Lee et Al v White

• Jurisdiction: Montserrat
• Court: High Court (Montserrat)
• Judge: Redhead, J.
• Judgment Date: 03 April 1992
• Neutral Citation: MS 1992 HC 3
• Docket Number: 41 of 1992
• Date: 03 April 1992

High Court

Redhead, J.

41 of 1992

Lee et al

and

White

Tort - Trespass to land — Plaintiff noticed that defendant had cleared her land and had cut trees on the same — Tying his animals on the said land also — Defendant claimed he entered land to remove nuisance created by the smell of a dead cat and dog lying on the plaintiff's land — Plaintiff's evidence accepted — Declaration ordered that defendant is not entitled to cross the plaintiff's land and injunction granted to restrain defendant from entering or crossing the plaintiff's said land.

Redhead, J.

1 The plaintiffs who are tenants-in-common of a piece of parcel of land registered as Parcel 82 in Block 217 Brodericks. Registration section known as Trials brought this action in trespass against the defendant. The first named plaintiff was the only witness called in support of this action. She testified that she lives in St. Peters and visits the property at Trials about every six (6) months.

2 The defendant is a blood relative of the plaintiffs and lives at Trials. His property at Trials abutts and bounds unto the plaintiffs' property.

3 On 17th September, 1989 Hurricane Hugo struck Montserrat with a severity of force which was unparalled in recorded history. There was extensive damage throughout the island of Montserrat.

4 The first named plaintiff (hereinafter referred to as the plaintiff) said in her testimony that she visited Trials about five or six months after Hurricane Hugo and observed that the land was cleared. She said:–

“defendant cut down a mango tree and breadfruit tree.”

5 However, it turned out, and I accept the evidence, that these tress were uprooted after Hugo and were later burnt.

6 The plaintiff also said in cross-examination that she saw the defendant tying his animals on the property in 1985, The plaintiff in her testimony said that the defendant does not now tether his animals on the land.

7 But the plaintiff said in evidence:

“As a result the defendant claiming the land I went to a lawyer. Since I have seen a lawyer the defendant has not cleared the land or burnt trees.”

8 The defendant in his defence at paragraph 2 states that he's the owner and in occupation of lands which adjoins the plaintiffs. On 22nd September 1989 a dead decaying dog and cat lay on the plaintiffs' premises emitting deleterious smells on the defendant's land and was dangerous to the defendant's health and prevented the defendant from enjoying the use of his property. The defendant as a result, entered on the plaintiffs' property on or about the 22nd September, 1989 for the purpose of abating the nuisance burnt the said dog and cat, doing no more than was necessary for the said purpose.

9 The defendant denies ever entering the plaintiffs' property other than on that occasion.

10 At the trial, the defendant strenuously denied that he ever entered the plaintiffs' property at anytime. He denied ever tethering animals on the plaintiffs' land. He testified that after Hurricane Hugo his son Charles White went on the plaintiffs' land and burnt the dead animals. In cross-examination he said:

“I have never gone on the land. I never cleared any land. The only time the land was entered was in 1989 by my son. I never put my foot on the land.”

11 The defendant called his son Charles White as a witness. In cross-examination this witness said:

“I have seen him [the defendant] going unto the land. I saw him enter the land with me after I lit the fire. He stood next to me and also near to the burning cat and dog.”

12...