Supreme Court.

Star (Christchurch), Issue 1476, 20 November 1872, Page 3

Supreme Court.

mrisi pkius. Tuesday, Not. 19. "(Before Mr Justice Gresson, and a Special Jury.) His Honor took his Beat in Court at 10 • o'clock precisely. XEE V. BHOWN AND ANOTHEB. The hearing of this case was resumed. John Tucker Ford, examined by Mr Wil- " liams : lam a commission agent and valuer in *Christchurch. I went to Mr Lee's sometime in February last ; it was about the 16th, so • far as I remember. I went there to assess •. damages that had been done to his run, stock, buildings, &c. Mr Lockhjirt and myself went round the place and examined it. We made '•a list of valuations in a pocket-book of things that had been damaged or destroyed by fire, ■ and which were brought under our notice by Mr Lee. We made out the list produced from entries in my pocket-book. I have not my pocket-book with me. This is a copy of ■' the entries in the pocket-book made out im- ■ mediately after our examination of the place ; ■itis in my handwriting, and was made out ■■Terbatim from my pocket-book. [Valuation ; . inventory put in as evidence; Mr Gavrick admitting it as on his Honor's notes as 3Jr i-JTord's evidence.] I consider that a reasonable valuation. I consider it fair and reasonable ;it amounts to £1015 15s Gd. 1553 - sheep are included in this list. There is no -sum added to this valuation for damage to ;pump and well. • Cross-examined by Mr Garrick : We took the i number of sheep from Mr Lee. I saw quite 400 or 500 lying dead. The value per head is ;an average value. I think all Mr Lee's sheep •would be worth 5s a head. He told us he > paid a high price for some of his sheep. We •valued them as flock sheep. I consider myself competent to value buildings destroyed on .stations, having creeled some myself. We ■ took our information from Mr Lee and a carpenter on the station. We did not take our values from Mr Leo. We went up armed '"with the price of timber and rates of wages ; but we took our valuations principally from what we were told. The carpenter, I believe, • told mo the price of timber. We fixed the rate of wages ourselves. AYe arrived at the -quantity of timber from measurement of the buildings. Mr Lockhart and myself coincided "with each other. Alfred Cuminings, examined by Mr Harper : I am a shepherd in the employment of Mr Lee. I have been in his employment three years last October. I remember the Ist of February last. I remember a fire taking place in the neighbourhood about that time. I saw the fire in the direction of Mr Brown's run. I wai about three miles off at the time I saw it. It was about 20 minutes to 8 o'clock in the morning. I had the Port hills to guide ray vision. It was blowing north"west at the time. The fire was burning very fiercely about half -past 8 o'clock. It did not look like an < ordinary grass fire : it looked very like a manuka scrub fire. I watched the fire; the fire '-was blown towards the southeast across Mr Brown's run. It kept burning in the same direction till between 3 and 5 o'clock. The wind then chopped round to the south-weßt. The firo was blown across j Mr Murphy's run ; I saw it myself. It went front one end of Mr Murphy's run to the other. It ran from the south boundary of Mr Murphy's run up to the edge of the river Eyre. I saw it on Mr Murphy's run on Thursday, tho Ist February. The fire kept turning on Mr Murphy's run till about 10 ■o'clock at night. I again caw tho fire on Friday morning, the 2nd February. It appeared to be still on Mr Murphy's run. The wind was blowing north-east on Friday morning. The north-cast wind Bprang up strongly aJfeout 9 o'clock on Friday morning. The fire then went on to Mr Lee's run. It went to the west boundary of Mr Lee's run, •to Mr Pearson's. I saw tho fire when it was on Mr Lee's run. I went down to where I sawtheifire on Mr Lee's run on Friday aftermoon. I saw there were no possible means of putting -the fire out. I came home again, and ■went .on to the upper run and collected the ahoop together. I rode down to see ii there ■were any sheep on the lower run. The wind <waß still blowing from the north-east, and the fire was going towards tho south-west. On Saturday, at daylight, tho wind commenced iblov.ing from tho north - west. It continued blowing from that direction •till about half-past 11 o'clock, when tho wind changed to the south-west, and ■drove the fire down to Mr Lee's buildings. 