Fallen leaves and fruit

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arborlad
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Re: Fallen leaves and fruit

Post by arborlad » Wed Nov 14, 2018 9:53 am

arborlad wrote:
Wed Nov 14, 2018 8:48 am
TO wrote:
Tue Nov 13, 2018 5:53 pm
arborlad wrote:
Sun Nov 11, 2018 10:56 am
having a type of fence that allows for the removal of a panel for replacement or maintenance will not turn that panel into a legitimate means of access into your garden.
Any means of access is a legitimate means of access when you are exercising your lawful right.



The panel is not a means of access, it is a means of preventing access.


................which is all a bit academic because the OP has wisely secured the panels so they can't be removed.
arborlad

smile...it confuses people

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thin and crispy
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Re: Fallen leaves and fruit

Post by thin and crispy » Fri Nov 16, 2018 12:37 am

TO wrote:
Tue Nov 13, 2018 5:53 pm
arborlad wrote:
Sun Nov 11, 2018 10:56 am
having a type of fence that allows for the removal of a panel for replacement or maintenance will not turn that panel into a legitimate means of access into your garden.
Any means of access is a legitimate means of access when you are exercising your lawful right.
Unless, as you have said, availing oneself of that 'means of access' causes damage (which it undoubtedly would in my case).

TO wrote:
Tue Nov 13, 2018 5:53 pm
thin and crispy wrote:
Sun Nov 11, 2018 3:12 pm
The judgement says 'If a tree grow in an hedge,...' It's plain English: if the tree doesn't grow in a hedge, the rest of the sentence cannot apply.
You are dancing on the head of a pin.
Yet I'm confident that I won't fall off.

TO wrote:
Tue Nov 13, 2018 5:53 pm
Putting a 'top rail' on the fence which is a right-angled equilateral triangle with the equal sides the width of the fence panels and so that the hypotenuse faces the neighbours would sort out his apple balancing.
Or, indeed, either orientation - a state of unstable equilibrium would be achieved either way. The Prick strips will be more effective than wood, however, because they are plastic - which Steinerists view with the same degree of horror as Dracula would a garlic suppository.

TO wrote:
Tue Nov 13, 2018 5:53 pm
I am becoming embarrassed about posting on this site and so have decided to depart. I will leave those seeking advice in the hands of those who are, by and large, uneducated, ignorant, opinionated, inexperienced, hypocritical, inconsistent, lack understanding, and think that urging posters to commit criminal actions is a good idea.
I'll be sorry to see you go, TO, although I think it's a bit harsh to characterise forum members in that way. Everyone brings their own experience and views to bear, and I think, in many cases, that's just as valuable as a narrow, purely legal perspective. Whilst being the backdrop to most of the problems discussed here, the law is only a small part of normal life; and with good advice (which many forum members are more than qualified to offer) garden/property issues can often be resolved without recourse to it.

It's a shame that my question has caused such an an argument about one particular point of law. It only concerned a few maggot-ridden apples after all; and it was never going to end up in the High Court. Nevertheless, I appreciate everyone's advice.
Prejudice, not being founded on reason, cannot be removed by argument. Samuel Johnson.

liveinpeace
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Re: Fallen leaves and fruit

Post by liveinpeace » Fri Nov 16, 2018 9:15 am

T & C
i think your response is most eloquent and very nicely worded, though this is a garden LAW forum and there is a clue in the title, i do think all aspects of help when dealing with a difficult neighbour are most helpful. when trying to reason why someone is acting the way they are a reasonable person, like yourself, tries to work out why they are doing things so crazy logically, and when no logic to their behaviour can be found, we are often only left with the law or humour in order to cope. living next to someone who's behaviour impacts on you just getting on with everyday life(not much to ask really) it can really get to you, and under your skin in a way that you dont understand unless you have lived it. I have wondered if i am losing it a bit, how my neighbour has managed to get me into a seething wreck at times. I have found the fact others on this site have had similar experience a definite comfort, i have also been most grateful for all the legal advice and really appreciated such educated people taking the time to help. i would find it very sad to think that as a humble pie baker i may be seen as "uneducated and ignorant" I understand that some posters are not here wanting to educate,but you have, my vocabulary has doubled sine using this forum!
If we cant get on and have discussions and opposing views, and heaven forbid get it wrong now and again and not find a way of getting on on this forum. then there really is no hope for us and our neighbours in real life.

