A Popular Fence
Another in the Dewcliff series
It is the third day of Robert Dewcliff’s tour of duty in Rossbury. The temperature has dropped a few degrees and it is less humid than on the first day, making the atmosphere in the ‘courtroom’ almost bearable. Despite the urging of the Clerk, Robert has refused to give up his tie, although he has given in to some extent by rolling up his shirtsleeves and hanging his suit jacket on the back of a spare chair appropriated for the purpose. He would never hang his jacket over the back of any chair he was occupying, as that is a sure way to ruin the collar.
He has already dealt with a number of minor criminal matters — drunk and disorderly, shoplifting, deliberate damage to a car and the like. Mr Whittle and Mr Avergaard are both in Court, having represented several of the reprobates. Also at the lawyers’ tables are Andrew (Drew) Lyneham, a local solicitor, and Olive Green (Green is her unfortunate married name), a solicitor from the larger town of Echuca.
Alistair Rogers, acting as the Clerk of Courts, stands and calls the next case. “The case of Taylor and Morgan!” He turns to the Magistrate and says, more quietly, “This is a fencing dispute between Alan Taylor and Derek Morgan. Mr Morgan is represented by Ms Green and Mr Lyneham represents Mr Taylor.”
“Thank you, Mr Rogers.” Robert looks up and addresses the two men in the dispute. “Are you two related, by any chance?”
The two men look at each other, puzzled, then Mr Taylor looks at the Magistrate. “We are not!”
“Well, that is refreshing. And you are not related to your lawyers?”
Mr Taylor again answers. “Not as far as I know.”
“Good, Good.” There is laughter from the public gallery at the look of relief on Robert Dewcliff’s face. Robert then points at Ms Green and Mr Lyneham in turn, with a questioning look on his face. “And …?”
Mr Lyneham looks with mock distaste at Ms Green. “Absolutely not, your Worship!”
“Wonderful. Okay, let us get this fencing duel underway. Which of you wants to start?”
The two solicitors look at each other and play a short charade of ‘you go first’, ‘no, you go first’, ‘no, I insist’. Robert looks back and forth, as if watching a tennis match. Finally he asks, “Is this going to be a silent duel?”
“No, your Worship,” Mr Lyneham says as he stands up. “We can’t work out who should open the case.”
“The Complainant usually does, Mr Lyneham.”
This time Ms Green stands up. “There are cross summonses in this case, your Worship. Both of them are Complainants and Respondents.”
“Well, let us have age before beauty.”
“I don’t know how you can pick between the men on that basis, your Worship.”
“Not them!” He indicates the two lawyers. “You two!” This brings more laughter.
Mr Lyneham stands up. “Okay. That’s easy.”
Ms Green sits down, with a smile on her face. “Thank you Andrew. Very gallant of you.”
Mr Lyneham addresses the Court. “The parties to this dispute own adjoining properties.”
“That is usual in a fencing dispute.”
“Yes, your Worship. They and their families have been there since it was subdivided in the eighteen-seventies. My client’s ancestors settled here after making money in the Gold Rush. The fence in question dates from that period.”
“I presume, Mr Lyneham, that the fence has collapsed and they cannot agree on mending it.”
“On the contrary, your Worship. That’s part of the problem. It’s still standing.”
Robert looks incredulous. “What!? After more than one hundred-and-thirty years? I should get myself such a fence.”
“I doubt you would, your Worship.”
“Oh, and why would that be?”
“It’s a poplar fence, your Worship.”
“Well, well. This is a first. I have never presided over a popular fence dispute before.”
“That’s ‘poplar’, your Worship. As in ‘tree’.”
“Oh! I see.” Robert Dewcliff pauses. “Are there any witnesses other than your client?”
“No, your Worship.”
Olive Green half rises. “No, your Worship.”
“What, no fifty people who watched the fence grow over the century?”
Both lawyers shake their heads.
“Well that is a relief.” He wipes his face and neck. “Carry on.” He waves his hand at Andrew Lyneham.
“I ask Mr Taylor to take the stand.” He turns around and indicates to Alan Taylor to go to the ‘witness box’.
Alan Taylor stands and then limps across the front of the Court to the card table.
Alistair Rogers stands up. “Please pick up the Bible, Mr Taylor, and repeat after me: ‘I swear to tell …’” He stops, because Alan Taylor has picked up the Bible as asked, but he is turning it over and over, squinting at it. He puts the Bible down and pats the pocket of his shirt and then feels around in his trouser pockets. He limps across to where he was sitting before and picks up a tweed jacket from the seat. He carefully looks in all the pockets. He looks puzzled.
