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-- PaulKlemick - 23 Aug 2007

R.M. COURT, MILTON

(Before W. H. Revell, Esq., R.M.)

THURSDAY, 13TH MARCH

WAYNE V. FRASER.

Mr. Reid for plaintiff, Mr. Downie Stewart for defendant.

On the case being called Mr. Stewart raised the objection that the defendant had never been a resident in the district although he had carried on a flaxmill therein. The business had been suspended for 3 months. He resided at Kaikorai.

Mr. Reid here called Mr. Fraser to give evidence as to his last usual place of abode.

Alexander Fraser said that he carried on business at Glenledi for 15 months or two years. He had a plant there in a shed about 20ft. by 20ft. The last time he slept at Glenledi was in a cookhouse there. He shifted the mill three months ago. He had been residing at Kaikorai since. He heard that the constable had pursued him, but he did not know he had a summons for him. He sold the mill two months before the new year. His brother had purchased his interest in the mill. The sale had not been registered. He had never carried on business where he now resided.

Evidence was then taken for and against Mr. Stewart's contention, and his Worship ruled that the service of summons was good.

The claim was for £93, made up as follows:-£20 damages to sheep yards; £10 for fencing; £13 for use and occupation of property, and £50 damages to buildings.

Mr. Reid said that the defendant had leased the property of Mr. Wayne under pretence that a friend required it for a market garden. It was used, however, as a site for a flaxmill. Mr. Fraser put up buildings for that purpose, and afterwards removed them. It would be shown that the buildings were not trade fixtures which the law allowed to be removed. The property was not let for trade purposes at all, but for a garden. The flax was not got from Mr. Wayne's property, but from a distance. The implied legal authority which gave a tenant power to remove trade fixtures would not apply in this case. That was why a claim for compensation for removal had been made. The sheepyards, for which £20 was claimed, were exceptionally good and well constructed. They would hold 2000 sheep. Defendant had used the yards for firewood. The fences on the run were exceptionally good, and would have lasted for years. They had been wrecked for 22 chains, and the timber used as firewood. Although Mr. Wayne had always been prepared to avoid litigation if defendant would reinstate the yards and repair the fences, he had refused, preferring rather to run the risk of a law-suit.

Frederick Wayne gave evidence bearing out the remarks made by his counsel in his opening address.

Godrey Foster gave evidence that he had examined the fences, and inspected that which had been destroyed. There were apparently 7 wires originally, but he only saw two, and they were not strained. The fence was useless; he did not know if it would stop a dray. It would cost more to repair than to put up a new one.

Jno. France, farmer, said that when he was in Mr. Wayne's employment it was his duty to specially attend to the sheep yards and fences. The yards were built of totara posts and maple rails. There were six compartments including the race. He valued them at £19 or £20. He was doubtful if it could be put up now for that money.

To Mr. Stewart-He had been over 30 years in the country, and well acquainted with the bush all the time. He knew posts which had been in the ground 25 years, and had known totara posts rot in ten years. (A rotten stump was here put in evidence, which it was said formed part of the yard.) Witness said that the rotten part was sap wood. It had been a round stick, while the yard was built of split posts. Heart of totara was almost indestructible.

John Waters, caretaker Glenledi estate, said he told Fraser it was a pity to destroy the yards, as Mr. Wayne would kick up a row some day. He said he would make the boys stop it. The fencing was sheep proof when Fraser took possession, but was since all gone.

Cross-examined-He took away one gate himself, and put it on another sheep-yard. He never took any wire, or wood for burning purposes. He never burned any flax and said he wished Fraser was in the fire. Fraser had told him he could burn tussocks in the gully after he had done cutting flax, but he did not fire it within half-a-mile of where the men were working.

Robert Aitken and John Purvis were examined as to the value of the fence, &c.

Edward Wayne said that he was in charge of the School Commissioners' property at Glenledi, and was in the habit of staying at his father's house there. He never used any timber for firewood but that which was perfectly useless. he did use some broken rails from the yards, but not since Fraser had been there. He saw portions of the yards used by Fraser's men.

Cross-examined-He had taken away posts to burn, which required to be removed, and had replaced them by others, but had taken no wire from the fences.

This closed the case for the plaintiff.

