MAGISTRATE’S COURT.

Gisborne Times, Volume XXV, Issue 1982, 18 January 1907, Page 2

MAGISTRATE’S COURT.

(Before Mr Barton, S.M.) FENCING DISPUTE. At tho Magistrate’s Court, yesterday morning, before Mr. Barton, S. James Lewis Perry (Mr. W. 0. Lysnar) sued George Snowsill (Mr. T. A. Colonian) for tho sum of £lB 2s 9d, claim for erection of boundary fonco. Mr. Lysnar briefly stated the case and called tho plaintiff. Jns. Lewis Perry, shoopfarmer, said lie owned portion of tho Waimata block, adjoining Mr Snowsill’s. The rivor was tho proper boundary, but an old fence lino, cutting across a narrow neck had always boon recognised by previous owners as the boundary. Witness wished this to continue as tho boundary, but defendant objected. ‘ This fence cut off about 1J acres of defendant’s land, which defendant wished to niako into an orchard. When defendant objected, to the fonco going across tho tongue of land witness saw him and told him that a fence would have to bo put up right around the piece of land, on tho boundary, as near to tho river as possible. ' It was arranged that witness was to find tho material, and defendant would do the labor. Witness put tho posts oil tho ground. Witness waited until about twelve months. Ho saw defendant during the interim and asked him when lie was going to fonco. Defendant said ho was not going to fence, and ho did not think that witness. could make him. Witness told defendant that the fonco would have to go right round tho land on witness’ side, and would cost a lot of money. Defendant’s reply was: “Fence away.” Witness then sent him a notice to fonco. Defendant did not reply. Witness erected the fence, and sent tho account to defendant. He did not receive any objection to the account. A second demand was made for payment. "Witness saw defendant and suggested arbitration. Defendant . said it wns simply the case of a rich man against a poor one. Witness asked him if lie could give any valid reason for not joining witness in paying for the fence. Defendant said he did not liko iron posts, and objected to everything connected with the fence. ’Witness then left' him. Witness claimed for £IS 2s 9d. Thoro was a deviation from the riverside boundary for about six chains to avoid slips. By Mr Coleman: Tho fence was cattlo proof. Ho was aware that three or his steers wore found on Mr Snowsill’s property. Ho thought tho cattle must have crossed tho rivor oil to Mr Branson’s, and from thoro on to Mr Snowsill’s. Defendant’s cattlo could not get on to witness’ property without jumping the fence. The cattlo could get on to the road by crossing back on to Mr Snowsill’s property. The boundary was not specified because there was only one fencing lino, which was understood by both parties. The wires wore perfectly new. He would be very surprised to learn that some of tho wires had boon in use for 15 years. ’Witness did not fonco off a patch of -tutu. Defendant asked witness to do liis share of repairing the old fence. "Witness refused, stating that tiio fence was insufficient, and that ho had no evidence that his cattle had broken down the fence.

By Air Lysnar: As far as witness knew, if cattlo crossed the river on to his side, they would have to cross back on to defendant’s land before they could get on to the road. Defendant offered to erect a new fence across the neck of J and at his own expense, but defendant objected. A. R. Watson, sheepfarmer, stated that he had examined the fence in question and found it in perfectly good order. He thought the wire was No. 8. If flood-gates could be erected across the river the best plan would be to fence across the neck. He thought tho charge was reasonable. -

W. H. Langdon, sheepfarmer, stated that the line was the best that could be got on either side of the river. Tile fence formed a complote boundary between defendant’s and plaintiff’s properties. Fencing across the neck would have been cheaper if flood-gates could ho erected. This closed plaintiff’s caso.

Council for the defence moved for a non-suit, on the grounds that an agreement with regard to a fence, under the Act, should be an agreement made between tlie parties after the service of the statutory notice. His Worship: They are not proceeding under tho agreement, but under the notice. Mr i.ysnar: That is so, your Worship. Mr Coleman: The plaintiff then does not rely on tho agreement in his notice of claim.

Mr Lysnar: We relied on the agreement for the boundary, hut on the notice for the erection of the fence.

Mr Coleman then quoted Judge Denniston’s summing up in the case of Morten v. Preece and another, re N.Z. Law Reports C.A., where lie states that an agreement should be made after the service of the statutory notice. Counsel further submitted that tho notice given by plaintiff to defendant did not comply with section 11 of the Fencing Act, on account of tlie omission of the boundary lines. When the fence was not erected on the exact boundary lines it was necessary that tlie agreement should he in writing. It would not bo necessary to have tlie agreement in writing where the fence was placed on tho exact line. Tlie defence would be a complete denial that there was ail agreement.

Counsel for tho plaintiff addressed the Court, dealing with the points raised by tlie defence.

His Worship said ho would deal with tho application for non-suit at the conclusion of the evidence. For the defence, E. B. Martin, Waimata, stated that he formerly occupied the property now in possessiou of plaintiff’. The fence across tho neck of land was used as the boundary. Ho found tlie flood gates effective. There was always more trouble with a river boundary fence than any other. Witness considered it a great advantage for plaintiff to have tlie fence on his side of the river. Witness considered that defendant could fence around tho neck on his own side of tho river for about half the cost.

By Mr. Lysnar: The fence was a complete boundary fence as between tlie two parties.

Wm. Johnston, Deputy District Land Registrar, produced plans of the properties in question. George Snow,sill, defendant, stated that about eighteen months ago he sent a verbal notice to plaintiff, asking him to send his man along to repair the boundary fence, which his cattle had pulled down. He received no reply. Later plaintiff said he would not repair the fence, but would put up a new fence on his own side of the river. Witness objected to this, and plaintiff said he would compel him to fence. Plaintiff had the fence erected, and sent witness the account. Plaintiff never offered to put up the fence across the neck of land at his own cost. , After counsel addressed the Court, his Worship said he would take time to look into the points raised, and reserved judgment.

UNDEFENDED CASES. His Worship gave judgment in the folowiug undefended cases:—Gisborne Harbor Board v. Henry Hyde,' £3 13s and costs; Margaret Ann Campbell v. Arthur Hogg, £3 12s and court costs; R. Hannah and. Co. v. James Moss (by consent), £2 Cs Od and costs. JUDGMENT SUMMONSES. There were only two judgment summonses, which wore dealt with as follows: —James Jones v. William Harold Gibbs, ,£ll 10s and costs, or 12 days’ imprisonment; Alfred 11. Gilman (Mr Blair) v. Ereatara Wliaitiri, £1 3s 4d and costs, in default two days’ imprisonment.