Swain, Henry

Evening Post 6 November 1917
MANSELL.- Killed in action, somewhere in Frances, on the 12th October, 1917, Frank, second son of Mr. and Mrs. Mansell, of Hawkes Bay, and grandson of Mr. Henry Sawin, of Lower Hutt.
Hie died for those he loved.
Inserted by his loving aunt, Mrs. W. Pilcher.
Hawkes Bay papers please copy.

Marriage Details
Date: 1858, Folio No: 275, Names: Henry Swain and Mary Rowe (sic)

Evening Post 13 April 1883
FOR SALE, a Horse (staunch), broken to harness, rising 7 years old. Apply Henry Swain, Waiwetu, Hutt

Evening Post 2 April 1884
NOTICE
ANY Person Trespassing on the Lands of the undersigned, sections numbering 11, 12, 13, 14, 15, and 77, Waiwetu, Lower Hutt, will be Prosecuted, and all dogs destroyed.
H. Eglinton, Edward Vaughan, Albert Judd, Thos. P. Allen, J. Copeland, William Clout, Thos. Lewis, W. B. Allen, W. F. Oakes, Daniel West, William Willcock, Henry Swain.

1893 Suburbs of Wellington Electoral Roll, Mary Swain, Residence: Lower Hutt, Occ: Married Woman

Death Details
1921/4109, Henry Swain, Aged: 84Y - Date of Death 21/7/1921 (sic) from Death Registration

Hutt Valley Cemetery Record Henry Swain, Date: 22 Jul 1921 (sic), St. James Anglican, Lower Hutt, Burial Record

Evening Post 22 July 1921
SWAIN.- On the 21st July, 1921, at Nai Nai, Lower Hutt, Henry Swain, dearly beloved husband of Mary Swain; aged 85 years
-
THE Friends of the late Henry Swain are respectfully invited to attend his Funeral, which will leave his late residence, Nai Nai (sic), Lower Hutt, on Sunday, 24th July, 1921, at 2.30 p.m., for the St. James Cemetery, Lower Hutt.
J. R. Croft,
Undertaker, Hutt and Petone
-
Evening Post 23 July 1921
STAR OF N.Z. LODGE, No. 46,
U.A.O.D., LOWER HUTT.
OFFICERS and Members of above Lodge are respectfully requested to attend the Funeral of our late Bro. Henry Swain, which will leave his late residence, Nai Nai, on Sunday, 24th July 1921, at 2.30 p.m., for St. James''s Cemetery, Lower Hutt.
By order A.D.
A. SEAGER, Sec

Probate Henry Swain, Place: Lower Hutt, Occ: Farmer, AAOM 6029 31110, Filed: 2/8/1921, Will, Archives NZ, Wellington

-
Death Details
1923/8602, Mary Eliza Swain, Aged: 83Y - Date of Death 4/8/1923 from Death Registration

Hutt Valley Cemetery Record Mary Eliza Swain, Date: 4 Aug 1923, St. James Anglican, Lower Hutt, Burial Record

Evening Post 6 August 1923
SWAIN.- On the 4th August, 1923, at the residence of her son-in-law (Mr. A. J. Mansell), Epuni Hamlet, Lower Hutt, Mary Eliza, dearly beloved wife of the late Henry Swain; aged 83 years

Probate Mary (sic) Swain, Place: Lower Hutt, Occ: Widow, AAOM 6029 34041, Filed: 10/8/1923, Will, Archives NZ, Wellington