Mr. Stewart addressed the Court at length for the defence, and quoted from authorities in support of his various contentions. He submitted that the law and the merits of the case were in his favor, and expressed surprise that the plaintiff should have instituted such a suit. He submitted that no possible claim could be made for the £50, as the shed was not a fixture which could not be removed. There was no evidence to connect the defendant with any legal liability in connection with either the yard or fence but with regard to the third item he was not prepared to say that there was not for "use and occupation."

Thos. Featherstone said he had known the sheep-yards in question for many years. Eighteen months or two years ago he would value them at about a couple of loads of firewood, worth about 50s. They had not been used much for the last few years. The posts and rails were broken and lashed up with wire. The posts were what is called bastard totara. (The rotten post produced). He was that post there last night standing in the ground. There might have been a dozen more like that. Two years ago the fencing was repaired in some places, but as a rule it was very rotten. About 10s a chain would put up a new fence. He would give nothing for such a fence as that which now stands, any further that for the wire; that would be worth about £4 10s. He offered Fraser £5 for the shed when he was leaving Glenledi. About two years ago he asked Mr. Wayne if he would support him for the County Council. He said he could not as he owned no land in the district.

To Mr. Reid-He swore he did not tell Mr. Reid he never took notice of the yards and fences, and said he could not give a value of them. He was sure Mr. Wayne said he had not property. he had reason to believe that Mr. Wayne would state what was not true. He never stated that Mr. Wayne had robbed him. He never told Mr. Reid that he could not give evidence for Mr. Wayne, but would against him, because he had "diddled" him out of £63. The yards were not fit to hold sheep. The greater portion of the posts were rotten.

A. Rekowski, Joseph Pearson, and other witnesses deposed as to the condition of the fence and yards.

Alex. Fraser, defendant, said that he told Mr. Wayne before erecting the shed for what purpose it was to be built, and why he had taken the land. He told him distinctly that he was going in for flax-milling. The building was not fastened to the ground in anyway. Some time ago Mr. Wayne told him to clear everything off the ground, but subsequently said he might remain if he would sign a lease, which he refused to do. He was the first to direct Mr. Wayne's attention to the destruction of the yard, as he wanted it for his own use, and received the reply that it did not matter much. To this he (witness) said that if he knew of anybody touching it he would inform the police. He had never empowered anybody to touch the yard or fence. He had tried hard to get Mr. Wayne to consent to submit the dispute to arbitration.

Cross-examined by Mr. Reid-When he noticed that the yards were being destroyed, he spoke to his men about it and cautioned them. He had no idea where the yards went to. When he went to Glenledi the 22 chains of fencing were down. he repaired the fence by putting in posts and stretching two wires. The wires were well strained. It was not a fact that the wires werw so slack that they could be held in one hand. He did not put up the fence as a substitute for the fence of 7 wires that was there when he took possession.

Mr. Wayne's letter-book was here produced, and defendant admitted receiving three of the letters copied therein. He denied having received the other letters. On being questioned as to the contents of the letter he admitted having received, defendant stated that some of the statements contained therein were false. He never wrote in reply or informed Mr. Wayne that his assertions were contrary to fact. He thought it advisable not to put anything in writing for fear he might commit himself.

Re-examined by Mr. Stewart-Not a word was said about the yards being destroyed until he refused to take a lease. He never promised to clear out in a few days.

This closed defendant's case.

Mr. Reid said that the cases cited by Mr. Stewart referred to single acts committed by a servant against the instructions or without the authority of the master. He quoted authorities to show that a master was in general responsible for all the acts of his servants. Fraser had a number of men in his employ, and it would be a very easy way for him to escape from responsiblity by saying that he had not told them to do certain things they had done. The law said that a man was responsible for the acts done by his servants as his servants. Fraser had failed to supply timber for firewood after the first month or two, and they therefore helped themselves to what came handiest. At to teh plaintiff's right to recover damages for use and occupation at the rate of 10s per day, Mr. Reid cited authorities to show that where a tenant holds over after receipt of a notice that such damages will be claimed, it is for the Court to decide whether the tenant has acquiesced by holding over.

Judgment was entered for the plaintiff for £35-£20 on the first item on the plaint, £10 in the second, and £5 on the third, with court costs £3 2s, professional fee £2 2s, and five witnesses £5 16s. "The Bruce Herald", 14 March 1890.