FENCE OF TREES AFFORDED SHELTER

Star (Christchurch), Issue 18016, 29 November 1926, Page 4

FENCE OF TREES AFFORDED SHELTER

SUPREME COURT CASE FOLLOWS THEIR REMOVAL. . Holding that he had suffered damage to his property following on the removal by defendant of a belt of trees which had served as a boundary fence to his land, Charles F. J. Gilby claimed from Arthur S. Wakelin in the Supreme Court to-day £l5O damages. It was set out in the statement of claim that plaintiff and defendant were neighbours with adjoining properties at Heathcote V alley. Their properties had been divided by a boundary fence consisting of a belt of closely planted trees, the trunks of which were connected by wires, thus forming a very effective division between the properties. The fence had served as a boundary between the properties for many years, and had been recognised as such by the owners and occupiers for the time being; and, further, the fence also formed a valuable protection and shelter to the plaintiff's field, as the defendant well knew. Defendant on August 23, in spite of protests by plaintiff and plaintiff’s mother, wrongfully and in wilful defiance of the plaintiff’s mother, and in a grossly insulting manner, trespassed on plaintiff’s property, and whilst thereon cut down approximately thirty of the trees and seriously damaged others, whereby the plaintiff had suffered damage to his said- pro perty and serious personal injury. It was denied in the statement of defence that the properties were divided by a boundary fence consisting of the trees connected by wires. It was denied, too, that any fence between the properties formed any protection or shelter to any part of the plaintiff’s property. Defendant had not trespassed upon Gilby's property, and he had not at any time acted in an insulting manner to plaintiff or to any person connected with plaintiff. At no part of the boundaries of the two properties was there, nor had there been for some considerable time, any sufficient fence. Inside defendant’s boundary there still existed a makeshift fence consisting of barbed wire attached in some instances to the trunks of some of the said macrocarpa trees, and in other instances to stakes. Gilby had assented to the necessity of having a fence erected between the properties, but, although he had at first consented to the topping of the trees, he had subsequently objected to both the removal and topping of the trees. Defendant had cut down the trees growing on his own property, but had left untouched any trees that were in any part upon the boundary. There was still a fence between the properties, and it was somewhat stronger than it was before defendant removed the trees. Mr Justice Stringer was on the Bench and Mr Sargent appeared for plaintiff, and Mr Upham for defendant. Ernest de C. Drury, licensed surveyor, said that when making a survey of defendant’s property at plaintiff’s request he was insulted by defendant and ordered off. Mr Upham: Could you not have done your work quite as well on Mr Gilby’s side before you were ordered off?—l had completed my work with the exception of marking the trees. Charles Horace Gilby, public accountant, said that plaintiff was his son. Witness went into possession of the property in 1923, but in 1925 transferred it to his son. The belt of trees with a wire fence on Wakelin’s side, constituted the boundary between the two properties. Witness had regarded the trees as his property being, as- they were, on his side of the fence. The wires were attached to the trunks of the trees. About the beginning of August, Wakelin approached him and said that he wished the boundary trees to be cut down. Witness asked Wakelin to make his request in writing, stating that he was not prepared to comply with it without careful consideration. He heard nothing further from defendant, who left witness in a very angry mood, stating that he was going to do as he liked. Tomatoes had been growing on two-thirds of the paddock on his son’s side of the boundary last year, but defendant until this year had not cultivated* his side. The belt of trees had afforded shelter to his son's.property from the sou’-west winds. Plaintiff, in the box, told of a heated interview defendant had had with him when cutting down the trees. Sarah Gimblett, one-time owner of Wakelin’s property, said that she had always regarded the trees as a boundary fence between the two properties. William Hopkins, land valuer, said that it would be twenty years before the shelter afforded by the trees would be available again. Mr Upham said that the defence was that the trees were on the property of defendant and that he was entitled to cut them down if he so desired. F. W. Freeman, C. W. Waite, and E- W. Olliver, surveyors, gave evidence for the defence stating that the majority of the trees had been on defendant’s property. Defendant denied that he had trespassed on plaintiff’s land to cut down the trees. He had an axe in his hands and was engaged in cutting down the trees when plaintiff approached him. Witness was not excited at the time. The court then adjourned so that the jury might visit the properties and sec the fence for themselves.