CIVIL SITTINGS.

Auckland Star, Volume IV, Issue 1021, 28 April 1873, Page 2

CIVIL SITTINGS.

Special Jury Cases,

C. A. HARRIS versus J. 8. MACFARLANE. Mr Rees appeared for the plaintiff, and Mr Hesketh for the defendant. Upon calling over the jury Messrs Soppett and Robert Walker did not appear. Medical certificates were put in. His Honor said he did not usually accept such certificates, but as it had been customary to do so here he would follow the practice. The following gentlemen wereempannelled: Matthew Henderson, John W. Filder, George Crummer, WilUam Nicholson, William Thomas Ball, Henry Partington, Laurence D. Nathan, Henry Ridings, William Baker, Joseph Howard, Albyn Martin and William Earle. ''

This action, which was another phase of the many actions between the plaintiff and defendant, and Mohi and Craig, came before Hiß Honor the Chief Justice three months.ago in the form of an application for an injunction. His Honor at that time refused to grant the injunction, and the question of right was I now raised. The question involved related to the, use of the Waitekuri river, and of certain lands at its mouth. The plaintiff j possesses certain lands at the mouth of the Waitekuri river, and the defendant has a block of land higher up on the same river. 'It has been the practice of the defendant to , float logs down the river ; and in order to facilitate their exit to the sea a canal was cut jby him at ttye mouth of! the river across the [entrance, to which gates "were placed, a building erected oh the ground, afad trees cut down. [This canal the plaintiff alleged is 'cut on his land, but the defendant pleads that it is below high-water mark, and is beach land; It is also alleged by the plaintiff that the defendant, by floating his logs down the Waitekuri river, committed a trespass upon bertairi land below water, the property of the defendant,.and had Caused a bank to form at the mouth of the said river, thereby damnifying the plaintiff. In answer to this the defendant pleaded that the said river was f, public navigable river open at all. times tq : he use of all persons for boats, and barges^ and for floating down logs, and that the alleged trespasses consisted in the proper use of the said river as a public navigable river. It was also' alleged that' prior to the time 6 hen plaintiff acquired his title to the ikutawatawa block. the'defendant had obtained rights over the said river by virtue Cf a lease from MphiiMaungakahia and other Natives. •To put the case simply it may be ritated thus: The plaintiff owns a block of kind called Hikutawatawa at the, mouth of tjhe!Wi.itekuri river. Mr Mac.arl_n,e' hold-<' ing from Mr Thomas Craig, owns the adjoining block, called Waitekuri, higher up the river. Tl\e action was brought to .restrain t(he defendant' from using the river which ii}ows from,his land into that^of the plaintiff, and so to the sea.' The plaintiff claimed that the bottom of the river and all upon it, that i£ the river itself, fs his property. But ajnother ground upon which the action rested yyafc that -the defendant had dammed the river above the Hikutawatawa block, and from time to time allowed a heavy flood of water to rush down with logs, which, carrying all before it, washed, away large portions of the banks, and the river was becoming. ,so shallow as to be useless to the plaintiff for floating his logs down; *It was claimed that the, defendant had no right, whether the river was a public or a private one, to do any aots. that would deprive persons lower down of the free and uninterrupted flow of the river

at all times. The damages were laid at £5000, but the action was mostly one tor , specific relief, to prevent the repetition ot tne acts complained of. . . -, Ten issues involving the questions raiseu. on the action were submitted to the jury. I Mr Rees opened the case to the jury ana in the course of his remarks said that according . to the law of England, and as applied £ America, when a river was not a P UD_«© navigable river but was a private river tne , owners of land on the banks had a right to . stop all traffic from above. I His Honor remarked that it became a most , important question ; if, in tbe event ola river not being a public navigable river at law, the whole of the traffic from above couia be stopped by the holder of a few acres ol landlowerdown, thenlthe forests of the interior would be closed. The Court was required to apply all English legislations existing m 1840 to New Zealand and this was undoubtedly a case in which English law could be applied ; if Mr Rees showed that his view of English law was a correct one it might become an. important question for legislation by the JNew Zealand Parliament.