NEIGHBOURS’ FENCING DISPUTE.

Stratford Evening Post, Volume XXIX, Issue 122, 15 July 1911, Page 8

NEIGHBOURS’ FENCING DISPUTE.

VERDICT FOR PLAINTIFF. Hearing was commenced at tie Magistrate’s Court mi Jc.lv 7tn of the case JM. 15. Largess v. H. S. i'j;cstly, a claim lor £7, value M i« Jcuce. The parties own adjoining piopm t;e i in Regan Street, and the iccct in dispute lies between tiro two. though professional evidence was g.aii rliai the fence lay well on Miss liuigo?s’ side of the dividing ime. Air Sptncc appeared for Miss Durgoss, and Mr Alalone for Priestly. A certain imiUiiit of evidence was falcon on the previous Court day, the adjournment being taken while Mr C. J. McKenzie, Puulic Works Engineer, was being crossexamined.

Yesterday, in reply to Mr Malone, Air McKenzie said ho had only ’coked casually at the fence before giving evidence. Since last Court day J.V had inspected the fence closely and had found that about twenty feet cf it was composed of packing case nut ferial. The rails were merely spiked on and the posts were not scarfed. The posts were second-hand, and the other material had also previously been used. There wore several battens missing. These could not have fallen off.

James Jones, Public Works Affico employee, said bo had known defendant for two years and a half. Uc passed the properties in question every day on bis way to and inmi wont. Defendant often spoke to bun. Before the fence began to be removed it was in good order, except tor one rail. In October last, one panel oJ the fence disappeared. Delendaut on one occasion said the fence was not required, and that ho would puli it lown and ci.it it up. Ho also said the hedge _w:ni l suMice. b rom time to time, witness saw throe more panels disappear. It would be impossible for the panels to ia;j down. About. December, defendant said be bad received notice from Miss .burgess go replace the fence, but said lie did not want tlio fence, and would pull the whole of it down. Later, defendant said that two men had come down to mend the fence, but that be bad called the police and ba i them removed.

-By Mr Malone: There wore one or two rotten posts in tiio fence. lie would not say that the posts removed were not rotten. Defendant's conversations did not suggest that lie iiad a spite against tiic fence, but that ho did not see any use for it. Constable Bleasel said that in Nc- * vember last he was called down to Miss Burgess’. A panel of the fence had been removed. Witness asked defendant why lie had taken the panel down, and no said it was leaning over, obstructing the passage to his house. When the two men were sent down to mend the fence in April, defendant refused to allow them to do so.

_ Constable Mackintosh said the residue of the fence, as ho saw it, was solid. Defendant’s counsel was wrong in suggesting that the panels were blown down. If those had been blown down half the fences in Stratford would have come down also.

Mary Elizabeth Burgess, the plaiht ill, said that as a result of a complaint by Mr McKenzie in October last, she wont down to see defendant. Witness found a panel down. She asked defendant if ho would reelect it or go halves in the cost, but he refused, saying the whole fence should come down, as the hedge was sufficient. On January Ist, witness saw defendant sawing the fence—at the second panel. Alter that several other panels had disappeared. By Mr Malone: She had owned the property for the past five years and a half. About three years ago she ha 1 planted the hedge which had been mentioned. The hedge had grown up high—-it might be eight feet. Defendant did not see her in July last, and toll her that the fence was beginning to go. She had not put in the hedge to replace the fence —the hedge was put iu merely to make her property more private. When she saw defendant milling down the second panel she said nothing, as she knew she would be abused.

This closed the case for the plaintiff. Mr Malone said the case should never have been brought to Court. If plaintiff had desired to go to the limit in the matter the most she should have done was to have proceeded under the Fencing Act. Plaintiff claimed on a trespass, but it would he necessary to prove that the trespass was wilful—an accidental trespass should never be made the basis for an action in that Court.

