the land, cleared it of bosh, and built a four-roomed house, and from then till now had been in continuous possession. In 1908-09 Orbell was the railway man in charge of the station at Puketeraki, but for some part of that period he was in charge of Kokonga. While there his wife lived partly at Puketeraki and partly at Kokonga. In June of 1909 Orbell became ill, and his wife was awav from Puketeraki for three month?. During the whole of the period, however, the house had been maintained as a home. with Orbell's furniture in it. While Orbell was at Kokonga, he arranged with David Reid to look after the property awl let the agistment to various neighbours. That was up to the middle of 1909. Then Reid was taken ill. <a.nd had to go to the Hospital. It was while Reid was away that the first of the acts of trespass complained of took place. Then Orbell wrote to John Lloyd, another neighbour, and -ajdeed him to take charge: but Lloyd was also taken ill, and Miss Llovd was then in charge for a short time. The southern boundary of this land was the northern boundary of O'Connell's land. The fence of-,that boundary b*d been repeatedly interfered -with, p-enerally in the night-time. The wires "would be cut, and in the morning cattle and sheep were found on the property. On one occasion O'Connell and his man were seen trying to put cattle through the gan. A series of aggravated trespasses would be proved. Mr MacGregor said • the p-oinsr on the land was n<->t disputed, if Orbell had a right to. the ground, no doubt there had been trespass. ;.. His Honor asked was there a physical trespass.

Mr MacGre<*or replied that that, could not be admitted, hut it was admitted that the cattle were defendant's, and that they w-ere put. on the land. It was no accident, but a deliberate act. Mr Adams called as witnesses Pose T>lovd. David Rcid. John I.loyrl. Robert Parata, Denis Keosh. Henrv Heckler. John Fruish, Mary Orbell, and John Arthur Orbell Mr MacGresror _ said the defence in the case, as already intimated throughout th-e proceeding's, was almost entirely a question of defence based upon law. The defence was that plaintiff had no such right to possession as entitled him to bring an action for trespass. Admitting for a moment that if this land had been vested in a Euronean. and that the person in npssession (Mr Orbell) could sue Mr O'Connell for trespass, it was still defendant's case that the matter was very different with the land in question. That was known as Native land. Counsel went on to speak of the English law, and said the law relating to Native land was compendiously summed up in a memo, bv the Historv of Native Land and Legislation prepared by Dr Salmond, Solicitor-general. In the present case neither partv had any title to the land. That was the result of the transactions—consequently neither could sue the other for tresnass. As far back as the Consolidation Act it had been recognised Jthat the law relating to Maoris and Maori Viand was a subject bv itself, and was not ''part of the , common law nor subject to iL

Counsel went on to deal with the law regulating Native land, and submitted that plaintiff had no right to sue. He would call defendant to satisfy his Honor that on the merits plaintiff had not so meritorious a cause of action as he would have the court believe. Evidence was given by the defendant (Daniel O'Connell). Counsel again addressed the court, and his Honor reserved his decision.