Uriah Heap
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Re: Fallen leaves and fruit

Post by Uriah Heap » Sun Nov 18, 2018 3:05 am

liveinpeace wrote:
Fri Nov 16, 2018 9:15 am
T & C
i think your response is most eloquent and very nicely worded . . .

I understand that some posters are not here wanting to educate,but you have, my vocabulary has doubled sine using this forum!
Yes I thought the bit about Dracula and the garlic suppositry was almost poetic :lol: :lol: :lol:
This guy has a nice turn of phrase, see thread in the gardening section. Very funny.

despair
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Re: Fallen leaves and fruit

Post by despair » Sun Nov 18, 2018 12:24 pm

I think one of the best suggestions came from Arborlad

A trebuchet sending squishy rotten apples over the fence should make your point very eloquently indeed

Do make sure you soaked them in Roundup first though !

Morgan Sweet
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Re: Fallen leaves and fruit

Post by Morgan Sweet » Sun Nov 18, 2018 3:56 pm

You are not allowed to go onto your neighbours land or to lean over it to cut your hedge. You need the permission of your neighbour. The same is true about going onto your neighbours land to pick up windfalls or trim back branches.

The above is as stated on the Forum's Home page under Trees.

ukmicky
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Re: Fallen leaves and fruit

Post by ukmicky » Sun Nov 18, 2018 5:32 pm

We all have opinions and those opinion often differ ,even solicitors ,barristers and judges have opinions that often differ .

The law is very rarely straight forward which is why so many civil cases are heard in court
Any information provided is not legal advice and you are advised to gain a professional opinion

ukmicky
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Re: Fallen leaves and fruit

Post by ukmicky » Tue Nov 27, 2018 11:35 pm

Collaborate wrote:
Mon Nov 12, 2018 7:49 am
When an advocate makes a submission to a court that the law is X, he/she is asked to back that up by producing a statute or caselaw that supports the submission.

Mitten v Faudrye is a reported case. The ignorance of one poster on this site does not alter that fact. If the opposing advocate wishes to argue against the original advocate's submission they must counter with law of their own - in other words statute or caselaw.

ukmicky has produced nothing. I think that is very telling. I note also on this site he had this argument with TO back in 2010. He's had therefore 8 years to come up with something.
Or they can argue that the case cited did not create a binding precedent and then provide an argument as to why.


They say it’s good to start with a good foundation so here is the boring part first but you can skip to part 2 below which explains not only why mitten v Faudrye the case itself does not create a precedent .It actually has nothing to do with fruit,hedges and the right to enter someone’s land to collect it . It’s a shame people don’t actually read cases before they cite them.

Sorry everyone if you get bored with this as it is long but I need to go indepth to prove my case because collaborate says he is a solicitor and due to that people may hold his opinions up high above all others and also because I didn’t notice a post where I was called ignorant in it. I don't mind people disagreeing with me ,but it should be keep civil and once someone starts calling me names that’s different.


Firstly I fully admit I do not have a law degree. I do have A level law and do receive legal training occasionally as its a requirement of my job as I make decisions that's could cost my employer money or worse bad publicity should I make a wrong decision but I would not in anyway try to place my level of training to be anywhere near that of a law degree.That doesn’t make me ignorant however.

Firstly collaborate keeps saying mitten v Faudrye is a reported case and therefore creates a binding precedent. As a solicitor , if that's what he is he should know there is more required for a reported case to create binding precedent than it simply being reported. The most important aspect of a precedent apart from the case if it is going to be cited is the case report and the quality of information contained within it.. A future court will need to be able to read the judgement and understand the full facts of the case and why the court came to it’s decision. There needs to be a Ratio Decidendi or stare decisis

So lets examine what was actually cited and how much legal weight can be placed on this so called reported case. The full citation of the case is Mitten v Faudrye (1625) poph 161.163: 79 E.R 1259. From the a citation we can see this is a "reported case" and its from a case that came before the Kings bench and if you can read citations we can see from my citation above , I have cited both the original Nominate report from 1625 and the later english report where the old court records are now recorded .

