ACTION FOR DAMAGES.

Auckland Star, Volume LIII, Issue 87, 12 April 1922, Page 10

ACTION FOR DAMAGES.

AI/LEGED INJITRT TO PLANT. I VLAINTJFI- , I'OMPANI , NONSUITED. Arising out of the claim for £2800 'by j the Reyburn Lime Company, .Ltd., ■ against the Hikurangi loal Co., Ltd., for damages alleged to have been caused to plaintiff's plant and buildings at α-likiirangi as a result of the undermining of the land on whii-.h they were erected by tht defendants in the course of their" coalmining operations, judgment was promulgated by Mr. .lustic* Ilerdman in the Wuprcme Court, yesterday. His Honor, ill the course of hU judgment, traversed the evidence at great length, and stated that the evidence giwn at the trial proved that in many places not immediately adjacent to the land occupied by the Lime Company, the land had subsided because of the coalmining operations, but no complaint -\va--i niiide about these subsidences. They were the result of legitimate coalmining operations, and it was not proved that they were in any way connected -uiih any injury which the plaintiff coinpauy may have sustained. His Ifonor then continued his narrative 'of events. The question lv decide, apart from any legal defence which Mr. Richmond may have relied upon, was: Were the disturbances of the surface of the land which damaged the plaintiff caused by the coalmining operations of the defendant company, and ivere they caused by the company's operations since Mary Belton was granted tho lease i>n May 1, 1910? The evidence relevant to this ijuestion was "by no means clear and convincing. It seemed to him that the plaintiff company had no claim for auy weaken- j ing of the surface of the soil ivhich j may have been caused by the opera ticms of the defendanr company prior to ilay 1. IiHO. the date upon which Mary Belton"s lease commenced. His Honor could not see how the plaintiff's claim to an undisturbed surface could extend back lieyond that date, for ii possessed no rights prior to that date. Evidence was (railed to prove tliat ! the operation of the company's niacuin- j cry or the weight of the plant and lime, j or the percolation of water, or that ! all these factors combined, caused ; damage which the plaintiff company' claims to have suffered. It was true ' that the cracking in the surface of the plaiirtiff company's ground was coincident with increased activity in the company's operations and with additions to j i their plant. But just as his Honor was j unable to say that it was proved to his satisfaction that the defendant com-1 pany's coal mining operation* caused injury, so he was unable to say that the factors that he alluded to above account for the damage done. The onus of proof was on the plaintiff company, and that onus had not. in his opinion, been discharged. ! He therefore found that it had not i been proved to bis satisfaction that the defendant's coal mining operations had caused the damage which the plaintiff j company complains of. He. also found that, assuming it to have been proved that the defendant company's operations caused th« damage which the plaintiff company claims to have suffered, it had not been proved that these operations were carried on I after May 1. 1910. This being the view he took of the evidence, plaintiff uumpanv would be nonsuited with costs as pet scale, wit-! nesses expenses and disbursement*'to he ! settled by the Registrar. | His Honor certified for three extra days and fixed the fee at £16 15/ per day. eec'ond counsel for four days and set a fee at £10 10/ per diem. Originally his Honor gave judgment for the defendant company, but Mr. Oetlcr " for plaintiff company asked that plaintiff company should be nonsuited. After some discussion between judge and eounseljiis Honor varied his judgment and ronsuited the plaintiff company. At the hearing of the case, which occupied three days. Mr. Ostler, with him Mr. Carruth. appeared for the plaintiff company, an I Mr. Richmond and Mr. Houston for the defendant company