TRESPASS ON PRIVATE PROPERTY

Gisborne Times, Volume XXXVI, Issue 3985, 16 July 1913, Page 2

TRESPASS ON PRIVATE PROPERTY

THE REPONGAERE CASE

DAM AG FS ALLCAV ED. Yesterday morning, Mr 11. S. Floranee, S.M., gave judgment in the case of D. P. Cameron, \Vaerenga-a hika (Mr F. W. Nolan) v. Percy Turnbull (Mr L. T. Purnard) in which plaintiff claimed CP) damages for alleged trespass on his property at Regongaere, ior the purpose of shooting game. Tn the course of the judgment, His Worship said : On flip 23rd Juno, 1913, ihe defendant through his solicitors, paid into Court the sum of Is in satisfaction of the plaintiff’s claim in so far as it relates to any trespass of the defendant, and denied' his liability..So conflicting were the statements of defendant’s witnesses and contradictory to the plaintiff’s that the witnesses Goldie and W. Cameron were ordered out of Court at the request of Mr Burnard, whilst some of the late witnesses for the defence were being examined as to the position of the fences and the alleged cutting of manuka scrub on plaintiff’s property. By request of the Court Goldie and Cameron were recalled, and swore positively to the identity of the defendant and the alleged cutting of manuka scrub on plaintiff’s property. Mr Burnard based his defence on two grounds—(lst) The entire absence of trespass; (2nd) want of jurisdiction on account of a bona-fide question of title being raised. The evidence of the defendant’s presence on Lake Repongaere and the construction of the mac mao out of manuka send) and the giving of the permit by the witness Taki Kerikeri to shoot on the lake must be taken as proved, hut the permission of Starr and Davis or Hair brothers to cross their land was not conclusively proved to me. Where the scrub for the man mae was cut from and whether defendant went upon the plaintiff’s property at all on the dates in question is only to ho ascertained from a critical examination of the evidence on both sides. I am inclined to the belief that the manuka for the mae mae was actually cut from the plaintiff’s property by the defendant, or at his request,' but it is not .necessary for me to rest my decision on that fact alone. ’There' is no doubt in my mind that the defendant actually went upon and traversed portion of the plaintiff’s freehold without the authority of the plaintiff and in direct defiance of his explicit commands to the contrary. Trespass to land is looked upon by the law with great disfavor, and owners of land in possession are jealously guarded from the unauthorised intrusion of strangers. Mr Salmoml in his work on torts says: ‘The slightest crossing of the boundary is sufficient, e.g., to put one’s hand through a window or sit upon a fence.’ Nor indeed does it seem essential that there should be anv crossing to the boundary at all provided that there is some physical contact with the plaintiff’s property. The defendant practically admits that ho went on to the plaintiff’s land. Now as to the assessment of damage. It is a settled principle of our law, confirmed times without number in our Courts both hero and elsewhere, that whore there is a trespass to land and a frivolous or aggravated assertion of right is set up the Courts will not make a too nice assessment of damage. ’Pile fact of a person trespassing after notice or warning will ho construed as aggravation of the tution with the banks of France, Gerexemplary damages. Had defendant been prosecuted to conviction under Section 6 (e) of the Police Offences Aet, 1900. for wilful trespass he would I have Tendered himself liable to a fine not exceeding £lO, or three months’ imprisonment. As the costs of the action will be considerable, I shall deal with the matter as I. would if an information liad been laid, and allow £o damages with Court costs (£1 9s), and solicitor’s foe (£1 Is), and witnesses’s fees (£2 ISs.) ■