Henry Stephen Priestly, defendant, said he had a shop beside Miss Burgess’ property. ' The wooden fence between tiie sections was composed oi eld pieces of timber, and it was about ten years old. In July last the fence was in a bad state. ’Witness saw Miss Burgess about the middle of July, and told her that the fence was starting to go. At that time it would not have been expensive to repair the fence. "Witness complained of its condition. Miss Burgess said: “Oh, then, you don’t want the fence?” Witness said it was a matter of indifference to him, and Miss Burgess said: “Well, we’ll just let it fall down and then do without it.” On October 12th, he found thirty feet of the fence lying over in Ids right-of-way when lie got up in the morning. It was very dangerous for people using the right-of-way. He sawed through one of the rails to allow the fencing to lie down. The posts were rotten. On October 10th, Miss Burgess called on witness. Witness said the fallen fence would have to be cleared away, and ho offered it to her for the taking away. Miss Burgess made no reply. The fence was allowed to lie until Decentbei 2 ltd, when witness broke it up and stacked it against Ids house. Two people had complained of getting Hurt through falling over the fence while it lay on the ground. This material had disappeared, but he did not knqw who had taken it. Since tiien two further panels had been blown down. On March 23rd, witness received notice to fence. 11c looked up the Fencing Act, and found that no further fence was required beyond the hedge. Before ho had time to reply, men were sent down to re-erect the fence. The material brought down was third-class. Witness said ho wanted a respectable fence if he was compelled to fence. By Mr Spence: Mr McKenzie’s description of how the fence disappeared was untrue and Constable Mackintosh's was ridiculous. Miss Burgess, Constable B lease], and Mr Jones were all hopelessly out in their et idonce. Witness had never said to Jones'that lie would have the whole of the fence down. This was a pure fabrication on the part of Jones.

John Irveiarity, butcher, said lio used 'Priestly’s right-of-way daily. Two posts wore in the piece which fell down. One day he fell while crossing the fence, and complained to defendant about it. He thought that tlie time was about October. At this paint the luncheon adjournment was taken, and the parties and

the Magistrate visited the scene

On resumption, William Webb Stevens, cabinetmaker, gave evidence that bo bad worked for defendant for six years. One morning on going to work lie saw part of the dividing fence down. Parts of the L'mircb of England fence and the old Alascuic Hall fence were also down. On that occasion three panels came down, and one bad come down since. Thomas David Sullivan, Borough Overseer, said to erect thirty feet of fence in the same style as the remaining piece would cost about ten shillings. To erect a new fence would cost £1 15s.

By Air Spence; Witness would be surprised to hear that plaintiff bad spent twenty-seven shillings on material to replace only part of the fence.

Air Alalone, addressing the Court, said the case should nor have come before the Court. Previously both parties regarded the fence as standing on the boundary. The other side baa failed to prove that there had been a wilful trespass, which it was necessary to do before damages could be recovered. ' All that was necessary to make the hedge a good fence would oe to put some netting-wire along it to keep out does.

Air Spence said there had boon a deliberate trespass. The S.AI. said the case was one

which should never have come into Court. No doubt the fence might have been blown clown, but this was probably as the result of some action by defendant. Defendant had sawn through certain places, and the timber was quite sound, so that if the fence was blown down it must have been a very heavy wind. The evidence was against defendant so far as removal was concerned, and defendant’s own admissions were against aim. The evidence showed that plaintiff was desirous of repairing the fence and defendant against it. As idle fence was on plaintiff’s land, defendant committed a trespass in touching it; and even if it were a boundary fence defendant had no right to touch it without coming to some agreement with plaintiff. Defendant had taken things into _ms own hands, and had not clone things in the correct manner. As to replacing the fence he hardly thought chat anybody would re-erect it for £1 15s. He thought that the damages ho should give should only bo sufficient to replace the fence. Judgment would therefore bo given for plaintiff for £4 10s, with costs £l3 sc. __________