CHRISTCHURCH

Press, Volume III, Issue 283, 26 September 1863, Page 2

CHRISTCHURCH

SUPREME COURT.

CIVIL SITTIXG3. Thursday, September 24. [Before Mr. JrsTiCE Geesson and a Special Jury.] AECHKB V. WILSON. Mr. Cowlishaw and Mr. Williams appeared for the plaintiff, Mr. Travers for the defendant. This was an action to recover damages laid at £500 for injury-done to the lands of the plaintiff on the lower Lincoln Road by the raising of the waters of the river Ileathcote by a mill dam erected and maintained by the defendant. Mr. Williams having stated the particulars of the action, Mr. Cowlishaw opened the case for the plaintiff. The jury would have to find four facts : 1. Was the land in the possession of the plaintiff? 2. Was the dam erected and maintained by the defendant ? 3. Did the plaintiff give the defendant leave and license to erect the clam ? 4. Does that | license cover the trespass for all the time the trespass has been continued by the defendant, or has the plaintiff ever revoked that license ?

The facts of tho case as detailed by the learnec gentleman were as follows: Tho plaintiff was owner of a section of land on tho Lincoln Eoac near the Heathcote River. A Mr. Ashby buijfc £ mill, and obtained leave from plaintiff to dam th< river to a certain height. He dammed it highei than was agreed on. If this were proved plaintiff was entitled to a verdict. No verbal release of the liability of plaintiff would bo sufficient, the defendant must prove a deed undei seal. Plaintiff had spoken to Ashby, and he had agreed that so long as the water kept off his lancl ho would not pull down the dam, plaintiff would have the right of action whenever water flowed on his land. The water was subsequently referred to arbitrators who assessed damages to plaintiff, and Ashby agreed to pay a sum annually to plaintiff in compensation. Shortly after Ashby got into difficulties, and the mill was sold to the defendant. The assignment by Ashby was a revocation of tho license, and defendant was a trespasser until he got a new permission, and tho plaintiff was entitled to damages for the time between the assignment and the commencement of this action. Even if he got trilling damages he was at all events entitled to a verdict. It would bo shown that defendant was aware that Ashby was liable to damages at the rate of £8 a-year. Defendant had promised to build a bank on plaintiff's land to keep the water from flowing on it, but had not done so, and in 18G3 plaintiff had told defendant that he would hold him responsible for the damage done and would pull down the darn. If he established these facts, his Honor would instruct the jury that plaintiff was entitled to a verdict. William Walker Archer: I was in possession of sections 121 and 123 in tho Lincoln district in tho year 185 G. I remember Edward Ashby in tliat year erecting a dam in the River Heathcote about half a chain below the Heathcote Bridge on tho Lincoln Road. Mr. Travcrs objected to any evidence shewing what arrangement existed between the plaintiff and Ashby. The defendant is charged with erecting and maintaining a dam. If a tliird party erected the dam we have nothing to do with that. Mr. Cowliahaw urged that the defendant entered upon Ashby's property, and held under him. Mr. Travers replied there was nothing in tho record setting forth that the defendant was charged with making and maintaining the dam himself. The Judge thought the evidence was inadmissable. Archer: I remember a conversation with the defendant in December, 1860. Defendant said he had bought Ashby's Mill. It was sold a day or two before by auction. He said he bought it because he thought it was quite time there should be one honest miller in 'the place. I asked if anything had been said at the |aje about the damage that Ashby was liable for to mc. He said there was nothing said at the sale, but lie was aware of it before he went to the sale. He said he was aware there had been a great fuss about this water, but now he had got the mill he was determined to drain my land and also my neighbors'. I asked him to ride over my land and I would shew him what I wanted to have done. He went with mc and told mc everything should be done that. I required. He then said " Well, Archer, rather than have any dispute with you I will leave you to superintend *U these works, and to do them to your own satisfaction." I said if he would- do what I had asked him, that is to make a ditch and bank alongside of the river on my land, and a culvert to carry the drainage of my land under the Lincoln Road below the dam, I would release him from any responsibility as to damage. Those were the conditions on which I allowed the defendant to continue the mill dam erected by Ashby. These works have not been done to this day. He was also to clear the river for about 80 chains; that was done last February. He requested mc afterwards to draw out plans aud specifications for clearing out the mile race. I did so. • The work was carried out by contractors. He asked mc to find out the cost of making the ditch and bank, and cleaning out the river above the dam. I said the expense would not exceed £30 to £35. He said he would consider it over, and have it done. A day or two after he overtook mc on the road ; he took a paper out of his pocket, and said, " ijcre, Archer, is something I want you to sign." I looked at it, and found it was to release him from all responsibility as to damage from the water. I said, I was surprised he should ask mc to sign such a document before he had done what he promised; I would sign it after he had done so, but not before. I have often asked him when he was going to complete his agreement, but could never get any time fixed. In December, 1861, twelve months afterwards, he completed part of liis contract by putting a culvert under the Lincoln-road. I remember receiving from defendant the letter now put in my hands. [Letter put in and read. It stated that the defendant was about to make the bank on plaintiff's land.] I amwercd that letter. This is a copy. [Copy put in and read, stating that plaintiff would protect his own interests.] I remember n conversation with, do* fondant in February, I down to the bridge and saw defendant, He asked mc what I wished him to do. I said "ho had done more than £100 worth of damage, and I wished him to settle it,. I said, " I wish you to understand distinctly, Mr. Wilson, that I shall remove that dam." He called his son, and said, " You hear what Archer says ; he says he'll remove the Aim." He called the men round to take notice of it. The land was under cultivation, and as dry as. tb,U fiftQ? before the dam was erected in 1815.6. I had taken two crops, off it, and laid it down in English gross. About 5£ acres in the home paddock ia spoiled ; it is nothing but rushes, now, owing to tho water raised by the mill dam. I had 60 or 70 bushels to the acre of oata, in 1856. In 1860, at the time of the defendant's first conversation, four acres vsjee laid down in grass, and the remainder, about eight acres, was as good a pasture as if laid down. There has been two feet oi water on the 5 j acres for tyro years, until last February. They include the four acres laid down with English grass. The cost of sowing with grass would be from 30s. to 40s. an acre. The land is worth from £4 to £5 an acre annually. [Witness marked the part igr

