SUPREME COURT.

Wellington Independent, Volume XXVI, Issue 3149, 16 March 1871, Page 3

SUPREME COURT.

CIVIL SITTINGS, Wednesday, Mabch 14. (Boforo his Honor Mr Justice Johnston, and a Special Jury.) KOBGAN V. BICHAEDS. The Attorney-General, with Mr Buckley, for the plaintiff; Mr Allan, with Mr Cooper, for the dtfendant. Mr T. Buchanan was chosen foreman of the jury. The Attorney-General explained to the jury that the plaintiff and defendant wore neighboring farmers at Wanganui, and the action was one for trespass committed by tho defendant on the farm of the plaintiff. In 1862 the plaintiff leased some land for seven years from Mra Wilson, of Taranaki, and the lease expired in 1869. Another lease was then entered into, and was still in existence. In 1864, the dedendant's father wrote to plaintiff, asking for permission to pass through his land with a load of wool, and; plaintiff consented. After that the defendant wished to pass over plaintiff's land, and permission wus refused, whereupon an action was brought before the Resident Magistrate's Court, and the case was dismissed, as the question of title was raised, and the court had no jurisdiction. In Octobor, 1865, plaintiff gave defendant permission to have a right of way through his property, on tho understanding that no right was claimed, but aftenvardß this permission was revoked. In 1869 the defendant wrote to plaintiff for permission to take a flock of sheep through his property, which the plaintiff refused. Then defendant and his people rode over tho property of plaintiff, and in other wiiys destroyed tho land, and disturbed his sheep during lambing. The plaintiff then inserted a notice in the newspapers warning persons not to tressposs on the land after a certain date. Instead, then, of endeavoring to come to some amicable arrangement the defendant continued trespassing, and eventually the plaintiff placed locks on all his gates, which tho defendant removed with a chisel and hammer. This was tho reßulb of an action, in which tho defendant was beaten. On returning home the plaintiff stood at his gate nearest the road through which it was necessary for the defendant to pasß to get on to his land, and when the latter . camo up to pass through the gate the plaintiff refused him permission so to pass, unless he paid for the privilege. A verbal agreement was entered into on the spot, which agreement the defendant afterwards repudiated. On July 14, 1869, the defendant again trespassed on tho plaintiff's land, leaving open all the gates behind him. This was a oerious matter where sheop and other stock were enclosed, and was done out of mero bravado. The plaintiff did not ask for vindictive damages j he merely asked to have hie property protected, and to make good his

loss of time and other necessary expenses. On the 30fch July plaintiff saw defendant and a number of ladies coming to pass over his land. He then said he should not pass, and locked his gate, placing a hay cart close to tho gate to prevent his passage. The defendant still persisted in his attempt to pass until the ladies who were in his company dissuaded him from his purpose, but not till he had used violence and employed abusive language. On the suggestion of his Honor, tho Attor-ney-General applied for leave to amend the pleadings by inserting a claim for special damage on account of tho trespass having been committed, after notice to desist, in a violent and abusive manner.

After some objection on tho part of Mr Allan,

His Honor gave leave to amend the counts by alleging the trespasses to have been committed, aud in a violent and insulting manner, after notice given not to trespass, but left it open to Mr Allan to apply to reduce the damages to a nominal sum.