The first potential problem we get legally with this case in respect to how influential it is and whether it can be considered a binding precedent is its age because in over 400 years it’s possible new statatory laws or later decisions in courts of equal status or higher could have overruled its decision . If it did originally create a precedent before it was used in court searches would be made of past and present laws which wouldn’t be easy but would be nessesary as the last thing you would want in court is for the defence to counter with a case you know nothing about.

The second potential problem is there were no actual official law reports produced between the years 1537 and 1835 which happens to span the period of this case .Now that is not a nail in the coffin but its enough to get the hammer ready to strike because the quality of the reports during those years differed greatly and whilst there were some that could be considered good many were not.

Case reports from diffferent periods of time are given different names . From the citation we can see the letters E.R which means the case report is from what they call the English reports .They are called the English reports as they need to separate them from case reports from before 1537 which they call the year books and the official law reports which started to be produced from 1835 to today.
English reports have another official name and are also called the Nominate reports they are called nominate reports as they were named after the person who reported or published the case, because E.R English reports were written and held by private individuals . Basically in the days of the nominate /English reports anyone could report a case and anyone did do it .The only ability required was being able to write as there was no professional or legal organisation like the bar council today overseeing or collecting what was being recorded . Which is why there were no official law reports during those years.

Unfortunately due to there being no standards many of the cases were not recorded word for word ,they were not recorded accurately and some were produced from fading memoires many years later . There are also some that were falsely attributed to be reported by well know court reporters or presided over by respected judges in order to gain more prestige so they could find there way onto the news papers of the time in order to make money .Who made the report in those days was very important as only certain individuals were of a high enough standing for their reports to be totally trusted.

The other problem for any case to create a binding precedent is the Ratio decidendi (the detailed reason for the decision ) must be recorded in the case notes. Many of these English reports do not contain that detail. ,The court probably did go into the detail at the time but the person recording the case didn't record it as it wasn’t required in those days as most reports were recorded for private collections or publication in news papers.
Law reports were not professionalised until they got their accredited status in 1835 when the bar council got so fed up with the unprofessional inaccurate reporting of cases they set up the Incorporated Council of Law Reporting . In doing so they set standards and from 1835 those new standards created what is now called the official law reports.

Just to show what the situation is with these old reports I've copied below the statement from one of the journals which holds the cases from the Kings bench for the years 1625 to 1627 and Mitten v Faudrye is a Kings Bench Report from between 1625 to 1627



Kings Bench Reports 1625 to 1627
None of the reports of cases from the Court of King's Bench from the first two years of the reign of Charles I is very good, but, on the other hand, none of them is totally useless. Many of these reports have been insulted by later judges, but, as time has gone by, they have been regularly cited, being the best evidence of the law at the time.[/i][/b]
In regards to old cases ,especially those in the E.R reports .Whilst precedential law history can be dated back to before the 12th century there was nothing that forced a court to adopt the common law standards of today . Precedential law (Common law) only come of age after the Judicature Acts of 1873-1875 . Three very important things occurred due to the Act ,the first was the hierarchy of the courts ,which. established decisions from lower courts were not binding on higher courts. The second thing was it brought together common law courts and equity courts under one roof which meant fairness had to be considered along side common law before a decision was made . Before the act they were separate courts and the claimant decided where to take his case and common courts did not consider equity (fairness ) when making their judgements .Lastly the same Act also allowed bad decisions to be challenged on appeal as there was no right of appeal prior to the Act and the Act created what is now called the appeal court.
Due to the Judicature Act any case that came before it, even if it was once considered a binding authority lost some of its it authority as fairness (equity)was not a consideration when the original judgement was made in a common court and secondly because there was no right of appeal where bad decisions could be challenged.

Now if you wish you can totally ignore all the above ,I just thought it would be good to provide a bit of history which can all be checked,




Part 2

The case Mitten v Faudrye itself is not a good example of a case to use as evidence of a binding precedent. I will explain why.

Remember you have been told the below by collaborate

Mitten v Faudrye was a 17th century case decided by Mr Justice Popham. Its reference is Mitten v Faudrye, 79 ER 1259 (1626). This is a law report. If you question whether this case, which is still referred to today, is a legal precedent, you should not be posting advice on a legal website. It’s basic stuff

The first thing he got wrong in his statement above was when he said the case was decided by Justice Popham . it wasn’t Justice Popham because justice popham was already in his grave when this case was heard . I can understand why collaborate thinks its Justice Popham as I know why he went wrong but as he says I’m ignorant what does that make him. As a solicitor he should not make such a basic error. Imagine standing up in court and making such an error. I will explain more later.

