The North Eastern Ensign at KellyGang 9/3/1875
BENALLA POLICE COURT
Monday March 8 1875
(Before Mr Holmes PM and M’Bean JP)
(Mr M’Bean here left the bench)
William Guun, a farmer appeared on summons to answer the complaint of Robert M’Bean for burning stubble on land in his occupation without giving 24; house notice, as required by the act, on 29th January last. Mr DC O'Leary, instructed by Mr M'Donnell, for the plaintiff; Mr. Martyr for defendant
In addition to tho above there were two other complaint all being laid under the 21st section of the Police Offences Statute: the second was for burning the stubble without having cleared inflammable substance for a distance of 15 feet adjoining other lands; anh the third was for leaving the fire before it was properly extinguished.
On the opening of the first case by Mr O'Leary, Mr Martyr for the defence contended that as all the offences. were contained in the first part of the section " that any person igniting; &c; any inflammable material within three yards of any stubble field or grass land whereby the property of any person shall be destroyed, or if any person shall leave any fire, &c., before the same be thoroughly extinguished." Therefore the summons, before the court contained no offence, as it was merely under a provso whereby a person giving the notice. might burn stubble, &c., without being liable, and as no punishment was infictable for not giving notice there. was no offence. The Police Magistrate, however, decided, to hear the evidence, and Mr O'Leary called the following witnesses.
Neil M’Millan deposed that he resided at Kilfeera, and knew the defendant, who was a neighboring farmer; knew the stubble paddock occupied by Gunn; on. the 28th Gunn told witness be intended to burn off the rubbish; went to the paddock on the following morning; there is a division fence and road between Gunn's and M'Bean's land, the fence being on Gunn’s side; the read is not used by the public, being included in M’Bean's. paddock; saw, Gunn and his man Robert Ackers, in the paddock: Gunn was ploughing, and I assisted him by ploughing three furrows, after Gunn had finished to within four or five feet of the fence; about eight yards, further into the field I ploughed the three furrows; the stubble between the furrows, about eight yards, was burnt previous to setting fire to the other portion in the field; the five furrows would be about five feet wide; a grass paddock of Gunn's also adjoined M'Bean's land;. Gunn and witness lit the stubble; the fire first spread down between the ploughings and burnt that space clear; did not see fire spread into the grass paddock, nor into M’Bean's land, but saw fire on his land afterwards; after the burning off between the ploughings there was no sign or appearance of fire when witness left the place; about an hour and a half afterwards saw smoke rising from Gunn's grass paddock; the wind was blowing from the north-east at that time - from M’Bean's land; it afterwards changed and blew towards, it; the whole of the stubble in Gunn’s paddock and the grass paddock was burnt, and also the grass in M'Bean's land; on going into the paddock saw Gunn there trying to extinguish the fire; Messrs Purcell, Napier, Gunn's son, and others assembled to put out the fire; it was confined to the grass paddock, but afterwards it went through the fence into M'Bean's; it was burning up to about 10 o'clock at night on the other side of the creek in plaintiff’s grass paddock, and was very near his residence; it had destroyed a brush fence and a sheep fence; saw no other fire in the neighborhood; there was not the least sign of fire in Gunn's paddock when I first left the place after burning between the farrows.
To Mr Martyr.- The fire in the grass paddock in was about four chains from the stubble paddock, but could not say if it had run from the-stubble to the grass, or broke out afresh; in addition to the furrows there was a beaten track of about, 14 feet wide, with nothing growing in it, making altogether about 14 feet wide, with nothing growing on it, making altogether about 44 clear from the fence.
Robert Ackers deposed he was in the employ of Mr Gunn in January last on the 29th; the day of burning off, M'Millan, the last witness, and Gunn were both burning off the stubble between the ploughed furrows; after M'Millan went away first the fire started in the grass paddock, and no fire at that time was in the stubble; could not say what originated the fire in the grass; saw afterwards the fence between the two paddocks was a little charred in places; the fire was about two chains from the stubble when I first saw it; it afterwards ran into Mr M’Bean’s land; Gunn sent me to Mr Wallace to give notice of burning off the stubble.
Michael Purcell stated he was in the employment of the Messrs Wallace at Tatong; on 29th January he was sent to Gunn's paddock about 11 am.; the fire was then burning in the grass paddock; asked Gunn and Ackres to put out the fire; .did not see it run into M’Bean’s land; have since seen the track of fire in that direction. -To Mr Martyr. - The fence between the two paddocks was not burnt.
George Finlay, a laborer, in plaintiff’s employ, deposed that of the day mentioned he saw the fire about 10 o'clock am; went to the place, and saw fire in the grass paddock belonging to Gunn; there was a track of burning from the stubble to the grass; did not notice if the fence was burnt, the fire was burning away from the fence; there was a road way between the place burning and the fence.
Robert M'Bean, the plaintiff, deposed - I am a sheep farmer at Kilfeea, owning and occupying the land adjoining Gunn's stubble and grass paddock; about 12 o'clock on the 29th January saw heavy smoke rising from Gunn’s grass paddock, and went to the spot; found the fire then at the fence dividing Gunn's grass paddock from witness’s own land, and burning in each paddock; noticed the stubble smoking at the time and saw a continuous tack of burnt land between the stubble and grass paddocks through the division fence; had received no notice of his intention to burn off from the defendant; the fire got through to my land and destroyed five paddocks of English grass, besides a large quantity of fencing; cannot yet estimate the amount of damage done; went afterwards and saw where the fire had run from the stubble to the grass paddock; also noticed there had been ploughing about three or three and a half feet in width along the post and rail fence dividing Gunns ground from witness's; six or seven yards further in the paddock there were about four feet ploughed; on south side of stubble paddock only a little scraping by the plough had been done; the fence between Gunn's; two paddocks was charred on the bottom rails. – To Mr Martyr. - Cannot say where the fire originated; do not know if anyone in my employ got notice of the burning off.
At the conclusion of the evidence for the plaintiff the Police Magistrate stated that there was no evidence under the first part of the 21st section of the Act to sustain the charges, and after hearing Mr O’Leary in reply, dismissed all cases without costs.
[note from Ensign 12/3/1875, prosecution brought by police and not McBean ]
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