John Morgan : 1 am a farmer living at Newtonlees Farm, Wanganui. I leaso sections 8, 9, 10, 11, and 11a— 320 acres. The farm is correctly described iv tho declaration handed to me. I was in possession of the farm on 30th July, 1862, and was so in 18G9, and I took a new leaso from 7th May, 1869, for a term of ten years. The frontages on tho road to the north are not mine. I have only a permissive right to the road. At tho north' west corner of my land by the Kuitoke lake (gate A) there is a gate through which I am in the habit of going to Wauganui. My farm buildings are in the centre of the property. The farm is divided into nine or ton paddocks. My farm is about 3£ miles from Wanganui. The track through my paddocks goes on through the farm through tho gate near my hjinestead (gato B). There is a gully running through tho farm, which can only be crossed towards tho north-east cornor. There is another gate at the southern part of section 10, the boundary of section lla (gate C). Tho defendant's farm leads down towards the sea, and his laud is 600 acres beyond my southern boundary. Iv going to Wanganui tho defendant would have to pass through my farm. The defendant is one of tho firm of Richards. They occupy 3000 acres. In December, 1864, the defendant asked for permission to pass through my farm. The letter produced (letter A) was written by defendunt for his father, asking my permission to allow them to pass through my land with their wool. It is signod by defendant on behalf of his father. I understood that defendant's father was landlord, and the defendant and his brother were lessees. I gave him permission, and tho wool passed through my lond. Some time in 1865, before he had my permission, he came with his dray, and found he could not get through. He then unyoked his bullocks, and left the dray there for about a month. The case came before the Eesident Magistrate's Court at Wauganui, and was dismissed, as tho resident magistrate had no jurisdiction. The next day defendant came to me and gave me a written request for permission to pass through my farm, and I gave him ponuiasion, also in writing, to do so, he undertaking to close all gates, and in tho event of our cattle oi 1 sheep mixing he was to muster and separate them free of charge or trouble to me. The defendant is now chairman of the road board, and has taken steps to lay off a lino of road. He made another verbal application to bo allowed to pass through with sheep. I refused. He afterwards made a written application, which I also refused, on account of the damage likely to accrue to my ewes, which were just then lambing and were not in a fit state to bo driven about. Since that I froqnently told him I would not allow him to make a right of way through my farm j that I retracted all my former permission. He set up no claim to the road as a public highway. In 1869 I put an advertisement in the paper and also posted notices at my woolshed and at other places on the line of road through my farm, forbidding the right to pass. lam positive that the defendant and his people knew the purport of those notices. He said I might take my course and ho would take his. He said he held enough from me to justify him in what ho was going to do. I received a note from him on July 29, asking me to allow him to drive through some sheep that he had sold. On the 11th October, I locked some of the gates, and a few days after fche defendant came to me and said he was going to town, and asked mo to unlock the gato. I told him I would not. Ho said he would force his way through. I said that probably he was acting under advice, and he said ho was not ; that ho would take the responsibility .himself. I told him if he did ho would do it at his peril. Ho then rode up to the gate, got off his horse, and broke off tho lock. I was watching him and saw him pass through. I then went up to the gate and found a link in tho chain cut in two. He then went through my land towards Wanganui. I summoned" him and the case was dismissed. I then went home and locked tho gate close to the house. I and three hands then waited at the gato for the coming of tho defendant. When he arrived with some friends I told him the gate was locked and he Bhould not pass through. We then come to terms, on which he was to pass through with everything except sheop, until the Board should lay down a line a proper line of road. I at first refused to allow him to pass at all. I afterwards said I -would permit him to pass if he would come in a respectful manner and make application. He then said, '• Well name the terms, and I'll give up all threatening." 1 6aid I would take £1 a week for all the neighborhood. He demurred, and I said if it was worth anything at all, it was worth £1 a week. Defendant's wife then came up from their side on horseback to go to Wanganui. We were all at a standstill, and on an appeal from Mr Richards, I said it was not my part to interfere with ladies, and if her husband would stand back, I would allow her to pass through. She said surely hor husband would not take advantage of it, and he stood back. I allowed hor to pass through, aud then re-shut the gate. Defendant and his wife then went back to Wangunui, leaving it with his brother and Mr Murray to settle terms with me, agreeing to abide by any settlement they made. They said they could not pledge tho neighbours, and asked mo to give them till Tuesday, and on that understanding I allowed them to go through. I told them I would not have anything to do with them unless they signed an agreement, which I drew up and handed to Murray. He said he agreed with it, but he would have to get the consent of the other settlers, He brought it back about a week after unsigned, stating that his neighbours didn't sco their way clear to the terms. The defendant afterwards continuous up to July passed over my land with spring cart, &c , but not with sheep. I was relying upon their paying tho £1 a week all this time. I afterwards met him at road board meetings, and then he told me that ho was not bound by tho terms Murray Jand hie brother had entered into. On the 18th July, 1870,1 locked the gate again. He passed through my land on tho 14th, opened all tho gates, and left one open. My theep wore classified, and great loss is likely to bo tho result of mixing sheop, particularly during the lambing season. No person passed through my farm till tho 30th July. When I closed the gate on the 18th, I throw up ditches on each Bide of the gate I hod locked. I thought that as they had passed on other roads between the 18th and 30th, they had desisted from passing through my farm, and I opened the gate. On the 30th I was iv the paddock, and saw tho defendant and some ladies coming up, and I locked the gato. Ho came forward and asked mo to unlock the gato. I said I would not, and he said ho would break the g^te. I said he would have to bo a better man than I was to do it. He then struck at me with his whip, and hit my horse. He then forced his horse on me, and I checked him. Ho then raised his whip as though he would strike me with the brasshandled end. I seized the handle of the whip. He then spurred the horse round in a quick