3tfo five was lit by me on Mr Lee's run before or on tho Ist of February. There was no fii'c whatever on Mr Lee's run. I saw fires on Mr Brown's run a fortnight or three weeks — somewhere betweon the two — before the Ist of February. I saw no fire on Murphy's run before I saw the one on Brown's on the Ist of February. It was the guide of the Port hills that led "me to conclude that the fire began on Mr Brown's run. I know Mr Brown's run. I have been on it since the firo. L went along Mr Pearson's boundary (between Mr Pearson's and Mr Brown's run) and saw where I thought the fire had boon lighted. I was then about three-quarters of a mile from Mr Pearson's boundary, on Mr Brown's run. I took tho direction of tho Warren's station from •where I was standing, and I came to tho conclusion that it must be there where the fire was lighted. There was nothing else to lead mo to the conclusion that the fire had been lighted there. I know the boundary between . Mr Brown's and Mr Pearson's run well. There is principally scrub upon it; on the lower side of the boundary on the east side there i 3 a great deal of grass ; the scrub there is not so strong ; tho tussocks grow stronger there where the scrub is not so thick. I had not been on the boundary for 12 months before. I certainly think I should have seen any other fire in the neighbourhood. The weather was very dry at this time. I should not under any circumstances have lighted a firo ; it was very dangerous to burn at all, as it was an unusually dry season. I believe the fire I saw

on the Thursday on Mr Brown's run was the snme that I saw on Mr Lee's run on the Saturday following. Cross-examined by Mr Garrick : A fire had not been lighted on Mr Lee's run a few days before. He had been speaking about burning his run, and wished that some rain might come to enable him to do so. He would not light a fire in such dry weather. I went to Mr Brown's run on purpose to make the inspection. Mr Lee sent me down to look at the locality. I did not see indications of fires having been lighted in more than one locality. I did not search particularly. The wind changed to south-west before the fire came on to Mr Murphy's run. The fire burned for a mile or a mile and a-haif before the northwest wind. I cannot speak positively as to the distance. I should think a mile and a-half would have taken the fire beyond Mr Murphy's south-cast corner. The fire appeared to come out of the scrub on to Mr Murphy's run. The fire came on to Mr Murphy's run very near the south-east corner on the southern boundary. The fire appeared to be going from scrub to scrub, "when I saw it crossing to Mr Murphy's run. I couldn't positively say whether the fire reached Mr Dixou'a boundary, because the smoke got so thick that I couldn't possibly see. The smoke got very thick between one and two o'clock. The fire crossed from Mr Brown's run to Mr ! Murphy's between three and five o'clock. The smoke got very thick just as I thought the fire was crossing. As the smoke blew] away from the direction I was in, I could sec j the ilames. The south-west wind would not be blowing the smoke right towards me ; it would not. When the wind was blowing! south-west I was at the station. The north- i west wind in the morning very nearly blew the smoke right away from where I was standing. Re-examined by Mr Williams : The wind blew from behind where I was standing. I first saw the fire between seven and eight o'clock on Thursday, the Ist February. Laning Coates, examined by Mr Williams : lam one of the defendants. lam acting as agent for one of the proprietors of the run in question, known as Mr Brown's. I know a man named Chartress in our employment. He is a shepherd on the run ; he has not the management of it. Mr Brown manages it ; he is supposed to superintend the management of the run for an interest. Chartress is what may be called head shepherd. Mr, Brown does not live on the run. During Mr Brown's absence, Chartress has charge of the sheep aud run. There is no resident manager on the run. The license of the run is in the name of Mr Curtis. Cross-examined by Mr Garrick : Mr Brown's residence (Swannanoa) is near the run. There is only one run between his residence and the run. David Chartress, examined by Mr Williams: I am foreman for Messrs Brown and Coates on their station. lam in charge o£ the station. I recollect the Ist of February last. I recollect a. fire in the neighbourhood that afternoon. There was a fire on Murphy's run in the. afternoon. I loft the home station at 7 o'clock that morning. After the fire took place, I gave evidence at an inquest at Eyraton. On the morning of the Ist February I went to the out station on the river Eyre, about 6 miles from the home station. I saw no fire on my way out. I saw no fire on the run before 10 o'clock that morning — before I lighted it myself. I lighted a fire about 10 o'clock in the scrub. I lighted the fire in the scrub about 3 miles from the home station.. It was parallel witli Murphy's boundary, but a good way off. There was no fire on Mr Brown's run before that, to my knowledge. I don't think there could have been a fire without my seeing the smoke. The wind was blowing feoni the north-we3t when I lighted the fire. Thnt would drivo the fire in a soutii-east