jured on tho plan] There is another 4 J acres damaged further up the river. The dam is 14 inches above the original bank of the river. Cross-examined by Mr. Travors: I understood Mr. Wilsoa when ho said he know of Ashby's liability to mc for damage, to refer to an award that had been given to damage done mo by Ashby. It was drawn out in my hon:?e. The document now shown mc is either tho original or a copy of that award, £ Award put in and admitted.] My home paddock extends to the edge of the river. There was a small bank made along tho edge of the river from the pieco marked B in the plan to the road. It was made by Ashby. It might have been a foot or 18 inches high when first made. Inside that there was a small drain alongside the bank. I put watercresses in the Heathcote some years ago. I sometimes run cattle in the home paddock. They have free access to the bank referred to. When first made the bank prevented the water flowing on my land. It was made to prevent tho water getting on my land, and answered the purpose. The new bridge on the Lincoln Road was put up about December, 1861. The old bridge was sometimes eubmergod in water in a fresh. Sometimes the water was flush with it. When I specified certain works to be done by defendant I spoke of a culvert across the road. The culvert would have been of use before the new bridge was put up. The culvert could have been put in at any time. It would not have stood above tho road. Tho road has been raised about 18 inches. The culvert was put in while the road was being raised. I was not not asked to superintend its being put in. The document now shewn to mc is in my h;uid\vritiug. [Paper put in and read. It was a specification for clearing the mill dam, and a contract to do the work for £60.] Re-examined: The works mentioned in the specification are part of the works referred to in my former evidence. The mill race at that time was in such a state that it must have been cleaned out before any other work could be done. Tho bank spoken of did not prevent the water flowing into my land all the time. It did so as long aa the river was kept cleaned out. By the Jury : The total quantity of land submerged i 9 nearly 10 aores. Richard Turnbull sworn : I am a farmer in the Lincoln district. I know the dam on the Heathcote near Archer's land. I Archer's land before the dam was erected. There was no water on the laud before the dam was erected. It is very good land indeed. A great deal was cultivated aui liiid down to gross before tho dam was erected. It would cost £6 an acre allowing for loss of time to lay land down in grass. Good land would produce about one and a half tons of hay per acre. It would cost over £10 an acre to get the plaintiff's hind into the state in which it was when it was first laid down, including the time it would have to lie idle, not including the loss of crops in the meantime. Hay is now fetching £8 a ton, other years it ha 9 been £3 or £1. Mr. Wilson called a meeting at Mr. Murray's house about April, 1162. Two Mr. Wilkinsons, Mr. H. Brown, Mr. Moore, Mr. Murray, and myself were present. Mr. Wilson eaid he would have to shut the mill up if he could not obtain a better supply of water. Ho wished to sco a man named Griffiths, to see what objection he had to raising the dam. We undertook to meet Griffiths. I spoke to Griffiths about raising the dam. Griffith objected to allow the dam to be raised. His landlord would not sanction it. We furnished defendant with a report. We inspected the river and found there was no necessity for raising the dam. The dam is from 1G to 18 inches above the former level of the river. It is about five inches above tho level of Archer's land next the river. The river was cleared out several timee by Ashby. It was overgrown with cress from the bridge to Archer's land. Cress will grow much faster in stagnant than in running water, especially where the river is thrown over its banks. John Griffiths sworn r I am a blacksmith. I live by the Heathcote bridge on the Lincoln road. I know the mill dam. I have often seen the defendant there. He lately put 3x 4> eoantling across it, about 18 months ago; it raised the ■water four inches. Crossexamined by Mr. Travers. I pulled the scantling away. It was while Mr. Wilson had the mill. It was Mr. Wilson's man put it there. It remained only a few hours. Richard Brunsden: I am a cornfactor and valuer. I know plaintiff's land ; I have known it for ten years. I have experience in the value of land. I have seen Archer's land when there was a crop of oats on the part near the river. I was called on by the plaintiff in June to value the damage done to it by the overflow of the river. It was deteriorated in value. It was laid down with clover, now it is only rushes and moss If it were dry it would be worth a rental of £4 an acre a year. It was worth nothing in June last. Cross-examinod by Mr. Travers: The oats, as far aa I remember, -wont to the water's edge. This was tho plaintiff's case. Mr. Travers, in opening the case for the defendant, said he had been somewhat taken by surprise at the rapid termination of the plaintiff's case; he was not prepared by the pleading for such a result. He would call some witnesses for the defence, who would prove that the defendant had done all that had been required of him to satisfy the conditions under which he wa3 allowed to maintain the dam. .