manaer, and as I had hold of his bridle, it threw me some six or seven yardß. Ho then rode up to the gate, and struck the lock with the brass butt of the whip, and broke it in pieces. I then rushed up to tho gato, and ho tried to ride over me, calliug me abusive names. The ladies interfered, and I oaught up a spado to defend myself. One of the ladies got off her horse, and seized his reins. He then desisted, and thoy all rodo off through the gate. I saw nothing more of him that day. My son saw what waß done. On Monday, Ist August, defendant came again with four men. I was prepared for anything they might do, having my boii aud another with mo. I backed a load of hay right up to tho gate, fixed a ladder and a piece of quartering so as to form a clear square in3ido for action, and I fixed the prongs of the pitchfork so as to receive cavalry. They all rode up, aud Mr Green asked to bo allowed to pass through, I told them I would not allow tnem to go through, unless thoy went through what they saw before them. Wo talked a great deal, and they asked me to get out of the way. I refused. They didn't make any claim of right ; they said if they had more force they would go through, and they then retreated. On the Bth August I saw defendant in Wanganui. I noticed that his horse had lost a shoe. Next day I went and examined the gate, and I found tho lock had been broken and the gale unfastened. I noticed recent horse tracks of a horse with only three shoes on. They were evidently tho tracks of defendant's pony. I cannot positively estimate the value of damage done by the riding and driving over my property by defendant and his men. Cross-examined by Mr Allan : I havo lived on the farm since 1862, and havo been living in Wanganui sixteen yeai'B. I own section lla, and section 92 i 3 owned by a man named Picker, and the section next to 98a is owned by Richards. I have a permissive right from the owner of section No. 8 to tho road leading towards the Kaitaki school. Tho right is exclusively mine. The road through Wereroa is the nearest to town. I remember speaking to the defendant in 1862 about making a road through the swamp to No. 1 line. Tho plan you produce is not a correct plan of the district. I don't remember Mr Richards giving any money towards the improvement of the road running towards tho Kaitoki school. Ho never contributed anything towards the maintenance of tho road through my farm. The only contribution he made was a few loads of gravel. Tho only way he could get to the permissive road was by going over my land. The owner of that road, Mr Jebson, has never offered any objection |to the defendant using the road. When I took the farm there were only two people living on Richards' side of me, and they wont through my farm by agreement. I first gave Richards permission to go through my farm with bullock teams in 1865. Previous to the 30th July I proposod to defendant to pass over the land, but they didn't abide by the terms. I brought the action for damages sustained on the 30th July, but I had suffered considerable damage previously. I told defendant that I had withdrawn the permission to go through my farm. I expected him to pay me £1 per week until the inhabitants lower down got a road formed. On the 30th July the defendant didn't trespass further thau smashing tho lock into atoms. I told him on the Ist July I should shut up tho road. Edmund Richard Morgan : I am Bon of plaintiff. I remember the 14th July last year, when the defendant passed through our land, in company with two persons. On the 30th July the defendant passed through in company with two ladies. When I came up to tho gato the defendant was using very abusive language towards my father. My father would not allow him to go through, because he came in a brutal manner. Tho defendant then went away. I was present when t,ho defendant came on the Ist August, in company with some other men. I was present when the defendant came up, in company with Mr Murray and his brother. My father would not allow them to pass through.

