MILTON ROBERTS v ANGELLA GEORGE et al

'Ib~' , .. .'. , ::'AINT VINCENT AND THE GRENAI >INES " ' " I, "~I ' ,ffCt " 0 fA v ~IjCE.. 4>~f:r ..../h'lfl) I IN THE HIGH COURT OF JUSTICE ,., ,I r SUIT NO, 242 OF 1983 I: •t t , BETWEEN: ~-,; , 1 " MILTON ROBERTS PI,A , . AND , I ' I " ANGELLA GEORGE 'I' NATHANIEL THOMAS " DEFENpANT~ , , , O. R Sylvester Esq. QC. and Ms Nicole Sylvester for the plaintiff. t CD, Dougan Esq. QC. and Ms. Andr<:a Young for the 3efendants , I I '( ,. 20th October. 25th No~ember, 1997 Delivered 9th December, 1997 , I .\. ! • i .~ J , '\.r JUDGMEN'U ,It , i , } ,­ , 11 BAPTISTE 1. This is a case in tre~ass brought by the Plaintitherein it is alleged that or a~ut the 21 st of September, 1983, the deftindant:i, the' r ~erv~' ,sland agents nrongfully ente ed f'le:plaiptiffs land , ' p and cut down four ma;lOglH y tlees and damaged thirteen growing mahog , ytkes whereby the ,. plaintiff suffered loss and damli6e. Being .aggrieved, the j'laintiff has ppr()ac~ed the court , • I seeking damages, injunctive relief and further or other relief. , ! t ' I Wendel Roberts, the son of l\1ilton Roberts deceased, who was substituted plaintiffjn this suit, tendered in evidence a cerlifie4 copy of Deeq No. 2202 of 1983 tExhi ·1 WR I' 'dated 13d} October 1930. The parties to the Deed being Samuel, George as Vendor d WHtm I R~berts .~ , purchaser. By this Deed the J endQr conveyed to Miltpn RObel1s two parc 19 qttand situateQ. at . .. I • Lowmans. The land was bu ted and bounded or or t?wards the ~orth ~y ro~,on or toware ~ . the south and east by lands ofthe vendOi and on or to~d.s the west by Ian SofNickie Jacfson. I ,. . . r' I Wendel Roberts testified that r.is father overlooked th~ land with a passion ,and .the land was lik~ restricted area. As far as possible no one could ~o ~n~tbe hind in ~articularJ to deplet~~ahogany trees. He further stated that on Septemq~r 21, 19831 pe' saw people on ~e land cutting' trees. They cut four large mahogany tr :e,. That was strange $0 him for no. one trebas~ed Ibe land. T~ persons on the land said they were sent by Angella Ge+rge. the first-d.~d deferdant. IThe trees r'r f .-' , 'f 2 ' I' • I I " were cut by Nathaniel Thomas, th~ ,ccoml named dekruiant. The trees WIe sawed into im,,!S and removed. The plainti IT al"" JCpoSL'<l to further CU1"gS of trees.i': 1984 and 1996. ' . , According to the plaintiff he got married in 1973 and ;n that year his fathe ~ent Wf)0t 'outSers to .­ cut trees to make some furniture as a wedding gifUo him.' I ' , I I , I I , , In cross examination the plainti ,1' deP9s6d that he knew the land that 'belan ed tb Samuel Gel 'ge and that his father bought two lots from Samuel GeOIge . .The plaintiff re ealed that he,did not f! . , know the size of the lots. The lots were not surveyed and none of his fa rls land was actuaIfy I , , I surveyed. , " . : I It must be remembered that we are dealing with a case in tT spass. l'b ~u~stion Vljhich c~me's ~~ , mind is how then does the .plaintiff know that the land from which t e tree were cut belonged to his father or was in th:e possession 0; hIS father. When:th~ plaintiff wa's're- . arnlned he said'~ , ,. , t It.. . ~ • I I •. i , ! ; r liThe two lots of 'and which helong to my fa!. ~r is' feaqily idepti ' able bec~u8e " ~ " • . , ,II they are in bush covered with mahogany trees. The s~rrounding I clear," . t : At the close of the Qas(~ for t,le pllintiff leart.ed Q1;leen'~ Counsel Mr. :d i~ basically ( ,. . ) , . ou~an sulJ",ltted as I I. follows: ,