Derek Morgan calls out to him, “They’re around your neck, Stumpy.”
Alan Taylor looks down and smiles. He puts his glasses on and heads back towards the ‘witness box’, tripping over the first chair he passes. “Damn!” He takes his glasses off, limps to the ‘witness box’, puts his glasses back on and examines the Bible again.
He looks up. “This is … isn’t King James.”
The Clerk responds, “No, it’s more modern.”
The Clerk looks puzzled. “I beg your pardon?”
Alan Taylor waves the Bible in the air. “Why don’t you have the King James? That’s the proper Bible.”
Robert Dewcliff intervenes, making an effort to sound patient. “Mr Taylor, it is immaterial which version of the Bible it is. All the law requires is that you swear an oath on a Bible, or you can make an affirmation.”
“But I don’t believe in anything other than the King James, and I’m certainly not going to affirm.”
“The whole procedure is only symbolic, Mr Taylor. Its purpose is to impress upon witnesses that they must tell the truth.”
“Please just swear on this Bible and in your own mind make whatever adjustments you wish to make to have you feel an obligation to tell the truth. I am sure you will.”
Alan Taylor looks truculent. “Okay,” he mutters.
The Clerk rises again. “Please hold the Bible in your right hand and …” Alan Taylor is moving the Bible from hand to hand, not able to work out right from left.
The Clerk is now sounding impatient. “Any hand will do.” Alan Taylor settles on holding the Bible in his left hand. The Clerk continues, “Repeat after me: ‘I swear to tell the truth, the whole truth and nothing but the truth. ’” The witness repeats the oath faithfully.
“Please state your full name and address.”
“Alan Stumnpy Taylor. I live at Yoodonga, Canny Road, Rossbury.” He is still holding the Bible.
“Is ‘Stumpy’ your official middle name?”
“No, it’s on account of my leg.”
Robert Dewcliff interrupts. “A war injury?”
Alan Taylor looks indignant. “No fear! Fell under the plough and sheared it right off below the knee. It’s metal now. Good as new.” He says this last bit proudly.
His opponent, Derek Morgan, calls out, “Good thing it’s not made of wood. You’d have branches growing out of your ears if you stood still too long.”
Robert ignores this outburst and continues, “Do you have a middle name?”
“Yes, Stanley your Worship.”
“Thank you Mr Alan Stanley Stumpy Taylor. And you may put down that Bible and sit yourself down.” Alan Taylor does as suggested and also takes off his glasses.
Andrew Lyneham rises again. “Mr Taylor, how long have you and Mr Morgan been at odds?”
“Since we were kids.”
Robert interrupts again. “Have you been fighting over this fence for that long?”
Alan Taylor chuckles. “Over it, through it, in it. You name it.”
“I mean, Mr Taylor, have you been in dispute about the fence since you were children?”
“Lordy no! It was other things then. But our families have been arguing about it as long as I can remember.”
Andrew Lyneham waits to see if the Magistrate is going to say any more and then continues. “Mr Taylor, I understand you issued the first summons in the current round.”
Robert makes another remark. “You make it sound like a boxing match.”
To this Andrew Lyneham responds, “Your Worship, your predecessors heard two rounds of dispute between the families over this fence.”
“I see!” Robert waves his hand to indicate that Andrew Lyneham should continue.
“And why, Mr Taylor, did you take out a summons?”
“To get it moved.”
“To get what moved?”
“And why do you want it moved?”
“It’s in the wrong place.”
Robert takes over again. “Has it taken one hundred and thirty years for you to discover this?”
“Yes, your Worship.”
“And how was this error discovered?”
“A surveyor told me.”
Andrew Lyneham waits for the Magistrate again, but the latter is silent. “And why was the surveyor involved, Mr Taylor?”
“Because my mother died.”
“She left the property to my older brother and me.”
“And he wants out.”
Robert shakes his head. “Could you please elaborate, Mr Taylor?”
“I was trying to be succinct, your Worship.” Alan Taylor pauses, takes a deep breath and sighs. “My mother left the property to the two of us and my older brother Richard wants to sell his share and move in with one of his kids and we needed to get a valuation and had to get a survey done.”
Andrew Lyneham takes over again. “So, Mr Taylor, what was found from the survey?”