Wellington Independent 10 September 1867
SUPREME COURT— CIVIL SITTINGS.
Monday, 9th September, 1867.
(Before Mr Justice Johnston)
The Court opened at 10 o''clock, and a common jury hnving been empanneled, the first case called on was that of
JOHN CUDBY V. NATHANIEL VALENTINE.
which was an action brought to try the right of road through a section of land at the Hutt.
Mr Brandon appeared for the plaintiff; and Mr Borlase for the defendant.
Mr Borlase, in opening the case, said that the action had been brought by Cudby against Valentine for trespass and that it was defended in order to try the right of his client to use an old road laid out by the New Zealand Company from the sea beach, through section No 20, a portion of which up to the present Hutt road was owned by Cudby. This section was a large one; that portion of it immediately alongside the Hutt road belonged to Cudby, and the back portion was in the occupation of Valentine. The old line of road had been laid down through Cudby''s portion, and the alleged trespass consisted in the defendant having for years made use of it in passing to and from the land belonging to himself. Until recently Cudby had not contested his right to do so, but latterly he had, and now he brought the present action for trespass, Valentine defending it on the plea that the right of way had been laid down by the New Zealand Company, and that it had been always open to the occupiers of the back portion of the section. He then proceeded to call evidence to prove the case on the part of the defendant.
Nathaniel Valentine, licensed victualler, residing at the Hutt, was the defendant in the case, and occupied the back portion of section No 20, at the Lower Hutt; the portion bordering the Hutt Road, — that was to say the N.E. corner of the section — was occupied by Cudby. Witness held his portion under a lease from Mr Edwin Jackson, but his title was a native one, as he had paid rent to certain aboriginal natives since January 16th 1865. [Leases put in.] An old road runs through the section, for which witness paid rent, through Cudby''s portion, to the Hutt road, and witness had used it ever since he had occupied the land without interruption till April last, when Cudby prevented his doing so. Previous occupiers of the same land had also always been in the habit of using the road without molestation. Until lately the line of road had been fenced in, but a short time ago the fencing had been removed by Cudby.
Mr David Lewis, at present Lands Commissioner for the New Zealand Company, said the names of previous holders of the office were Mr Fox and Mr Dillon Bell. Witness had, however, been twenty years in the New Zealand Company''s Land Office, and was acquainted with all its interior economy. The first survey of land at the Lower Hutt had been made by Captain Smith. [Original selection map produced.] Crown Grants had been prepared for the New Zealand Company, and subsequently a commission was appoineed to issue Crown Grants to the individual purchasers from the Company. [Map with claims of purchasers produced.] On the old maps and plans of the sections of land at the Lower Hutt there was traced out a line of road from the beach through section 20.
Cross-examined by Mr Brandon: Between sections 20 and 21 Lower Hutt there is no road laid down on the maps.
George Swainson, surveyor, formerly residing at the Hutt, had been fifteen years in the Survey Department; knew section 20 in the Lower Hutt, which belonged to certain Petoni (sic) natives to whom it had been conveyed by deed in 1848 by Colonel M''Cleverty, on behalf of her Majesty; the whole of the section had subsequently been relinquished by the Petoni natives to the Waiwetu natives. [Deed and plan produced.] In a plan accompanying the deed was shown a straight line, a chain wide, cut through the Hutt valley, and passing between sections 20 and 21; the line had been used by the surveyors, and was originally intended to be the main road up the valley, it having been used by the public prior to the cutting of the present line of road in 1844.
Cross-examined by Mr Brandon: Witness did not know whether former occupiers of that portion of section 20, now occupied by Valentine, had been in the habit of using the line of road which cut through the portion of the section owned by Cudby.
William Roe, a farmer at Waiwetu, and resident for five and twenty years at the Hutt, deposed to the fact of the road between sections 20 and 21 — particularly that part by the land now occupied by Cudby — having been used as a public thoroughfare, so far as White''s line, by most of the residents in the valley, who passed along it on foot, on horseback, and in carts.
By the Court: The first person witness had ever known interrupted when travelling the road was Mr Valentine, who had been stopped a few months ago by Cudby.
By Mr Brandon: In the early days section 20 had been occupied by Maories, afterwards by a man named Robinson, "who belonged to a Maori woman," and more latterly by a Mr Rumble. Witness had on several occasions himself travelled the line of road cut through the section.