direction towards the west boundary of Mr Dixoa's run. I don't think tho wind changed until 5 o'clock in the evening ; in fact I am certain it did not change until about 5 o'clock. It then changed to south-west. That wind would take the fire nearly due j north, I should think. It was a southerly wind certainly,, but how much west I cannot say. I saw a fire on Murphy's run about 3 o'clock on the Thursday. I swear positively I saw a separate lire oa Murphy's run. That lire (.tune across our van on to Dixon's, for a distance of about four or Uve chains. It died out on Dixou's run. AVo put tho fire out on our run ; I mean the fire that came from Murphy's run. I received no instructions from i\ir Brown io burn any particular spot ; it was optional on ray part where I burned, as being in charge of the run, I have b.een in the habit ox burning where I thought proper. I ncrei" received instructions from Mr Brown not to burn. I went that afternoon for assistance to help we to extinguish the fire. I am quite suro it was in the afternoon, between 3 and d o'clock. I went to the outstation. I will swear that I did not go for assistance in tho middle of tho day. It was 4, o'clock in tho afLcruoon when I went to Mr Higgins to tell him that his run was on firo.' I mean Murphy's run, of which Mr Higgins was manager. I told him that his run was on fire, and that- 1 would not deny that I had been burning scrub. Higgins had previously asked me if I had lighted the fire on Murphy's run. I did not cay to him that I could not deny it was mv fire. I do not recollect Higgius telling *me that 100 men could not put it out. I was not much excited. I will swear I did not tell Higgins that I had lighted a fire in the scrub, and that it was spreading over his and Dixon's runs.- I told Higgins that if he would come I would give him assistance. I did so because his fire was driving on to our run. The fire on Higgins run and ours was all one. To tho best of my belief it was four o'clock when I went to Higgins. There never -was any connection between tho fire I lighted in our scrub and the firo on Murphy's run. The fire I lighted died out in the scrub. If other witnesses have sworn that it spread, it would be very untrue. The fire I lighted at 10 o'clock was out between 1 and 2 o'clock. I could then see neither smoke nor fire. I went home

about three and a-half or four miles after I lighted the fire. The wind was blowing N.W. I was on the run from lighting the fire until about 2 o'clock when I wont back to the outstation. I saw smote on our run after 2 o'clock ; it waa driving in a S.E. direction. To the best of my belief the fire I had lighted went out before 2 o'clock. There was no smoke at all from that fire then. The fire I lit was not turned at all by the S.W. wind. I will swear positively that 'the fire I lighted did not spread across the run towards Dixon's. I will swear that I never told Mr Higgins that I lit a firo which was spreading on to Dixon's run. I said that there was a fire spreading on to Dixon's run, but not that I lib it. Mr Higgin3 said to me " Are you the lucky man that lit (lie fire ?" I said' 1 ' I will not deny that I was burning scrub, but it was not my fire that lit the fire on Murphy's run." It was all scrub that I burned ; there was no grass there. After I had lighted the fire I went towards Pearson's. I have spoken to Mr Brown on several occasions about this live. I spoke to him on 2nd February. Ido not think that I told him it was the boy Hyde had set fire to the run. I said that I believed it was Hyde, but that I could not prove it. My only : reason for thinking- so was because Hyde waa | the only person in Murphy's employ, I said jto Mr Broivn — '-'I expect 'they have seen my • large fire and thought they would have one jas well." My . fire was a large one, but it ; burnt out very quickly ; where my fire stopped had been previously burned* awaj'. My fire died out in a S.E. direction, and never was turned by a Sou-wester. On the Friday, when riding out with Mr Brown I | met Hyde, and asked him whether he bad I lighted a firo ? He said he had not done so. j I asked him if Mr Murphy Lad lit it ? Hyde said " No." ?,Ir Brown asked if any farmers had lit it ? Ho said no, he had not seen any farmers on the run. I have several times told Mr Brown that I thought it wa3 Hyde that lighted the fire, but that was only my supposition. Cross-examined by Mr Garrick : The fire did not go from our run to Murphy's. When we put up the wire fence between our run and Murphy's I burned what had been the old scrub fence. Outside of that burned belt there is a belt of green timber still unburnt, running parallel with the boundary fence. That green belt is at least eight or ten chains wide. There is no scrub to tho S.E. corner for more than half a mile. The firo could not pas 3 from our run to Murphy's