THIS DAY.

Auckland Star, Volume IV, Issue 1023, 30 April 1873, Page 2

THIS DAY.

The case of Harris versus JMactanane was resumed. His Honor said it was necessary that he should rule upon the point whether defendant's deed from the natives granted him a prior right over the creek where it flowed through the plaintiff's land. He must1 saythat as at present advised he did not see anything in the deed which could • maintain such a claim. The lease applied only to that part of the creek which flowed through the defendant's own land. He ruled, therefore^ that the defendant's plea to the exclusive use of the creek as against other riparian proprietors had not been sustained. Mr Hesketh said of course he could only enter an objection against his Honor's ruling on the point. Mr Hesketh then opened his case to the jury, and calledJor the defence, John Macfarlane, formerly manager of Mr Craig's mill, who deposed : There is no other way of getting out timber from Waitekuri block except by the creek. A tramway, could be made, but the timber, if brought out such a distance, would not pay for working. The block would be worthless without the use of the creek. In March, 1871, the creek was quite clear. We did not re-com-mence driving until October, 1871, when ths creek was completely blocked up with Harris's logs. These logs had coir - <t?wn at different times, and, being allowc<i '" :nain there, had gathered up the snags a;.. ''hish andi obstructed the stream. The ta;i... had githered between the logs. We dug a way up to the logs to clear the creek. It took his months to clear a passage through the logs. The position of the logs rendered the creek perfectly useless. Mr Harris sometimes sent us men to assist us in removing; his logs. He never objected to us taking out the logs. The creek was then so bad |that after several attempts to use it we abandoned, it. Such a creek requires constant attention that keep it clear. Since we made the canal we have not paid that attention as we used to do by clearing the channel below the booms. Where the gate of the canal is I have seen the land frequently covered at high water. The sides of the canal are timbered and it would float a log six feet in diameter. We were obliged to make supports for the canal gate, and we obtained the earth for the purpose from the bed of the creek and the bed of the canal. The canal went through a mangrove flat. The ground was frequently covered by the tide. Below the canal is a small island surrounded by' high water, on which vegetation grows. I put the boom-posts and canal in their positions in. order to be below high water-mark. I have seen the tide frequently, past them. I have seen the tide two feet up the walls of the little house erected on piles to keep tools in. We made the creek much better than it was before we used it. It is only from the canal gate to the sea that it has been neglected. The tendency of driving is to improve the creek. The creek may be a little wider than, before, but not to a material extent. A fresh will do a great deal more damage to a creek than driving, because a fresh is preceded by heavy rain, which softens the banks. I have seen large sections of land washed ?\way on the Waitakerei and other creeks by freshes. I have seen freshes in $his creek overflow the banks. I have seen no material alteration in the banks during 1872. I know that Mr Harris has availed himself of our driving to take down his logs. The booms would not cause silting up in the creek. We have never done anything to obstruct the creek ; on the contrary we have endeavoured to keep it clear.

By Mr Rees : The land where the canal is was only covered during -high spring tidesThere is another creek which could be used for getting'down a.small portion of the tiiriber growing on the Waitekerei block. We'kever interfered with Mr Harris's use of the creek. The creek is of no use in its normal state. The canal does not in any way interfere with the use of the Waitekerei creek. The sea surrounded the gate of the, canal at spring tides.

His Honor remarked that he would have to direct the jury that by the boundaries fixed in the deed held by the plaintiff Hikutawatawa, goes down to the line of ordinary high tides, and riot merely to the mark of spring tides. That was the law on the question as laid down in English practice.

Examination continued : He could not say that, ordinary tides came up there.. The channels on' the beach were filled up by the tide: washing across the1 channels".