John Cracroft Wilson, the defendant, sworn: I remember a contract with Lewie and Long, made by the plaintiff for mc in consequence of several conversations. One before I purchased the mill—others after, The works were undertaken to take off the water from the land of the neighbors and remove all irritability connected with the water. I empowered the plaintiff to make a specification which would satisfy him in every particular. That was afte? I b,ad; purchased the mill. I caused a culvert to, be put into tho Lincoln Road,, west of the bridge, solely to drain the surface water off plaintiff's land, at hie request. I paid for it. I produce the receipt for the work done by Lewie and Long, according to specification. I refused to pay until the plaintiff had given an acknowledgment that the work had been done to hia satisfaction. I paid £11 tq the Government contractor who;put up th,e bridge, and who put up the culvert, £qp the workmanship and nails. I paid Tombs £13 17s. 6cL for the timber. When I baught the mill the mill-jrace was four o* five feet an the narrowest place, and, I think,-feinc or ten feet at the widest. The plaintiff required that the race was to bo a uniform breadth of 12 feet at bottom, and the bank should slope outwarda. _ It was to be a uniform depth, and all obstructions removed. He required this to take all the water off hia land. I did that work according tp hja specification. I afterward? emnloyed Martin and others to redeepen the mffl race. That was done and cost £90. On 2nd February, 1863,1 was at the bridge with a gang of 14 persons in all. I saw the plaintiff there. I said I had come withalajfge gang of men to do everything in reasoa wltfoU he wanted done in reference to the water and mill race. I asked to be allowed to. go on his ground to clean cut the river and, cut down tho flax and the tree paas, which is vulgarly known by the name of Maori head. A small bank had been made by my predecessor with a small drain, and it had been trodden down, whether by the. hand of man or the feet of oien I can't say. He re« fused to allow mc to go on lib land to repair it. I was obliged- to clean out the river from the Christchurch side. A.% a spot eleven chains from the bridge there was an oponiqg from "the river through the bank into tho small drain [The witness marked the opening on the planj. One effect of this opening was to deprive the mill x&oe of so much water. Another was to damp the bud through which the drain *en. The water was then so low it did not flow through that what opening. The plaintiff threatened mc and used what I humbly call insolent language, and said we bad caused him hundreds of pounds damage and I