This was the plaintiff's case,

Mr Allan said it was evident throughout that whether there was a right of way through the land or not, permission had been asked for and granted, and tho question for the jury to decide was whether the permission was revoked or nofc, and whether the plaintiff is entitled to any damages. He would call Mr Richards to give his version of the matter.

Louis Charles Richards: I occupy land conjoiutly with other people at Wanganui. I know the land of the plaintiff. The nearest point of my land to plaintiff's is about two miles. In Oetobor, 1865, plaintiff gave me permission to go over his Jand, and I had used the road previous to Morgan taking possession of his land. The condition of the permission was that I Bhould close all gates, and muster any stray sheep or cattle caused by my negligence. About twelve months before the 30th of July last I had been stopped by Morgan. I requested him to open the gate and let me through. He refused, and I said it was my only way to town and I should have to go through. We had a case in Court in consequence. On the 18th October, 1869, 1 wont through plaintiff's land. That is the cause of this action. On the 30th July I wanted to pass through his land and I found his horse backed up to the gate. I told him I should have to go through, and I hit the lock with my whip. I don't know whether I broke it. I saw it hanging on the staple. Plaintiff then " collared" me and endeavored to get hold of my whip, and the bridle of my horse. He then raised a spade and brandished it over me. I said, " surely you don't mean to use such a weupon," and then the plaintiff, who was very much excited, cooled down. I found I couldn't open the gate without committing an assault, and I desisted. I have been on his property once only since Ist August, and on that occasion we spoke friendly and he directed me the road home.

Cross-examined by the Attorney-General : On the Ist August I crossed part of his land with five men. We saw the gate barricaded. I don't remember whether I said I would break through if I had more force. I did not go through his promises on the Bth August. I did not put up a*, the Red Lion within a week of the Ist August. I cannot aay whether I called on Mr Koon, the plaintiff's solicitor in Wanganui, on this matter. I remember Mr Keon saying he had a letter for me about this matter. Some time after I receiTod this letter. It had been misdii'octod. I cannot say whether I was in Wanganui more than once during the week following the Ist of August. I was not in the habit of riding any particular horse. I can't a wear that I passed through the toll-bar on No.l lino of road on the night of the Bth Aug. riding a pony with only three shoes on. I remember being summoned for breaking a lock. After the case was over, I returned and found plaintiff at one of his gates, and ho refused to allow us to go through. I never saw in a newspaper a notice not to trespass on plaintiff's ground, nor did I sco any of the notices posted on his premises concerning the road. I don't remember whether I passed through his premiaos during July with two ladies. I swear that I never left a gate open on his premises. I recollect Mr Keon saying to me that he had instructions to sue me if I didn't desist from using the road. I did not say that I would not desist until the matter was settled by a court of law. On no occasion have I said so. I told plaintiff that I had sufficient authority, both by advice and by the docision of the Resident Magistrate's Court to insist on my right to pass through the land. The Magistrate said every man was king of his own castle, and my solicitor advised me that I had a right to use that road, as long as I didn't assault him. Immediately after the case in Court, I went to the gate on my road home, and plaintiff refused to allow me to pass. I did not authorize my brother or Mr Murray to make terms for mo. Mr Murray nevor asked me to sign the agreement with plaintiff about paying for the use of the road, lam chairman of the Road Board, which has been in existence a little over a year. A line of road has boon surveyed. Wo had an aci o igo rate of Id an acre. The plaintiff has said that if the Road

