THIS DAY.

Auckland Star, Volume IV, Issue 1022, 29 April 1873, Page 2

THIS DAY.

..The case of' Hams versus Macfarlane iffras' resumed. _, (1 ' His Honor remarked that the only facts which could arise out of the evidence in the case were either a series of acts of trespass or damage to .the,, plaintiff's property. These were all minor questions. The driving of defendant's logs would no doubt have caused, dome of the damage. The plaintiffs logs would cause some, and probably freshes would contribute to the damage. The chief questions were the legal points raised on both sides. The argument urged by Mr' Bees, on behalf of the plaintiff, that, as the Waitekuri is not a navigable river, the defendant has no right to float his logs down. And the point raised on the other side by Mr Hesketh,.that, apart from the rights of riparian proprietors to the common use of a ! stream, the defendant, under a lease granted by the native owners of Waitekuri and Hikutawatawa, and set forth in the pleadings, has priority of right to the use of the Waitekuri, and to erect booms at its mouth ; and that the: plaintiff'holds Hikutawatawa subject to those reservations conceded to the defendant by the original owners of the Soil before the plaintiff had acquired any title to i Hikutawatawa. If the parties to the action' would consent to accept a verdict forjfche. plaintiff with nominaljdamages, so as to allow those questions to be'settled by the Court of Appeal, it would simplify the case. The extent of the damage must be wholly a matter of speculation, and could not' be jdetermined without' a visit to the ground. His Honor remarked that since*Ke . hadcometo; Auckland many legal 'questions I of paramount importance to New Zealand had been. brought under his notice <m the; j endeavour to apply the law of England to the circumstances of a new country. The ; next generation would have cause to thank | both lawyers and non-lawyers for the settlej ment of these questions by present litigation. Mr Bees said his client was willing to accept la verdict of £5, subject to the settlement of 'the law points by the Appeal Oourt. This i offer was made without prejudice, i Mr Macfarlane declined to come to any •arrangement, preferring to leave the case iwith the jury. „. I His Honor said that in that case, as at present advised, he would have to direct thejury to find a verdict for the plaintiff, with such damages;'as'they thought h&d< been Icaused. The defendant,inot having consented jto the .stating, of a special case, would then, ■if he-wished to proceed further, have to move the Court through ;an application in banco and other processes.provided by the Jaw. •> - } ■■ ■ ■ ■ "■■! /■ •; I . William, Henry Philp, bushman, in the employ of ,Mr Harris, deposed that he knew jthe Waitekuri Creek, where it runs through Hikutawatawa. Before the canal was cut ;by ' defendant ; there was a strip'of land Icovered with ti-tree, flax-gras,s and rushes.. jETe never saw the tide cover that land. (Where Mr Macfarlane's , boom - post on jfche left side of the river Tvas sunk the land jwas the' sainb; as' at th.J3 sitei "of. the panal. There was a good channel where Mr..Harris's logs were taken out at one fame, but it had. become filled up. The otj jdinary price for' collecting logs and rafting them down the .creek w,as three shillings and Mnepence, but' witness was getting, #f teen shillirigd per log for taking out these because jbhey were so bard to remove in consequence of the mud that had collected above the booms. rlfe was also difficult" to take them, out, because when he had cleared the; channels the defendant's men opened their jlams to- drive down logs'and filled up the phanhels again:'• The driving had cut away all the bends of the river, and had in some places shifted the channel altogether. It had made the' end of the stream nearly twice qa wide as it was originally. Freshes did hot damage the banks of the river He'did not think £2000 would put the Stream in as good a condition as it wa3 before Mr .Macfarlane commenced driving. The iien employed by Mr Harris could not do half the work now that they did before the lj>ed of the creek was altered. Mr John Macfarlane refused to let Mr Harris' logs pass through the canal. Plaintiff's booms were thrown upon the bank. Witness had seen a , number of fruit-trees, owned

Iby Mr Harris, -which had been burned. IMr Harris had no men working I there, but there were a number of Mr Macfarlane's men engaged clearing the creek. It is estimated that there are five million feet of timber on the Hikutawatawa block. The'Waitekuri creek is necessary to getting out those logs. Three hundred logs had been in the canal at one time. By Mr Hesketh ; When Avitness commenced to take out Harris's logs the creek was in the same condition as at present, all stopped up. Craig's driving took Harris's logs down the creek when there were any in the creek. Macfarlane, before be had cut the canal, took spine timber out of the mouth of the creek with considerable labour. It wouW not have been possible to pull a boat up the Waitekuri Creek more than half-a-mile at high tide.