without burning that green belt. There ore indications of the fire having burned into that green belt on the side nearer to Murphy's run. The fire which burned those places would come from the N.W. That green belt is situated between where I lit the firo and Murphy's run, and the tnnrks where the firo had burned into it were nearest to Murphy's run. Tho plan now produced is a plan of tho fire on Murphy's ran and the fire lit by me. It shows the dividing line between Murphy and Brown, and also tho green belt of which I have been speaking, and which appears to bo correctly laid down. I see' a second part marked green scrub. When I told Higgins that the fire was eating down from Murphy's to our run he said the wind would change, and it would soon die out. I came back and got the sheep out of the way, but before that I had sent two men to extinguish tho fire at Dixon's boundary. After I had got the sheep out of the way I went and helped the men, and we extinguished the fire. ■ There is no indication of the fire lit by me and the firo on Murphy's 'run having united. I believo the fire that burned towards Eyretou had been lit on Dixon'3 run. The Court now adjourned for half-nn-hour for refreshments. On the Court resuming — H. B. Blanchard, recalled and examined by the Judge,s«id : I observed a belt of scrub partly burned by the old fire and partially burned by the new fire, but the new fire crosses at a point about a mile and a quarter from the S.E. corner, and extends- on the east a considerable distance into Brown's run. The belt of sorub is as muck burned on Brown's eirle as the other. I did not notice any green scrub there suflicieut to check the fire. There might have been beyond my survey line. At the S.W. corner of Murphy's run it was patches of scrub sonic distance away from the fence. I went to that corner and Baw no appearanco of the fire- 1 way trying to trace. By Mr Williams : The scrub did not in the slightest degree indicate which way the fire had gone-. If there had been any post and rails I might have been ablo to tell. I was there on the 3rd or ith of June. I was thore for thvee days. I Baw marks of the firo on both side 3of the scrub. By the Jury : In tho mile and a quarter it was mostly all burnt. Then there wore- places were it was only partially burned. There was a continuous lino of firo right through from one run to the other. Marmaduke Dixon, examined by Mr Williams : 1 am a runholder, living at Eyreton. On Ist February last there were some large fires in tho neighbourhood. There was a fire in tho heavy scrub away to tho S.W from me, about 7 o'clock in tile morning. It appeared to be in the direction of run 119 (defendant's run). I can mark the line of direction, but I cannot mark the distance. I can not be very particular about the direction. It was in tho direction of S.E. comer of Murphy's run. The thick scrub from which the smoke appeared to rise is on Pearson's run and Brown's run. It was not on Murphy's run, but was not far away from the southern boundary of Murphy's run. The wind was strong KW. at that time, aud afterwards increased, and lasted up to 3 or 4 o'clock in the afternoon, and a fire burned on to my run, but whether that was the same fire I am not m a position to say. When tho firo appeared to be coming on my run such was the intensity of the smoke that it was impossible to tell where the fire was. On Friday, 2nd February there was a fire burning in tho direction I have indicated. It burned for some days. I cannot say whether it was the same fire I first observed. I lit a fire on my run to protect

my sheep. I saw Chartress on the Friday morning, and asked him if that was his fire that started up in the scrub yesterday morning between 7 and 8 o'clock ? He said it was. The wind changed to the S.W. on the Ist February between half -past 3 and 4 o'clock. There was no fire communicated from my run to Mr Brown's run. Cross-examined by Mr Garrick : I do not think it was an injudicious thing to light a fire in the scrub on Thursday, Ist February. Some persons might think so.' E. L. Higgin3, examined by Mr Williams : lam a aheepfanner, residing at the Oust. I recollect a fire taking place — I think it was on a Thursday, but I do not know whether it was in February. I know Chartrcss. On the day I saw him thei c was a large fire, a eousiderable distance from where I was. I think it was about the middle of the day Chartress came to me, but 1 cannot tell the hour. He came to me for assistance to put the fire out. My men and I were discussing the fire when Chartress came up. I asked him if that was his fire, he said it was. I told him he -had better go and gather the sheep out of the way and never mind putting out the fire. He shortly afterwards wont away. That is all that passed between him and me on the matter. He was rather excited. He said, as