1.The plaintiff has failed to m1ke a case in the court for 1he defendant 0 ~wer. • 2, The one witness has not established the plaintiffs case to make co : r hold on a balance of! I , . ',.' probabilities that th" defJndant trespass4d on the land. , :', I

3.The land described in ,I.e p:uintifl's deed ~s a land will, two IUlS. Co~ cannot say if , . I those lands were two f mall lots. The sol~ witness was unable to lell!i~e bo1lrt the size of his father's land. Hence he is umlble to tel!. court that any mahogany trees ~~~e cut yom' 1 " his father's land. ,f. I' "

4.One would have thoughtthat the plaintiff wou!~ ha~b had /tis surve or. This i~ ~nt:al. A surveyor should be brough: to stllte that the ~d was th~ I~d of e d~d :la1nlJ~ . \

5.An action in trespass is an action against posse~ion. ' This is ;.caSe· oJruership also, not merely in trespass. , Other submissions were made by lrarned 'Queen's:clounse~'to:whil?h I need t refer T).ow~· ., . ! " I I r! ~ ",.. fhe law is that trespass to land COJ.lsists in any u~ustifiable intru~ion by 0 ~.persoh upon lAnd in L I l . .' the possession of another. The, tort of trespass lo,lapd: oper'lles to ,I> 9tect irtcrcMs iI til\' I • I I . I,,: possession of property and the right to immediate possession th( reof. Co ' ently, a c1ail In 'f tort to assert such an interest will commonly raiSf= que$t~o[s of tit1e to pro , Both counsel in their addresses wete in favour of a ~urvey be;ng I lone. IIt 'Vas or~er~d \hat 'a survey of the land shOUld be done. The survey was i~deedd~ne by CoJinIAl~' Jerllice?ci", land surveyor. Mr. Alexander testified that the latiu 01 MIlton R. ,oe:rt~ dec~d was 7,sbl square feet in area. During his observations approximately c ~hl tr s *,ere noted to be • ' .. , .\' previously felled: ranging in girth size of between 1 foq~ to 4 feet I o~l of hi~h wer~,~~Jl1'fany,' trees. He explamed that the land had mostly mah~any trees and that the land w~) "n tush , . r . , A., except for the cut trees. •\n area was cleared because 0,:...' the cut trees..., ' ~ ,-'" , . I I . .t I . I ( Learned Queen's Counsel Mr. Do .!gan SOUghtlo obtain from the survey t r eyidenc e as to howl '. long ago the trees we¥'e (..It. A fter saYing h~ di not know, when a year w' sJ,ggec;ted to him he ) , I I • ' " said " in my opinion the :rees were (;ut maybe a year ~o." : r I . " II Does the evidence of the surveyyr lead to the conclu~on or mpPQrt the e for the p, aintiff that ; . on September 21, 1983 the secon'" n ...med defendant Fit the j'1stanCC ofth first named 'defendant , . trespassed the land and cut four farge mahogany treFs? h,' ~e tr~es we e cut a ypar ago, that would not advance the case for the plaintiff for we are dealing, with ~ matter ?CC Irring}h i September 1983. At its I ighest the evidenc~ of the surveyor h suppo . ve of th., ""*: f~r-tJll plaintiff in so far ~ he expJai led that the land of Milton Roberts dccease<thF 4l0stly maho~any. .. trees, that the hind was,in bu ih except for ,the cbt trees and "n area was cl ed because of the ~u~ trees. This piece of evidence is consislert with1what the plaintiffsaid fNh n he ~~ e~amineo, in , . . . ., chief and in re-examination, " '. I '. . r ' I .,, The defendants wer~ not called to give evidence. 'Deed ~o. 1016 of 199, was tend~r~ through " the plaintiff as exhibit "WR 2".' This deed was r.a~e between Dani1 George ~d f\ngeJla Stewart, his intended wife. In the deed Daniel conve!e~ to Ang~lIa a parr.lofl~d i~-Lown!s:~ Hill being one and a half (1 L'2) acres in area, bOjed Qn the north byt'the ,LeeWard High " and the public road, on the s:>uth by a gutter, on the , ..ast by lands in the 'os~ession ~fWanford Sutherland and Ephraim Hackett on ~he west by l~d.s in' the p~ssession : f WilttJDIR'.~b~rts and .~. I , tl I. • one Allen and Cleve Warner. . . ," I , ,. i The plaintiff deposed in cross ex:,mlnation that he knew the IIIIlL of Ang~lia doorge at Low ,ans but did not know the quantity. f I . . I . t )' , ! t fl .. 