“That the fence was more or less twenty yards too far on my side.”
Andrew Lyneham explains, “That’s approximately eighteen-and-a-quarter meters, your Worship. More or less.”
“Thank you Mr Lyneham. I am very familiar with the maths,” Robert responds. Then, turning to Alan Taylor, “I was always under the impression that surveyors were very exact people. What did you mean by ‘more or less’?”
“It’s unclear where the middle of the fence is, your Worship.”
“Middle of the fence?”
“Yes. The fence is between eighteen inches and three-and-a-half feet thick and it’s no longer in a straight line. Some of the posts lean quite a bit and the rails are all over the place.”
Robert chuckles. “Not surprising after a hundred-and-thirty years.”
Andrew Lyneham continues again. “Mr Taylor, please explain to the Court why the fence is so thick and ‘all over the place’, as you described it.”
“It’s a live fence.”
Robert asks him, “Is it electrified?”
“No, your Worship. It’s made of live trees.”
“Oh, I understand now. Your ancestors planted a hedge.”
“No, your Worship.”
Andrew Lyneham takes over. “Please explain how the fence was constructed, Mr Taylor.”
“My great-great-grandfather built a standard post and rail fence, but he used wood from a stand of poplars near the river and didn’t let it dry properly. After a while, the posts started sprouting and took root and grew back into trees, with the rails embedded in them.”
“And when he built the fence, how did your great-great-grandfather know where the fence was meant to go?”
“As far as I can make out, whoever subdivided it put pegs in to show the fence line.”
“And you have tried to get your neighbour to agree to have the fence moved and he has steadfastly refused. Is that right?”
“That’s it.” With this Alan Taylor looks at Derek Morgan, as if expecting a challenge from him.
As Andrew Lyneham sits down, Robert asks Alan Taylor to return to his seat. However, as Alan Taylor starts to move, Olive Green stands abruptly and addresses the Magistrate. “If it please your Worship, I have some questions to ask the witness.”
“Certainly, Ms Green.” He turns to the witness. “I am afraid you will have to sit back down, Mr Taylor.”
Alan Taylor mumbles, “I wish people would make up their minds.” He turns around and sits down again.
Olive Green addresses him. “Mr Taylor, how long have you lived on the property in Canny Road?”
“All my life.”
“And have you ever noticed a discrepancy in the placing of the fence?”
“How would I? It was there before I was born. It’s a local feature.”
“Exactly. You could, in fact, consider it part of the landscape.”
“What are you getting at?”
“Is it true that some years ago you petitioned the Council to give the fence a heritage listing?”
Alan Taylor hesitates, then slowly replies, “Yes.”
“And why did you do that?”
“I figured it could attract some tourism into town. You know … there’s the big apple and the big banana and the big pineapple and the big koala. Why not the big fence?”
“Why not, indeed? And did you consult your neighbour about this plan?”
“Why should I? The fence belongs to my family. Besides, the only neighbour on that side is Derek and his brood.”
“That would be the Morgans?”
“And why would you not consult them?”
“Derek’d be opposed to anything I suggest. He always does!”
Robert Dewcliff asks, “Is that why the two of you keep coming to Court?”
“It’s the only way to get anything out of him.”
At this last remark, Derek Morgan stands and calls out, “You’re just the same, Stumpy!”
“Sit down, Mr Morgan. You can have your say later.” Robert turns back to Alan Taylor. “As a matter of interest, Mr Taylor, what was the last dispute about?”
“Leaves, your Worship.”
“Could you tell me more?”
Alan Taylor points to Derek Morgan. “He complained about the leaves blowing onto his side in the autumn.”
Derek Morgan rises again. “That’s only his side of it!”
Robert scowls at him. “Mr Morgan!” The latter sits down and says something under his breath. Robert continues, “Actually … I have an idea how we can most expeditiously get through this and perhaps obviate any future litigation.”
Geoffrey Whittle interjects, softly, “Here we go again. Another example of justice in action.”
Robert laughs softly. “Yes, Mr Whittle. You might think of us city magistrates as being stuffy and unimaginative, and some of my brethren are. However, I do not believe in letting procedural rules stand in the way of justice.”
Olive Green sits down as Tollus Avergaard mutters, “We might as well throw every rule-book out with the bath water.”
Robert responds, “It is not about throwing out everything, Mr Avergaard. One needs to do this judiciously and with regard to all the circumstances. Observe.” He then turns to the Clerk. “Mr Rogers, please arrange for another chair to be placed at the witness table.”