.■houl I not go on hie land till I had paid him Ho «lso eaid ho would cut clown the dam. It would not have cost a pound to repair that part :ot the bank which protects tho plaintiff. When thn nice waa first cleaned, I asked him to get a contract for repairing iho bank, and he said he J would clear the river and the bank and drain for i £30. I thought it exorbitant and did not agree to pay it. Then tho meeting of neighbors took place and when I found I was not allowed to raise the water, I dug tho race out the second time, which so lowered the water that plaintiff's land was dry I have constantly seen the plaintiff's land. There is positive evidence on the ground that it is now lower than it was in a state of nature. The river is seven feet wide, and six inches deep below the * dam. The plaintiff cleaned out the cress in March to let the water escape by the culvert. Before that, the cress kept back the water below the dam to a level with the dam itself. Tho water then flowed back into the plaintiff's land. Cross-examined by Mr. Cowlishaw > I have - said to the best of my recollection that the plain- [ tiff offered to clean out the cress and do tho bank I for £30. I did not accept it. I said at first I would mend the bank. Plaintiff never made a condition that the dam might remain if I repaired the bank. I think it first came from the plaintiff " to repair the bank. He did not give mc to understand tliat I must keep the bank in repair. He expressed a wish to that effect. After paying £190 to sooth the feelings of plaintiff, I waa not likely to refuse an additional pound, for that object. The dam assuredly stops some water. I said the wafer is lower than it was in a state of nature. I still say so. Below tho dam the width and depth of the natural channel of the river ia seven feet andsix inches. Themoutkof the miUrece is 18 feet wide and ono foot deep. Consequently the area is aslßto3} in favor of tho mill race. The - latter is free from weeds, tho river is not, therefore the water is much higher than in a state of nature. - The culvert is one foot three inches lower than the dam, and if the -water is raised the whole of it would escape by the culvert and nono go into the mill race. If the dam were taken away the water - might bo lowered if the cresa did not grow. If the cress grew it would not. I have seen a small extent of plaintiff's land covered with water. I did not measure it. There might have bien under half an acre in 16 chains by the river bank. The plaintiff made other engagements not included in the specification mentioned. From the time ofthe plaintiff offering to repair the bank for £30 till March 1863, I took no steps to mend the bank." There was no occasion after lowering the race. I had hundreds of conversations with the plaintiff in the meantime. On one occasion I remember our agreeing that it was no use to put in the culvert till the road waa raised and new bridge built. The plaintiff never said I must repair the back. Plaintiff never used the word "must" to mc till 2nd February. I always considered "that tho bank should be repaired by mc. And as to putting in the culvert, 1 would, have done it, but when I was compelled to deepen the culvert at tho cost of £100 and the water waa all off hie land, I was not to be called pn again to do it. But I did offer on the 2nd February to do it, and he would not let mc go on his land at aIL Re-examined by Mr. Travcra: When I saw the water on plaintiff's land tho old bridge was an obstruction to the river. It helped with other things to throw tho water on the land. I liave seen the water on the old bridge after the race was deepened. By the Court: The plaintiff amongst others, asked mc to become the purchaser of the mill. . By the Jury : Part of the hind would have bectt under water if the dam had norer been built. Ho works undertaken in consequence of the dam have rendered the flow of the water more free. Cyrus Davie sworn: lam a Government Surveyor. I made the original survey of plaintiffs land. I have the.origuial plan here. It WM made in 1861. The land was in a state of nature. I have repeatedly seen tho laa'd'emw,"" and once ' particularly about last June or July, t> l» T e no doubt I saw it often in* 1856. I observed the '"- course of th>riTef-ooA,Jbhp naill jawr "Tht> huid *•• for 16 or 18 chains from the road ■β-as drier Jasjt June than when I caw it twelve or thirteen yeare r ago. . We used then to cross the river on a totara log, about 10 chains above the 'present bridge. You then could not get to the log without wetting your feet; now it is all dry. I' don't think the dam affected the land in the least. I saw th,e culvert leading from tho small drain on land to below the. dam. The culvert tt below the level of the dam. A little-water was (lowing through, the culvert. I think plaintuTi land is drained by the culvert. r I observed the How of the river from section 123 to the low part near the bridge; The stream flbW Swiftly. The Jam had no effect whatever on the water at section Part of that section and the upper part of L2l is low. I saw some water on it in places * - iot an acre was under water. ; 4"bat water wae wrtaiuly not due to the dam. The rivor there i»vell cleared on the opposite side to plaintiff *c land. '.t did not appear to hare been, cleared on plainiff's eide. , , Conclusion of the trial will be given in our next.]

BTTEOICAI. OFT^ATIOX. Wo undei-etand that an" operation of a fornidable character lias been successfully-performed ' this week by Dr. Turnbull. It eecme that a man lamed Wright has been suffering from a tumour >n the left jaw for several months. The only diance of saving him from a speedy and miserable leath rested in the entire removal of ono side of t ;lie upper jaw. This operation embraced one half 5 he face from the nose to the ears, from the lower t nargin of the eye to the mouth, and' from the oetfi in front to the gullet, removing the roof of _ - \ ■he mouth and palate. Wright is going on jhvorably. \