'I ( I , j In answer to a question from learned Queen!s Coun~l Mr. Do~gaI1,' in j''os:;-examination. the t . surveyor stated: "I did Jot measure the lands of Angella George. Those I ds app, :ar to be fnirly expansive most ofthe land was in bush." '\ In re-examination by leari-ted Quee" Counsel Mr. Syl ,.!ster be ~ id; " ,would not know the .\' extcnt of Angclla Georgc land. ' i.• fl , I . ~ l', - , , It i . f.. The deed indicates that the land is 1 112 acres in area.; There is no' evic..en that mahogany ~ees ,- , • 1_ are planted on the l~d. The cc urt will have to find o~a balance of probab lities that the piaintirt ' has made out his case against d.e defendants .. 1 i. "." , J i , .' J I I ,I "The standard of prl)of required in civil cases is generally express d'a~ proof~nl4the I , balance ofprobabililies. ~flhtJ evidwlce is sucJt that rhe tribunal c 'sar" ":,e thinl-: it more probablc than not,' the hllrden is discharged, hu, if the proba ilitits are equal it is not" (See Phipson on E~denee 14th editi01 parag _ph 4- -; 38, P ge 78. 'I " 'r I have carefully considered the !evidence of th, Plaint~ff and the surVeyor. Ii find tho ~v Jenfe~;' the surveyor to be materia'ly confirmatory of that of~e plaintiff. On the ~vidpnce I h<tld th~t)~ is more probable than not t} at the trees were cut ~n the I~d of thelaintiIf. I accept, the- I T . , ' evidence of the plaintiff .:ha: on the 21 st Sept~mber~ 1983 the s~cond-n ed ~fendant at f'le instance of the first named defendant 1respassed upon the plaintiff's' 1 d and, cut lour lar,ge " , r' f " \ 't • t mahogany trees. • f ' . \ ,,' The plaintiff put his .special damages at $1,200.00, ~ne Illflhogany tree b ing $300.~O. Leamed Queen's Counsel, Mr. Dougan submitted. that the p1t;ntiff could not tell e court how he came by the valuation of the trees. K 0 agriCUltural tariff was aee~ and-the plain . ff was p';'tttng a gur I figure. I ~ I ' f The plaintiff's evidence in examinatio~ in chief'ras: . "I ~ claiming the .;~alue o~ th[ ~;e:~. The .~ value is $1,200.00. One tree is $:,tOO.OO,EC." II) cros~ e~amination he sai~: "I did not,check the , , ' I I' I , agricultural tariff in 1983 _ I di J qA measure the trees ... "I ,; " It is trite law that special damage m~st be pleaAed, Partic'ularis~d and pr cd ~trictly.Since Hie burden of proof is on the injured party the defendan~ is under Ino (~bliga ron to call 'e'-'idillce,ill rebuttal. It appears to l1e that, adopting the submission of the respo~den in the. :ase of Grant v Moti/al (1988) 43 WIR 372 at 375: "the essential issue ... was whethe; th~ '1~,Oftj e,evidet,5t: was such as to satisfy the undoubted rule with res,pec~ to a ch m for sp~ial damage. fhe, • evidence adduced hr!d to be reHab]1 ; 1d oil an ascertain; ule ba&is." .\. ,, .~ "\ A , ,. I ,­ , .,I I , · 1 'I \. Is the evidence of vahlation s~ unrc\ Ii.H)~e lha~ the claim ,!.or <;peCial . :t'llage, should he disn1i~cd') • It appears to me that the eVJ(,enee of specIal damage; was not reall:,' challenged. ~ha; \vu.s t. , " . explored by learned Queen's Counsel was its probativ~ I(alue. Th(f cyid~n¢e of the plai.1tiH '4\'as uncontradicted. Further I do not cOl1sider him to be a.witness who 'ac~s credibility. In the clfcumslances of the case, I ho d th'u the p,ainl'rf lias established IllS enli~lcment/LO ~hl' SPCCI;U 1 damage claimed of$l,:!Of.OO. , . ' ;, J I .' " , . II , I ' I A person in trespass is entitl!d til recover danages even though he Ilds sustdined no ac',uaJ loss. If .. a trespasser cuts down and remo cs ornamental timber. the ( wner may in an action f( r In~spas!> . recover the value of the trees whef ~ anding. (See Clerk 'nd L,indsell on Torts 17th 'edition paragraph 17-64. page 872). In the II1stant case. the plam:ifT puts the vlllue of the trees ,II r $1,200.00 ~ l . . - f .'{ Apart from the trespass in; 981, the plaintiff also alleges a trespass in 198 f and .one in 1996. III 1 I the circumstances an injuncti( n wLukl be in ord,u. I enter judgment for the plaintiff and make the iol,lowing orders: r , , 1. The defendants are to pay the plainti(f the Sl,lm of $1.200,00 in' special drunages and " $1,200.00 in general damages.