So everyone stay with me

Don't you think its weird if this was a binding case there would be many future cases after Mitten v Faudrye in 1625 right up to to today where the judgement in Mitten v Faudrye was cited and the decision in Mitten v Faudrye was the deciding factor in the future judgement. Granted its been mentioned here and there in a few cases and there are books like the Law of trees which has a reference to it and there are even a few other legal journals mainly from other countries that mention it but not one case has been won that I can find since Mitten v Faudrye due to the decision in Mitten v Faudrye .

There are several good reasons why that is the case.

The historical report citation from the nominate report from the time of the case is Mitten v Faudrye (1625) poph 161.163. and contains in the citation the name of the person who reported or published the case ,not the judge who presided over it. The English reports do that as its important to know who reported or published the case due to the years these reports are from as a well known and respected person increased the authority of the report.

From the citation above you can see the letters ''poph'' which tells us who the person who published or reported the case in mitten v Faudrye ) was Justice Popham who was actually a very well known and highly respected judge.He was actually the judge in the case for those who they tried to blow up parliament. Without him in theory we would have no Guy Fawkes night.

Unfortunately for Justice Popham however he didn’t live until the year 1625 , he died in 1609, 16 years before the actual case mitten v Faudrye . Remember I previously mentioned about falsely attributed English report cases by famous people . So not only is collaborate wrong when he says the case was heard by Justice Popham ,the actual legal citation is also wrong as the original case report has been falsely been attributed to him.

If you were to read the official journal that contains all of justice Popham "reported cases" they actually say all his reported cases post 1609 from page 120 onwards even though in the citations it says he reported the cases ,they could not have been by him and were therefore falsely attributed to him due to his death 1609 and the names of people who reported the cases are therefore unknown.

That on it own calls into question if the report in Mitten v Faudrye is good enough to create a binding precedent as the E.R report can no longer be trusted if the person cited as reporting or publishing had nothing to do with it and the actual person who was responsible is unknown .However there is worse to come.


Lets now get to the actual case,

So looking at what has been posted previously you would think in the actual case of Mitten v Faudrye the judge ruled in the favour of a neighbour going onto his neighbours land to collect his fallen fruit and then famously came out with the ruling and words.
''If a tree grow in an (sic) hedge, and the fruit fall into another man's land, the owner may fetch it in the other man's land ''
Well believe it or not he didn’t ,no one did.

You may be surprised to find out Mitten v Faudrye had nothing to do with fruit and hedges. I've posted the actual pleading of the defendant below in the actual words of the case judge reported to be justice Doderidge (not Popham)..
The defendant pleaded the sheep were trespassing upon his land, and he with his little dog chased them out, and as soon as the sheep were out of his land he called in his dog, but thus ; I chase the sheep of another out of my ground , and the dog pursues them into another man’s land next adjoining and I get my dog and the owner of the sheep brings trespass for chasing of them .
So why all the confusion ,how can people get it so wrong.

Looking at most of the references out there where they mention those words above most of the references seem to have been replicated from one source that originally got it wrong .

The words ''If a tree grow in an (sic) hedge, and the fruit fall into another man's land, the owner may fetch it in the other man's land '' were mentioned in the case as they looked at the history of trespass and mentioned references to trespass from previous court cases and books. One of the references was to Bracton where the words are written and bracton is the actual original source. For those who don’t know ,Bracton was a clerk and a book was published by him in the early 13th century containing mostly the writing of William Rielly about the law and customs in England .

It contains what he believed should be the laws of the land taken from ancient roman law and ffrom other peoples views in books like Leges Edwardi Confessoris. His book did influence the law but was not the law and he only wrote what he believed the law should be under hypothetical circumstances. No cases are cited for those hypothetical circumstances. There is no Ratio Decidendi or stare decisis ,its all personal beliefs .

It seems however there are people out there who publish things like books ,without checking out what they are actually citing and there are also many people who read something on the internet and believe it without performing proper research first.

Sorry if there are a few typos.

