ALLEGED TRESPASS.

Wanganui Chronicle, Volume L, Issue 12145, 16 April 1908, Page 7

ALLEGED TRESPASS.

SUTHERLAKD v. CAMERON,

MR. JUSTICE COOPEK'S JUDG- ■■' MENT.

t ?- c foA lowi21g 1S ths judgment of Mr Justice Cooper in, the above case recently heard at tho Civil Sittings of the Supreme Court, when Archibald Smith eiland claimed damages from Charles Cameron for an alleged trespass upon The property o:f the plaintiff, known as Oraijploa Farm.- Mr. Hutton c-onduct-eel the case for the plaintiff, and Mr Loheii appeared on -behalf of thie defen-

The trespass alleged, said Mr. Justice Cooper, is upon that'part of the term consisting of sections 215 and 2ifl left bank of Wanganui River. The entry of the defendant in, and his passage through, th& section is admitted, but he claims that there was and is of right a common and public■'■'hWiwav over section^ 215 and . 245 for alt purl poses,. and that the alleged trespass was a ,i Se ? s oi right by the defendant of |uch. highway, faction 245 is bounded by the Wangaehu River. Alternatively, he claims that he has, .as one of th« household of-his father, Charles Cami eron, senior a right of way, his father claiming such, nght of. way through one James Baldwin owner in fee simple of a block of land known as the Whaka™:J^# P» opposite^baaik of the Tv angaehu , v ßiver. Charlesi ' CamerohT senior, is a-tenant for life: under Bald! win of that ••portion of the Whakawau Llock .fronting the Wangaeliu River, immediately opposite section 245, and 't is alleged that Baldwin.-had acquired and enjoyed a rightfc.of way from a ford across the river from WKakawaii to the bant of sections 245 and 215 to a public road known as Number 2 lin^ extension, and that such right of way Had been enjoyed uninterruptedly fo<a period of more than 20 years before the commencement of this "action, and before the issue of the plaintiff:s certificate of.title. The defendant alleces. that m using this right of way he did so under the, authority of his father. ■ • JNpw, nrthe. present case, the erection and maintenance of over 40 years of a Sat? -ji, a llo«sehold paddock on the ..plaintiff s. property, a. gate which during certain seasons has been, fastened although not always effectively, rebuts the of the animus dedicandi of _any public highway throuo-h that paddock. The fact that the''lino or fence on the boundary.of section 24..", and sections 210 and 215 intersected the track and that a .gate was placed on the track, manifestly ■ffor the convenience of the owners of the property and that up to this point all the cost of formation of that part of the track wliioh was formed! within section 245 is also evidence rebutting the presumption The circumstances that some pubho money was paid ■to ' Sutherland lor the formation of the road through section 210 is not of itself sufficient t> establish a public highway through Sutherland's property: It is more consitent with an intention, to create a public (highway. Certainly, in my opinion, it_ cannot be evidence supportinothe existence of a public higihiwaiy to a greater distance than to a point endingthree chains from section 245: This s not what the defence amounts to. The defence, is that a public highway exists irom the ford to No. 2 line extension, and the.trespass -complained of is the admitted act of the defendant in passing through section 245, as well as through section 215 from the lord to No. 2 line extension.

A somewhat significant- fact in this connection is that the defendant and many of the settlers in the vicinity in 1907, and1 before the date of-the t-eu-pass complained of in this action, presented' a petition to the Pnrii.a, Road Board (within wihos© district the plaintiff's land is) and to the Wano-anui County Council asking these- local bodies to. open a. road through the ■plaintiff's property, the petition stating that ''the said road if. opened for traffic would he a boon and benefit to the whole district." The 80-a-cl Board held a meeting to consider this petition, and at this meeting many of the petitioners, including, tli© defendant, were present. Ihavplantiff was also present, and after hearing: the petitioners, the Board passed a resolution declining to take any steps as they^didl not consider there was a public road through the property. "I have upon the evidence adduced before me, come to the same conclusion. The claim that Baldwin has a right of way through the property is not, in my ■opinion, established. The acts of interruption which rebait the presumption of a dedication are sufficient to rebut the presumption of any such easement as is claimed by Baldwin, and under which the defendant in his alternative ground of defence- justifies his entry upon the plaintiff's land. I therefore am of opinion that the defence has not been proved, and I p-ive judgment for the plaintiff for 40s damages!' with costs on this lower scale, and £15 15s allowance for a seconcH'aiy, together with witnesses' expenses and Court fe°R to be .ascertained by the Registrar at \Vatiganui.