“We don’t have any other Court staff, your Worship.”
Robert impatiently flutters his hand at the Clerk. “Well, get on with it!”
The Clerk is annoyed as he gets up, walks to the lawyers’ tables and removes a chair from behind one of them. He takes it to the ‘witness box’, where he puts it down noisily. He returns to his own post.
Robert thanks him, without any sarcasm in his voice. He understands the difficulties Alistair Rogers is working under. Then, “Please assist Mr Taylor to move his chair around to the other side of the table.”
“I can do that myself,” Alan Taylor says gruffly.
Robert beckons to Derek Morgan. “Please join your nemesis.”
Andrew Lyneham gets to his feet. “I object to my client being likened to the Greek Goddess of Retribution.”
Robert smiles. “I accept your objection, Mr Lyneham. I am impressed that there seems to be some classical education in this town.”
Andrew Lyneham responds coldly, “I was educated in Sydney, your Worship.”
“Ah, yes. Melbourne’s nemesis.”
Andrew Lyneham continues, “Your Worship, I suspect that it will make little difference to your intentions, but I share Mr Avergaard’s misgivings.”
“Thank you for your contribution. In fact, your misgivings, and those of your colleagues, will have no impact whatsoever.” Robert turns to Derek Morgan. “Do you have a favourite Bible, Mr Morgan?”
Andrew Lyneham sits down as Derek Morgan responds dryly, “No, any edition will be fine by me. We’re not all of us that fussy around here.”
“Please swear in the second witness, Mr Rogers.”
Alistair Rogers argues, “We can’t have two witnesses at the same time, your Worship!”
Robert raises his eyebrows and the Clerk hesitates as he looks at the Magistrate for a moment. He then turns to the witnesses. “Mr Morgan, please stand and pick up the Bible in your right hand.”
Derek Morgan picks up the Bible in his left hand, looks at it and, in a parody of Alan Taylor, moves it from hand to hand. Finally he holds it up demonstratively in his right hand with a mock triumphant look on his face. Several people giggle. Robert Dewcliff looks annoyed.
The Clerk intones, “I promise to tell the truth, the whole …”
Derek Morgan interrupts, “Yes, yes! I know. I swear to tell the truth, the whole truth and nothing but the truth.” He sits down and drops the Bible onto the table.
Robert takes over. “As with some other cases brought in this Court in the past few days, my sense is that, if I allow things to be done by the book, we will be here all day and more. My intention is to get to the bottom of things so that some conclusion may be reached. I know that I will sleep better for it.”
From the way Derek Morgan and Alan Taylor are sitting, it is obvious they do not like each other.
Robert goes on. “Mr Taylor, you told us that the previous dispute was about leaves from the fence blowing onto Mr Morgan’s property. Could you continue with that, please?”
“I wanted to use them as mulch, but the wind mostly blows Morgan’s way at that time of the year. He wouldn’t give them back to me. He offered to sell them to me! I ask you, my own leaves and he wants me to pay him for the privilege.”
Derek Morgan speaks up. “Once they’re on my side, they belong to me. Why should I go to the trouble of raking them all up for your benefit?”
“I would gladly have done it.”
“I don’t want you on my land. Besides, with that leg of yours …”
“How dare you?! I am quite capable of …”
“Gentlemen! Please! What happened to the leaves in the end?” Robert has to wait for a response, which eventually comes from Alan Taylor. “He raked them all into piles and burned then and then the wind changed and all the smoke came over to my side and hung there for hours. I sued him for nuisance.” He looks pleased with himself.
“And what about the bout before that?” Robert asks.
Derek Morgan takes up the story. “I wanted the poplars to be trimmed down to medium height, because they were blocking the sun from my house.”
Alan Taylor objects, “You should not have built it there, right near the boundary. You’ve got fifty acres to build on.”
“That’s irrelevant. It’s my land and I can build where I want.”
“In any case, the shadow from the fence doesn’t come anywhere near your house.”
“The shadow falls right across the garden.”
Robert Dewcliff speaks again. “Mr Morgan, how far from the boundary did you build your house?”
Olive Green rises. “Your Worship, that was all dealt with at the time.”
“I am sure it was, Ms Green. By my predecessors. But I would still like to know.” Olive Green sits down.
Derek Morgan replies, “Twenty-five meters, your Worship.”