The end
Any information provided is not legal advice and you are advised to gain a professional opinion

Collaborate
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Re: Fallen leaves and fruit

Post by Collaborate » Wed Nov 28, 2018 7:43 am

Sorry ukmicky but I haven't read all of your post.

I'm sure your A Level law trumps my law degree and over 25 years practice as a solicitor.

In case some are dubious about that, let's have a look at what Halsbury's Laws have to say about this case:


There is some authority for the proposition that if a man is unable to lop his trees without the boughs falling upon the land of his neighbour, he may justify the felling upon his neighbour's land Footnote 1, and that if a tree grows so that the fruit falls upon the land of another, the owner of the tree may enter upon the other's land for the purpose of taking possession of the fruit Footnote 2.
The footnotes are:
1.
Dike and Dunston's Case (1586) Godb 52.

2
Mitten v Faudrye (1626) Poph 161 at 163. It has been observed that: 'If trees grow in my hedge, hanging over another man's land, and the fruit of them falls into the other's land, I may justify my entry to gather up the fruit, if I may make no longer stay there than is convenient, nor break his hedge' (Vin Abr Trespass L a); and it is stated that the same rule applies when trees are blown over by the wind (Vin Abr Trespass H a 2). Cf Anthony v Haney (1832) 8 Bing 186. However, the existence of such a right seems to have been doubted in Mills v Brooker [1919] 1 KB 555 at 558 per Bray J.
There is in Lexcel a report of the case as follows:

Millen (or Miller) v Fawen (or Fawtrey or Fawdry or Hawery)
sub nom Mitten v Faudrye
(1626) Benl 171, Lat 13, 119, Poph 161, W Jo 131, 79 ER 1259
Court: pre1874
Judgment Date: circa 1626
Catchwords & Digest
AGRICULTURE - FORESTRY - TIMBER AND TREES - PROPERTY IN TREES AND LIABILITIES OF DIFFERENT CLASSES OF OWNERS - ADJOINING OWNERS - OVERHANGING TREES—RIGHT TO TAKE FALLEN FRUIT

ANIMALS - DOGS AND HORSES - DOGS - KILLING OR INJURING DOGS - BY PERSON ACTING IN DEFENCE OF PROPERTY - SHEEP CHASED OFF LAND—PURSUED INTO ADJOINING LAND

ANIMALS - LIABILITY OF OWNERS AND KEEPERS OF ANIMALS - HARMLESS DOMESTIC ANIMALS - LIABILITY FOR TRESPASS - ANIMAL ENTERING HOUSE OR SHOP

TORT - SPECIFIC TORTS - TRESPASS AND ASSOCIATED TORTS - IN GENERAL - CHARACTERISTICS - WHAT AMOUNTS TO TRESPASS — UNINTENTIONAL ACT

If trees grow in the hedge and the fruit falls into another’s ground, the owner may go in and take it (Doddridge, J).

In an action of trespass for chasing sheep, it appeared they were trespassing upon certain land, and defendant with a dog chased them out, and as soon as the sheep were out of the land he called in his dog, but the dog pursued the sheep into another man’s land next adjoining: Held trespass did not lie, as it was lawful for defendant to chase the sheep out of his own land, and he did his best endeavour to recall the dog.

If a man is driving cows through a town, and one of them goes into another man’s house, trespass does not lie for this, because it was involuntary, and a trespass ought to be done voluntarily, and so it is injuria, a hurt to another, and so it is damnum (Doddridge J).

A man is driving goods through a town, and one of them goes into another man’s house, and he follows him, trespass does not lie for this, because it was involuntary, and a trespass ought to be done voluntarily, and so it is injuria, and a hurt to another, and so it is damnum (Dodderidge J).
This also mentions 4 other cases in which it has been considered:

Considered Hines v Tousley (1926) 95 LJKB 773, 19 BWCC 216, 70 Sol Jo 732, 135 LT 296 CA circa 1926 Citation information only
Considered Deane v Clayton (1817) 7 Taunt 489, 1 Moore CP 203, 2 Marsh 577, 129 ER 196 pre1874 circa 1817 Neutral treatment indicated
Considered Gundry v Feltham (1786) 1 Term Rep 334, 99 ER 1125 pre1874 circa 1786 Neutral treatment indicated
Distinguished Beckwith v Shordike (1767) 4 Burr 2092, 98 ER 91 Ct of KB 01/06/1767 Neutral treatment indicated
Clearly the whole of the legal profession is entirely wrong placing any sort of reliance upon the case of Mitten v Faudrye. If only we had asked ukmicky and his A Level law for advice earlier.