2.An injunction is grant.,,: to restrzin the defe~dants wheth~r by themselves Or by th~r , i servants or agents or otherwise howsoever frdm entering th~ plai1tiffs land and cutting .­ down the plaintiff's tre(:s ·.)r from doing or exer~ising any acts of o~t'fship JtfreoJlt , . I' I 3. Defendants to pay cost to b~ taxed if not agreed. .r\ U~~ ~ \ . f ,)avidson Yel vi Bapti~te , Jligh 0 11'1 Jud 'e (Ag.) , \' , t , I 'p ,

I, “~I ’11 ‘Ib~’ , .. .’. , ::’AINT VINCENT AND THE GRENAI >INES “ ‘ “ IN THE HIGH COURT OF JUSTICE ,., ,I r I SUIT NO, 242 OF 1983 I: •t t , BETWEEN: ~-,; , 1 “ MILTON ROBERTS PI,A , . AND “ ANGELLA GEORGE ‘I’I NATHANIEL THOMAS ” DEFENpANT~ , , , O. R Sylvester Esq. QC. and Ms Nicole Sylvester for the plaintiff. t CD, Dougan Esq. QC. and Ms. Andr, I I ‘( ,. 20th October. 25th No~ember, 1997 Delivered 9th December, 1997 , I .. ! • i .~ J , ‘.r JUDGMEN’U ,It , i , } ,, BAPTISTE 1. This is a case in tre~ass brought by the Plaintitherein it is alleged that or a~ut the 21 st of September, 1983, the deftindant:i, the’ r ~erv~’,sland agents nrongfully ente ed f’le:plaiptiffs land , ‘ p and cut down four ma;lOglH y tlees and damaged thirteen growing mahog , ytkes whereby the ,. plaintiff suffered loss and damli6e. Being .aggrieved, the j’laintiff has ppr()ac~ed the court , ,ffCt ” 0 fA v ~IjCE.. 4>~f:r …./h’lfl) , I ‘ seeking damages, injunctive relief and further or other relief. • I , ! t ‘ I Wendel Roberts, the son of l\1ilton Roberts deceased, who was substituted plaintiffjn this suit, tendered in evidence a cerlifie4 copy of Deeq No. 2202 of 1983 tExhi ·1 WR I’ ‘dated 13d} October 1930. The parties to the Deed being Samuel, George as Vendor d WHtm I R~berts .~ , purchaser. By this Deed the J endQr conveyed to Miltpn RObel1s two parc 19 qttand situateQ. at . .. I • Lowmans. The land was bu ted and bounded or or t?wards the ~orth ~y ro~,on or toware ~ . the south and east by lands ofthe vendOi and on or to~d.s the west by Ian SofNickie Jacfson. I ,. . . r’ I ‘” ; \ , • I •• Wendel Roberts testified that r.is father overlooked th~ land with a passion ,and .the land was lik~ restricted area. As far as possible no one could ~o ~n~tbe hind in ~articularJ to deplet~~ahogany trees. He further stated that on Septemq~r 21, 19831 pe’ saw people on ~e land cutting’ trees. They cut four large mahogany tr :e,. That was strange $0 him for no. one trebas~edIbe land. T~ persons on the land said they were sent by Angella Ge+rge. the first-d.~d deferdant. IThe trees r’r f .-‘ , I , ‘f 2 ‘ I’ • I I “ were cut by Nathaniel Thomas, th~ ,ccoml named dekruiant. The trees WIe sawed into im,,!S and removed. The plainti IT al”” JCpoSL’. , According to the plaintiff he got married in 1973 and ;n that year his fathe ~ent Wf)0t ‘outSers to .cut trees to make some furniture as a wedding gifUo him.’ I ‘ , I I , I I , , In cross examination the plainti ,1′ deP9s6d that he knew the land that ‘belan ed tb Samuel Gel ‘ge and that his father bought two lots from Samuel GeOIge . .The plaintiff re ealed that he,did not f! . , know the size of the lots. The lots were not surveyed and none of his fa rls land was actuaIfy I , , I surveyed. , “ . : I It must be remembered that we are dealing with a case in tT spass. l’b ~u~stion Vljhich c~me’s ~~ , mind is how then does the .plaintiff know that the land from which t e tree were cut belonged to his father or was in th:e possession 0; hIS father. When:th~ plaintiff wa’s’re-. arnlned he said’~ , ,. , t It.. .~ • I I •. i ,! ; r liThe two lots of ‘and which helong to my fa!. ~r is’ feaqily idepti ‘ able bec~u8e ” ~ “ • . , ,II they are in bush covered with mahogany trees. The s~rrounding I clear,” . t : At the close of the Qas(~ for t,le pllintiff leart.ed Q1;leen’~ Counsel Mr. follows: ,