“Was there a reason for not building it closer to the boundary?”
“Well, yes. I didn’t want to have problems in the future with the boundary line.”
“But Mr Morgan, the poplar fence marks the boundary line, does it not?”
“It doesn’t, your Worship.” He points to Alan Taylor. “He has given evidence on that.”
Alan Taylor indignantly responds, “But I only found out months ago! You built that house six years ago!”
Robert holds up his hand for Alan Taylor to stop. “Mr Morgan, it seems that you are not being totally frank. Remember, you are under oath.”
Derek Morgan hesitates, as if gathering his thoughts. “When I applied for a building permit for the house, I had to get a survey done. The surveyor found that the poplar fence was away from the proper boundary line by some eighteen meters. I wanted to play safe in case Stumpy found out and claimed the house was on his land.”
Alan Taylor shakes his finger at Derek Morgan. “You sly fox!”
Andrew Lyneham rises. “If I may be permitted, your Worship …” He turns towards the witnesses. “As a matter of interest, Mr Morgan, who was the surveyor?”
“Sandy Clark, from Leonsey.”
Alan Taylor thumps the table. “Wait ’til I get to him! He knew all along and then had the gall to charge me five hundred dollars to tell me!”
Robert laughs softly. “Maybe there is a lesson to be learned here. Perhaps better communication between the two of you could save a lot of strife, as well as a lot of money.”
Alan Taylor and Derek Morgan eye each other warily.
Robert continues. “As you may have started to learn, I prefer to have others come to some solution of the conflicts they find themselves in. So, Mr Morgan and Mr Taylor, what do you propose be done about the fence?”
Both Olive Green and Andrew Lyneham rise and Andrew Lyneham is the first to speak. “With respect, your Worship, I feel my learned colleague and I should consult with our respective clients before they commit to anything.” Olive Green nods in assent.
Robert addresses both lawyers coldly. “If you were as learned as you claim to be, you may have sorted this out with your respective clients before now. I would not want to suggest that disputes such as this are prolonged as a nice nest egg for the lawyers in this town. In any case, the petty disputes I have been listening to in the past days make it clear that there is little love lost between many of the local inhabitants.”
Both Geoffrey Whittle and Tollus Avergaard now rise and Tollus Avergaard protests, “Your Worship. With or without respect, such remarks are uncalled for.”
“Are they, Mr Avergaard? I could invite the Law Institute to look into possibly protected proceedings feathering certain people’s nests. With respect!”
All four lawyers abruptly sit down. Alan Taylor and Derek Morgan both have their mouths open in surprise.
Robert turns to them. “Who owns the land adjoining your two properties?”
Derek Morgan looks at his neighbour, then at the Magistrate. “It’s Crown land, your Worship. Most of it’s owned by the Council. It’s open land.”
“Mr Avergaard. As a member of the Shire Council, do you foresee anything standing in the way of the Council making a grant of a twenty-meter-wide strip of land to Mr Taylor and …”
Avergaard stands and protests, “Out of the question! Next we’ll be giving away land to anyone who asks for it.”
One of the women in the ‘public gallery’ stands and calls out, “Oh stop your posturing, Tollus! For goodness sakes hear him out.” She turns to the Magistrate. “Your Worship, I am also on the Council and I’m sure that the majority of the councillors would be interested to hear any proposal that can sort this out once and for all.”
Tollus Avergaard sits down, looking surly again.
Robert looks relieved. “Thank you, eh …”
“Mrs Leonie Mossmery, your Worship. And I am not related to any of the people involved.”
Robert chuckles to himself and sounds grateful as he says, “Thank you, Mrs Mossmery. Is the Council interested in Mr Taylor’s suggestion of a heritage listing for tourism purposes?”
“It’s worth another try, your Worship.” She sits down again.
Alan Taylor slowly stands up and leans on the back of his chair. “Your Worship, if I understand right, I would get an equal amount of land for the poplar fence?”
Derek Morgan asks suspiciously, “What about the land the fence is on?”
Alan Taylor sits down again and faces Derek Morgan and talks quite animatedly. “We could fence it off, with two normal fences and put a gate in at the road.”
Robert Dewcliff looks pleased. “I suspect that I can leave you two to sort out the details of this. This town may indeed end up with a popular fence. I propose we adjourn for lunch. I have worked up quite an appetite.” He bangs his gavel and wipes his face and neck again as he leaves by the door behind his table.