BTW for those interested in the case of Mills v Brooker, the only mention I can find of it is this

Mills v Brooker
[1919] 1 KB 555, 17 LGR 238, 88 LJKB 950, [1918-19] All ER Rep 613, 63 Sol Jo 431, 121 LT 254, 35 TLR 261
Court: KBD
Judgment Date: 17/02/1919
Catchwords & Digest
AGRICULTURE - FORESTRY - TIMBER AND TREES - PROPERTY IN TREES AND LIABILITIES OF DIFFERENT CLASSES OF OWNERS - ADJOINING OWNERS - OVERHANGING TREES—RIGHT TO CUT—RIGHT TO APPROPRIATE FRUIT
TORT - SPECIFIC TORTS - TRESPASS AND ASSOCIATED TORTS - WRONGFUL INTERFERENCE WITH GOODS - INTRODUCTION - SUBJECT MATTER - NATURAL PRODUCTS - FRUIT OF OVERHANGING TREES

Where the branches of fruit trees growing near their owner’s boundary overhang the land of the adjoining owner, the right of the adjoining owner to lop the branches does not carry with it the right to pick and appropriate the fruit, and if he does so he is guilty of conversion and liable to the owner for its value.
There are other mentions on google.
Authority for saying that any fruit you do pick up fruit from a neighbour's tree you must offer it back, so nothing new there.

ukmicky
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Re: Fallen leaves and fruit

Post by ukmicky » Wed Nov 28, 2018 7:37 pm

If you think anything what you have posted is in anyway good enough to show that Mitten v Faudrye created a binding precedent , then god help the legal profession.


If you read the case you can see it doesn't create a binding precedent.

The case also has nothing to do with fruit falling into a Neighbours land from a hedge so the material facts of the case are totally different.

If you understand what the law requires a law report to contain for it to create a binding precedent you will see everything what is required is missing .Where is the Ratio decidendi

There were no official law reports from those days and no one knows who is responsible for this legal report. Do you not understand for a law report to mean anything the source of the information must be known . Who wrote and published this report.

Justice Popham who it was reported to be from and who you believe made the ruling wasn't even alive when the case was heard.

Even the original nominate report the English report comes from and everyone is using is factually incorrect as it has justice popham (poph) abbreviated in it.

Even the kings bench reports state it has been falsely attributed to him

So your basically saying an unofficial Law report of totally unknown origin that has nothing to do with the precedent it was meant to set ,that has been falsely attributed,that contain no Ratio decidendi and was before the judiciary act so equity wasn't considered and with no right of appeal sets a binding precedent.


And forget about turning to google that is for amateurs .
Last edited by ukmicky on Wed Nov 28, 2018 7:57 pm, edited 1 time in total.
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mr sheen
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Re: Fallen leaves and fruit

Post by mr sheen » Wed Nov 28, 2018 7:55 pm

Come on Guys...
10 pages and detailed legal precedent discussions because someone has put apples on a wall and collects/does not collect his windfall apples ...a situation the OP has tolerated for 2decades....the arguments being presented will never see the light of day in court in relation to this thread.

Collaborate
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Re: Fallen leaves and fruit

Post by Collaborate » Wed Nov 28, 2018 10:06 pm

ukmicky wrote:
Wed Nov 28, 2018 7:37 pm
If you think anything what you have posted is in anyway good enough to show that Mitten v Faudrye created a binding precedent , then god help the legal profession.
As a certain politician recently said, the age of experts is over.

The age of the idiot has begun.

ukmicky
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Re: Fallen leaves and fruit

Post by ukmicky » Wed Nov 28, 2018 10:40 pm

Collaborate wrote:
Wed Nov 28, 2018 10:06 pm
ukmicky wrote:
Wed Nov 28, 2018 7:37 pm
If you think anything what you have posted is in anyway good enough to show that Mitten v Faudrye created a binding precedent , then god help the legal profession.
As a certain politician recently said, the age of experts is over.

The age of the idiot has begun.
So true
Any information provided is not legal advice and you are advised to gain a professional opinion

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