1.The plaintiff has failed to m1ke a case in the court for 1he defendant • 2, The one witness has not established the plaintiffs case to make co probabilities that th” defJndant trespass4d on the land. :d i~ basically ( ,. 1 . ) , . ou~an sulJ”,ltted as I I. 0 ~wer. : r hold on a balance of! I , . ‘,.’ , :’, I

3.The land described in ,I.e p:uintifl’s deed ~s a land will, two IUlS. Co~cannot say if , . I those lands were two f mall lots. The sol~witness was unable to lell!i~e bo1lrt the size of his father’s land. Hence he is umlble to tel!. court that any mahogany trees ~~~e cut yom' 1 ” his father’s land. ,f. I' “

4.One would have thoughtthat the plaintiff wou!~ha~b had /tis surve or. This i~ ~nt:al. A surveyor should be brough: to stllte that the ~dwas th~ I~dof e d~d:la1nlJ~ . \

5.An action in trespass is an action against posse~ion. ‘ This is ;.caSe· oJruership also, not merely in trespass. , I ‘ , Other submissions were made by lrarned ‘Queen’s:clounse~’to:whil?h I need t refer T).ow~· “ ., ‘t “ 3 I r! ~ . ! I “,.. fhe law is that trespass to land COJ.lsists in any u~ustifiable intru~ion by 0 ~.persoh upon lAnd in L I l 1 . .’ the possession of another. The, tort of trespass lo,lapd: oper’lles to ,I> 9tect irtcrcMs iI til\’ I • I I . I,,: possession of property and the right to immediate possession th( reof. Co ‘ ently, a c1ail In ‘f tort to assert such an interest will commonly raiSf= que$t~o[s of tit1e to pro , Both counsel in their addresses wete in favour of a ~urvey be;ng I lone. IIt ‘Vas or~er~d\hat ‘a survey of the land shOUld be done. The survey was i~deedd~ne by CoJinIAl~’ Jerllice?ci”, land surveyor. Mr. Alexander testified that the latiu 01 MIlton R. ,oe:rt~ dec~d was 7,sbl square feet in area. During his observations approximately c ~hl tr s ,ere noted to be • ‘ .. 1 , .\’ previously felled: ranging in girth size of between 1 foq~ to 4 feet I o~l of hi~h wer~,~~Jl1’fany,’ trees. He explamed that the land had mostly mah~any trees and that the land w~) “n tush , 1 . r . , A., except for the cut trees. •\n area was cleared because 0,:…’ the cut trees…, ‘ ~ ,-‘” , . I I..t I . I ( Learned Queen’s Counsel Mr. Do .!gan SOUghtlo obtain from the survey t r eyidenc e as to howl ‘. long ago the trees we¥’e (..It. A fter saYing h~ di not know, when a year w’ sJ,ggec;ted to him he ) , I I • ‘ “ said ” in my opinion the :rees were (;ut maybe a year ~o.” : r I . ” II Does the evidence of the surveyyr lead to the conclu~on or mpPQrt the e for the p, aintiff that ; . on September 21, 1983 the secon'” n …med defendant Fit the j’1stanCC ofth first named ‘defendant , . trespassed the land and cut four farge mahogany treFs? h,’ ~e tr~es we e cut a ypar ago, that would not advance the case for the plaintiff for we are dealing, with ~ matter?CC Irring}h i September 1983. At its I ighest the