At the suggestion of his Honor, a sketch was drawn and produced of section No 20, showing Cudby''s portion, Valentine''s portion, and the position of the right of way in dispute between the two. This sketch was shown to the witness, who pointed out on it that in the time of former occupants of the section, persons in the Hutt wishing to go to White''s line from the present Hutt road, were in the habit of going over a line in that portion occupied by Cudby for the purpose of procuring firewood at the back of the section.
His Honor considered that the Government maps produced in Court only showed that a surveyors'' line had been cut through section 20, and that there was no proof of the existence of a public thoroughfare through the land.
The learned counsel for the defence argued that it had been established that his client''s predecessors in the occupation of section No 20 had been in the habit of using the right of way through plaintiff''s property for several years.
Mr Brandon contended that it had not been shown indisputably that the line had been cut through the lower portion of section 20.
The witness Roe was recalled, and in answer to the Court, said that he had helped to cut the surveyor''s line, which was pegged out to a width of fourteen feet, and that it did pass through the portion of section 20, oocupied by Cudby.
Robert Ditchen said he had for eighteen or twenty years resided at the Hutt, and knew the road in dispute, which was exactly opposite his property. In the early part of his residence section No. 20 was owned by a Mr Bircham, and since that time the Maoris had lived on it, and more recently Mr Robinson, Mr Valentine, Mr Hall, Mr Jackson, and by Mr Cudby. The only person he had seen drive a cart along the right of way through the section was Mr Valentine, but all the occupants were in the habit of driving cattle, horses, and sheep to and fro between Valentine''s land and the main road through Cudby''s land. Before Cudby occupied his portion of the land, it was the property of some Maoris who had lived there.
By the Court: The piece of land about which the action has been brought, has, within the last twenty years, been is the occupation of the natives.
By Mr Borlase: In old times there was a little lane fenced in leading from the Hutt main road through Cudby''s land on to Valentine''s, but within the present year Mr Cudby has pulled down one of the fences and taken in the lane as part of his portion of section 20.
By the Court: This little lane was used by the Maoris, by Mr Jackson, by Mr Hall, and by Mr Robinson, as a thoroughfare.
By Mr Brandon: Mr Cudby stopped Mr Hall using the lane, which was never a road common to everyone.
Charles Keys, a carpenter, who had for eight and twenty years resided at the Hutt, knew the right of way in dispute, which he had helped to lay out. The original intention was to lay out a main road from the beach up the valley, sixty-six feet wide, but after the line was cut, the road was not made. He knew the land occupied by Cudby, and that occupied by Valentine, and had known the right of way to have been used as a public thoroughfare for many years; he had used it himself for more than twenty years, and had for the same period seen everybody who wanted to go from the present Hutt road towurds White''s line pass up the lane.
Cross-examined by Mr Brandon: Witness knew the country well, and remembered that many persons had occupied the land now in Valentine''s occupation between his occupation and that of the Maoris. The line cut by the surveyors was not subsequently made a main road.
William Hunter, a laborer, who had resided at the Hutt since 1852, knew that Mr Valentine was in possession of a portion of section No 20, and that the nearest way to a certain portion of the Hutt Road was down a narrow fenced line which passed by Cudby''s portion of the same section. He had often used the line himself when passing from the road towards White''s line, and knew that both Maoris and Europeans frequently did so. He had been stopped by Cudby in the early part of the current year, and told not to pass up the line as it was a portion of his property.
Cross-examined by Mr Brandon: Witness was not aware that previous to his being stopped by Cudby there ever had been any question as to the right of persons travelling up and down the line. When the natives were owners of the section now jointly occupied by Valentine and Cudby, they used the line without interruption; so he believed did Mr Rumble and Mr Jackson.
This closed the case for the defendant.