well as I can remember, that Mi- Brown's run, and Mr Dixon's and Mr Murphy's were all on fire. I think that was before he said it was his fire. Before Chartress came up I cannot say where the firo was, but my impression was that ifc was on Brown's run. I and Chartress had a conversation a considerable time afterwards. He told me that there must have been a second fire, which was lighted, he believed, on Sir M urray's or Mr Lee's run. Chartress, when he first came to me, said '• it is my fire, it is no use denying it." I was at that time trustee of *Mr Murphy's run. It was a dry season at the time, and during the day that Chartress came to me a nor r -west wind was blowing, which late in the afternoon changed to southwest. Cross-examined : I think I first saw the firo early in the forenoon, after breakfast. This closed plaintiff's case. The following witnesses were examined on the part of defendants : — Charles French Pemberton, examined by Mr Garrick : I am a Civil Engineer and Suryeyor. The witness hei'c produced and proved a plan of the locus in quo, which had been prepai'ed by him. The lino of green indicated a line of green scrub, and patches of burnt scrub. There was a patch" of burnt scrub between the fence and the green scrub. The green belt is on Mr Brown's run, and averages about 8 chains in thickness. In some parts the old burning has gone nearly through it. There are also indications of a recent fire where it has crossed the boundary line, between Murphy and Brown, near the south-eastern boundary. From what I saw on the ground, the fire appeared to have come from the N.W. to the S.E., that is, from Murphy's run on to Brown's run. The flame seems to have been driven from tho N.W. side, and the ground is scorched on tho S.E. of the bushes. The firo doea not appear to have been driven through the belt oil the green scrub. It appears to havo come out from the S.E. corner of '■ Murphy's boundai'y. It also appears to have been driven a few chains to the northward of Burnt Hill Creek. I havo in my examination confined myself principally to the boundary. I did not observe any indications of tho fire having passed from Brown's run on to Mur phy'&; but there are indications of it 9 having passed from Murphy's run to Brown's. Cross-examined by Mr Williams : A man going through the belt, on foot, would have been as well able to judge of the indication* of the fire as I was in a dray. I was on the spot last Wednesday. I saw that the fire could nob have gone through the green scrub. There were indications of a former fire having taken place in it. Chartress and Brown took me on to the ground. Before I began my examination Chartress pointed out the direction, in which he supposed tho fire to have come. By Mr Garriek: Tho scrub on Murphy's side of the green bolt is much bluckev than on the south eidei There is no indication, of vegetation even now on Murphy's side. By the Jury : There were marks of a recent fire having passed from Murphy's run to Brown's run. James Vo3S, examined by Mr Garrick : I was shepherd for Mr Brown. I recollect the fire on Ist February last. The first I saw of it was about 10 a.m., or a little after. I was in the shepherd's hut when it was lit. There was no fire when we went to tho hut at 0 a.m., but at 10 a.m. I saw two distinct fires, about two miles apart. To tho beat of my beliof, one appeared to be on Murphy's run, tho other on Brown's run. Tho wind was blowing from the N.W. very strong. About 4 p.m. Chartress camo to ii 3to help htm to put out tho tussocks. I and Thornus Iliohardeon went with him. Tho firo appeared to bo coming from Mr Murphy's run at Burnt Hills Creek. We stopped it from going on to Mr Dixon's. During the timo we wero so employed the wind changed right round, with a littlo vain. When wo finished putting the firo out, there was a firo still burning on Murphy's run, which appeared to be greatly on fire. I know tho boundary betweea Murphy and Brown on the south. I was with Chartress repairing that fence in Soptomber. We burned away an old scrub fence, and put a wire fence up. There did not appear to havo been a firo thero before. I saw that boundary four or five days after, putting out the fire on Dixon's run. The scrub on Brown's Bido was just as when I left it. I never noticed a green bolt of aorub after the fire on Brown's run. I havo not noticed any lately, as I have been in tho hospital for six weeks. Chartress never showed mo where he set out the firo. Cross-examined by Mr Williams: There was no scrub burned by tho big firo on Mv Brown's side. Tho fire I saw on Brown's run at 10 a.m. appeared to bo in the sorub towards the Waimakariri. ■ "" By the Jury : Tho fire I assisted Chartress to put out vraa on Mr Brown'« ran j that

fire, so far as I can judge, came from. Murphy's. The Court then ad j ourned to 10 o'clock this morning.