evidenc~ of the surveyor h suppo . ve of th., “” : f~r-tJll plaintiff in so far ~he expJai led that the land of Milton Roberts dccease.. trees, that the hind was,in bu ih except for ,the cbt trees and “n area was cl ed because of the ~u~ trees. This piece of evidence is consislert with1what the plaintiffsaid fNh n he ~~e~amineo, in , . . . ., chief and in re-examination, ” ‘.I ‘. . r ‘ I .,, The defendants wer~ not called to give evidence. ‘Deed ~o. 1016 of 199, was tend~r~ through “ the plaintiff as exhibit “WR 2”.’ This deed was r.a~e between Dani1 George ~d f\ngeJla Stewart, his intended wife. In the deed Daniel conve!e~ to Ang~lIa a parr.lofl~d i~-Lown!s:~ Hill being one and a half (1 L’2) acres in area, bOjed Qn the north byt’the ,LeeWard High “ and the public road, on the s:>uth by a gutter, on the , ..ast by lands in the ‘os~ession ~fWanford Sutherland and Ephraim Hackett on ~he west by l~d.s in’ the p~ssession : f WilttJDIR’.~b~rts and .~. I , tl I. • one Allen and Cleve Warner. . . ,” I , ,. i The plaintiff deposed in cross ex:,mlnation that he knew the IIIIlL of Ang~lia doorge at Low ,ans ., but did not know the quantity. f I . j . I . t ‘I )’ / t fl .. , ! I .. ‘I ( I , j In answer to a question from learned Queen!s Coun~l Mr. Do~gaI1,’ in j”os:;-examination. the t . surveyor stated: “I did Jot measure the lands of Angella George. Those I ds app, :ar to be fnirly expansive most ofthe land was in bush.” ‘\ In re-examination by leari-ted Quee” Counsel Mr. Syl ,.!ster be ~ id; ” ,would not know the fl .\’ extcnt of Angclla Georgc land. ‘ i.• , I .~ l’ , -, , It i. f.. The deed indicates that the land is 1 112 acres in area.; There is no’ evic..en that mahogany ~ees ,-, • 1_ are planted on the l~d. The cc urt will have to find o~a balance of probab lities that the piaintirt ‘ has made out his case against d.e defendants .. 1 i. “.” 1 , J i , .’ J I I ,I “The standard of prl)of required in civil cases is generally express d’a~ proof~nl4the I , balance ofprobabililies. ~flhtJ evidwlce is sucJt that rhe tribunal c ‘sar” “:,e thinl-: it more probablc than not,’ the hllrden is discharged, hu, if the proba ilitits are equal it is not” (See Phipson on E~denee 14th editi01 parag _ph 4–; 38, P ge 78. ‘I ” ‘r I have carefully considered the !evidence of th, Plaint~ff and the surVeyor. Ii find tho ~v Jenfe~;’ the surveyor to be materia’ly confirmatory of that of~e plaintiff. On the ~vidpnce I hIT. , ‘ evidence of the plaintiff .:ha: on the 21 st Sept~mber~ 1983 the s~cond-n ed ~fendant at f’le instance of the first named defendant 1respassed upon the plaintiff’s’ 1 d and, cut lour lar,ge “ , r’ f “ \ ‘t • t mahogany trees. • f ‘ . \ ,,’ The plaintiff put his .special damages at $1,200.00, ~ne Illflhogany tree b ing $300.