Mr Brandon did not consider that anything had been adduced to which he need reply. It had not been denied that Valentine owned a portion of section 20, and Cudby another, neither was it attempted to show that the trespass complained of had not existed, in fact, so far from such being the case, it had been confessed that the defendant had used the supposed right of way on plaintiff''s land, and the only evidence in the matter had been adduced with an attemp to show that prior occupants to Valentine had for twenty years done so without molestation. This was what it had been attempted to prove, and if it had been proved the plaintiff would have been out of court. But, he argued that it had not been proved. The Maoris who had been said to use the line in dispute up till the section was divided, held the land in common; therefore those at the back of the section by passing through the front portion were only moving through their own land, and could not consequently be said to make use of any particular line of way. Again, Rumble owned the whole section, so the same argument applied in his case, but when the section had been divided, and Hall, Valentine''s penulfimate predecessor, commenced the same practice, it had been shown that Cudby had stopped him.
His Honor did not consider that the defence had proved an uuinterrupted user as a right for twenty years, and thought there was no case to go to a jury. The issues appeared to him most simple. They were — lst. Was the defendant at the times of the trespass in possession of the land mentioned in the pleas? That he was had not been disputed. (2nd.) Did the occupier of such land for twenty years before the suit, enjoy as of right and without interruption a way on foot and with cattle from a public highway commonly called the Hutt Road, over the land of the plaintiff? This was the whole essence of the case, and if it were shown they had so enjoyed the right, the defendant was entitled to a verdict, but it had not been shown.
Mr Borlase contended that he had proved that the Maoris, Rumble, Hall, and Robinson had all used the line of road.
His Honor replied that the Maoris owned the whole section in common between them, and that therefore where there was an unity of possession there could be no question of right of way.
Mr Brandon said that he would prove by evidence that Jackson had paid Cudby rent for the piece of land in dispute, and had been authorised not to give persons leasing from him right to use it. He then called the plaintiff
John Cudby, who said that he rented a portion of section No. 20 from the natives, and that Mr Valentine was in possession of another portion of the some section. Edwin Jackson once occupied Valentine''s piece of land for several years, and used to cross witness'' land, not as a right, but had been permitted to do do so on payment of fifty shillings a year, and the right of any timber on his land. Until Jackson so arranged, no one had ever used the road, and when arrangements between Jackson and Valentine for the lease of the land were pending, witness told Jackson to take care and inform Valentine that nobody would be allowed to use the right of road. Valentine subsequently wanted witness to enter into a similar arrangement with him, but witness refused. Valentine then used the road, and injured the fence, and witness summonsed him to the Resident Magistrate''s Court when the case was dismissed, the question of title being involved, and the matter thus beyond the jurisdiction of the Court.
Cross-examined by Mr Borlase: Jackson used to pay me fifty shillings a year for the use of the road, and let me have the useless timber on his land. He only gave me fifty shillings once. Hall never paid anything, but never used the road without permission.
Edwin Jackson, of the Hutt had held under lease a portion of section No 20, Lower Hutt, which he had subsequently leased to Mr Valentine. During his tenure of the land, he had never considered that he had a right to reach the main thoroughfare through Cudby''s land, but it being nearer for him, he had obtained permission from Cudby to use the right of way. Witness had agreed to pay 50s a year, and some timber if he were allowed to use it, and exercised his right thus purchased until he sold out to Valentine.
Cross-examined by Mr Borlaae: Witness had never mentioned to Valentine the agreement he had entered into with Cudby.
Mr Borlase could not, in the face of the evidence of the last two witnesses, press the case any further.
His Honor then submitted the following issues to the jury. 1st. Was the defendant at the times of the alleged trespass possessed of the said land in the plea mentioned as therein alleged ? Answer- Yes.
2nd. Did the occupiers of such land for twenty years before the suit, enjoy as of right, and without interruption a way on foot and with cattle from a public highway, commonly called the Hutt road, over the land of the plaintiff? Answer — No.
3rd. Was each of the alleged trespasses a use by the defendant of the said way ? Answer — Yes.
4th. To what damage, if any, is the plaintiff entitled ? Damages, 20s.
The jury thus returned a general verdict for the plaintiff with damages 20s.
Hie Honor gave costs in favor of the plaintiff.
The Court then adjourned at 6.40, until 10 o''clock this morning, when the only case for trial will be that of Morton v. Brown.