I Board would take a road in a certain direction we could have tho laud by giving compensation, but we had then entered into arrange-' mentß for another line of road. Re-examined by Mr Allan : I havo not been through plaintiff's land since I spoke to Mr Koon about desisting, and we are going to make a road in another direction as soon as we get the means. Mr Allan then addressed the jury for tho dofendant. Ho did not intend to support tho pica of leave and license, and the case now assumed the phase of one of trespass ; and, acting under the advice of his solicitor, as tho defendant had done, it waß their duty not to mulct him in heavy damages. In this case the road was useful to persons living to the south of plaintiff, and was much nearer to Wanganui than tho other roads, which they were compelled to resort to if this one was closed. A portion of the road was uaed by permission by tho plaintiff himself, who was quite willing to take advantage of tho generosity of other people, in using n right of way, but was not equally williug to obligo his more helpless neighbors, The plaintiff, a cautioUß, careful man, had given permission to pass vehicles, horses, &c., up to a certain time, and suddenly he locks his gates without previous warning of any kind whatever. In the strict sense of the law that was all that was necessary aa a revocation of the permission, buj the defendant had consulted his legal adviser in tho matter, and had been advised, wrongly of course, that he had a perfect right to pass through the gates on plaintiff's property, in consequence of the written permission in hia possession. Well, the defendant had gone and broken the lock of the gate. No damage had been done to theplaintiff'sland ; all the damage he had suffered was in having a few sheep disturbed, and ho could not expect any very substantial damages on that ground. Then again his Honor bad pointed out to the jury the extremely harsh anl unwarrantable manner adopted by tho defendant in asserting what ho considered to be his right, but the plaintiff had been equally excited and violent, and had indulged in quite as harsh conduct as that attributed to the defondant. The plaintiff had suffered nothing in feelings, and had suffered in no way at all in material property. Having touched upon these few points he would leave the case with them. The Attorney-General said his learned friend had endeavored to raise a defence on the bad advico given to the defendant by his solicitor, and had made his defence ad miserioordiam. They had heard the evidence of the defendant, and he was quite sure that they oould not receive it as being worthy of credenco — as the evidence of a man whose veracity was not on tho most trivial point to be trusted ; it was tho evidence of aman whowas endeavoring to shield his pocket at the expense of his conscience. He had fenced with tho truth on all matters where the telling of tho truth was at all likely to endanger his cause. Hi<j learned friend had told them that because we were all fellow workers in a new country that we should sacrifice the privacy of our family circles to men of Mr Richards' stamp ; that because a man chooses to purchase 3000 aore9 of cheap laud without any frontage that lie is to havo the privilege of damaging the valuable property of men like the plaintiff, land bought at a high value, und improved at great expense. Was that likely — was it reasonable ? Ho would not trouble the jury about the various accusations previous to the entering into tho agreement, but he would say a few words about that. Did they think it likely that if the Magistrate had given them the advico said by the defendant to have been given that they would havo found a cautious man like plaintiff throwing himself in the teeth of the law by stopping up the road as ho did. Certainly not; therefore the defendant must have been endeavoring to mislead the jury by twisting the evidence to further his own case. Well, they had heard what sort of conduct the defendant had adopted — that he came up to the gate and had knocked tho lock off with his whip. He did not wish to show that tho defendant had resorted to riotous conduct — it was sufficient for him to show that his conduct was insulting, for, as he bad stated in opening hi» case, he did not seek to obtain vindictive damages ; ho merely asked for moderate damages. On the part of the plaintiff ho could assure tho jary that he was not asking for exorbitant damages. If he (tho Attorney- Q-eneral) had been severe in the course of tho case, ho took that to himself j it waß nofc at tho deairo of the plaintiff; because he could not help making known what his own feelings were in respect to tbe manner of tho defendant in giving his evidence, and as to his whole conduct throughout tho case, He thought ho had pointed out quite sufficient, in addition to what tho jury had heard for themselves, to convince them that the plaiutiff was entitled to then verdict. His Honor having summed up, and reviewed the evidence, pointed out during the course of his observations that tho jury had no alternative but to award the plaintiff not merely nominal damages, but damages commensurate with tho unjustifiable ond illegal violation of I the plaintiff's property, and the utterly impudent conduct of tho defendant in persistently endeavoring to carry out his unlawful purpose. No doubt the defendant had been wrongly advised, and for his Bake that was a matter to be regretted. Possibly ho might havo ground for action against other persons, but there was only one view of the present case to be taken by the jury. The jury returned a verdict for the plaintiff, damages £25. The Court then adjourned until Friday morning at 10 o'clock.