~O. Leamed Queen’s Counsel, Mr. Dougan submitted. that the p1t;ntiff could not tell e court how he came by the valuation of the trees. K 0 agriCUltural tariff was aee~ and-the plain . ff was p’;’tttng a gur I figure. I ~ I ‘ f The plaintiff’s evidence in examinatio~ in chief’ras: . “I ~claiming the .;~alue o~th[ ~;e:~. The .~ value is $1,200.00. One tree is $:,tOO.OO,EC.” II) cros~ e~amination he sai~: “I did not,check the , , ‘ I I’ I , agricultural tariff in 1983 _ I di J qA measure the trees … “I ,; “ It is trite law that special damage m~st be pleaAed, Partic’ularis~d and pr cd ~trictly.Since Hie burden of proof is on the injured party the defendan~ is under Ino (~bliga ron to call ‘e’-‘idillce,ill rebuttal. It appears to l1e that, adopting the submission of the respo~den in the. :ase of Grant v Moti/al (1988) 43 WIR 372 at 375: “the essential issue … was whethe; th~ ‘1~,Oftj e,evidet,5t: was such as to satisfy the undoubted rule with res,pec~ to a ch m for sp~ial damage. fhe, • evidence adduced hr!d to be reHab]1 ; 1d oil an ascertain; ule ba&is.” .. , f ,, .~ “\ A , ‘ 1~ 1 , .I I’ > ,, .,I I I ~ ( I , “ I · 1 ‘I . Is the evidence ofvahlation s~ unrc\ Ii.H)~e lha~ the claim ,!.or <;peCial . :t’llage, should he disn1i~cd’) • It appears to me that the eVJ(,enee of specIal damage; was not reall:,’ challenged. ~ha;\vu.s t. , ” . explored by learned Queen’s Counsel was its probativ~ I(alue. Th(f cyid~n¢e of the plai.1tiH ‘4\’as uncontradicted. Further I do not cOl1sider him to be a.witness who ‘ac~s credibility. In the clfcumslances of the case, I ho d th’u the p,ainl’rf lias established IllS enli~lcment/LO ~hl’ SPCCI;U 1 damage claimed of$l,:!Of.OO. , . ‘ ;, J I .’ “ , . II , I ‘ I A person in trespass is entitl!d til recover danages even though he Ilds sustdined no ac’,uaJ loss. If .. a trespasser cuts down and remo cs ornamental timber. the ( wner may in an action f( r In~spas!> . recover the value of the trees whef ~ anding. (See Clerk ‘nd L,indsell on Torts 17th ‘edition paragraph 17-64. page 872). In the II1stant case. the plam:ifT puts the vlllue of the trees ,II r $1,200.00 l . . -f ~ .'{ Apart from the trespass in; 981, the plaintiff also alleges a trespass in 198 f and .one in 1996. III 1 I the circumstances an injuncti( n wLukl be in ord,u. I enter judgment for the plaintiff and make the iol,lowing orders: r , ,

2.An injunction is grant.,,: to restrzin the defe~dants wheth~r by themselves Or by th~r , i servants or agents or otherwise howsoever frdm entering th~ plai1tiffs land and cutting down the plaintiff’s tre(:s ·.)r from doing or exer~ising any acts ofo~t’fship JtfreoJlt , . I' I

1.The defendants are to pay the plainti(f the Sl,lm of $1.200,00 in’ special drunages and “ $1,200.00 in general damages.

3.Defendants to pay cost to b~ taxed ifnot agreed. .r\ U~~ ~ \ . f ,)avidson Yel vi Bapti~te , Jligh 0 11’1 Jud ‘e (Ag.) , \’ “ , t , I ‘p ,