Removing a Fence at Mitcham.
—A Question of Right.
— At the Croydon Petty Sessions on Saturday, Henry, James, and John Kemp, and George Hills were summoned for unlawfully and maliciously throwing down a fence erected round piece of land belonging to John Mead, of Mitcham.
— Mr. Ilderton appeared for the defendants, and Mr. Parry for the complainant.
— Mr. Ilderton said he thought he could save the time of the Bench. The fence had been removed by instructions from John Kemp, who had been in possession of the land in question, situate at Half-acre-row, for about 40 years. As the land was claimed by his client, the jurisdiction of the Bench was ousted.
— Mr. Parry replied that the land was held by his client under a good title, and there was no colour to the claim of the defendant John Kemp.
— Mr. Ilderton remarked that the course taken his clients had been pursued under the advice of counsel.
— Mr. Parry said Mead held the land under building agreement from Mr. Beetham. A bare assertion of claim was insufficient; it must be a colourable title. That defendants had had possession of the land for twelve years and over had no bearing on the case; there must be some colour of a title. It had been decided that, if the party used unnecessary violence in asserting their right, the question of title should be entirely outside the magistrates’ decision, and unless defendants could show some proof of title, the magistrates’ jurisdiction was not gone. Mr. Beetham was the freeholder, and had granted lease of land on which 14 houses wore about to be erected by Mr. Mead.
— Mr. Ilderton said he should show that John Kemp had been in possession of the land for years, and the argument about unnecessary violence was absurd
— Mr. Parry, continuing, said the fence in question was erected under the agreement at a cost of £10. The defendants met on the 6th, and pulled it down in an unlawful way, giving the fence away to other people. If they had wanted to assert a right they might have pulled down part of the fence or taken legal proceedings.
— John Mead, Fieldgate, Mitcham, grocer and provision merchant, was then called, and said he had taken a piece of ground at Half-acre-row, under an agreement from Mr. Beetham, and had promised to build 11 cottages thereon. He erected a fence round the land, the materials and labour costing him close upon £10. He had the fence up four months, and the ground was cropped, but had had no claim made to it anyone until now. On the 6th September he saw the fence at four o’clock in the afternoon, and went away, and on his return the fence had disappeared.
— Cross-examined.—The date of the agreement was 20th May, 1879. He gave notice to a man named Simons on 18th February that if had any herbs on the land he should remove them, he (Mead) was going to use the land. He had possession at that date, but the agreement was not made.—Abraham Akerman, Half-acre-row, Mitcham, stated that on the 6th September last he saw three of defendants on the land in question. Henry Kemp had a crowbar knocking the fence down, James Kemp had a hammer, and Hills had a horse buckling it round the posts and pulling them up. James Kemp was standing in the middle of the ground looking on. The fence was taken away by various people.
— Cross-examined.— He did not hear any of the defendants tell the people to take the fence away.—Thomas George Day, residing with Mr. Mead, was also called, as was P.-c. (376) W, the latter of whom said he saw a mob of people at Half-acre-row and saw James Kemp and George Hills engaged in pulling the posts up. He asked who had authorised them to pull the fence, and they referred him to John Kemp, who said he had authorised them to remove the fence, and told him not to interfere. This being the complainant’s case. Mr. Ilderton said he could show that the property had been in the possession of John Kemp for over years at any rate. He called Jeremiah Simons, aged 89, who said he bad occupied land under Mr. John Kemp for 15 years at Half-acrerow — part of the land in question—and Mr. Kemp had been in possession it for years. He had never been disturbed, although a threat had been held out which had not been carried out.—By Mr. Parry—He could not sell the crop on this piece of land. Mr. Mead had dug it in. He paid Kemp 2s. year for the land. He had it for a mere song for old acquaintance sake. The land was worth more money than he paid for it. He did not remember William Hornidge bringing an action of ejectment; but he did remember Mr. Nightingale building houses on the land, but this was done illegally.
— Charles Tanner, shoemaker of Mitcham, said he knew the ground fenced off by Mr. Mead, and he knew the land had been in John Kemp’s possesion for 30 years. He had never known any dispute to his title.
– Cross-examined.—He could swear that 12 years ago he sow John Kemp cultivating the land in question. His brother occupied a piece of ground on the land, but Mr. Kemp did not charge him any rent for it.—Mr. Edridge— What a kind person Mr. Kemp is.—He did not know that Kemp was ejected by Mr. Hornidge from this land in 1859.
— The Bench in the end dismissed the summonses, the case being out of their jurisdiction. Mr. Ilderton applied for costs, which were refused, Mr. Edridge reminding the defendants that there was more than one way of asserting a right.
Mitcham History Notes 