MAGISTRATES' COURTS.

Press, Volume XXIII, Issue 3058, 10 June 1875, Page 3

MAGISTRATES' COURTS.

CHRISTCHURCH. Wednesday, June 9. [Before G. L. Mellish, Esq, R.M.] .Drunkenness. —The following inebriates were dealt with :—David Wilburn fined ss, and ordered to pay Is van hire; Archibald Kndwles fined 10s; Patrick Aherne fined 10s. Committing a Nuisance in a Railway Carriage.-—James Findlay was charged with committing a nuisance in a railway carriage at Kaiapoi by vomiting therein whilst in a state of drunkenness. The' defendant was fined 10s. Lvdecency.—John "Johnston was charged with indecency in the public street whilst under the influence of drink. His Worship fined defendant 40s. Illegally on Premises.—Ellen Jones was charged with being illegally on premises. The defendant was found sleeping in a storeTroom at the Warwick Hotel. Sergeant Wilson said that he knew defen r dant had. no place to go to, and no person would take her in since she came out of gaoL The defendant said that she was going awaytO'day to a situation at Dunsandel. His Worship said that he would give the defendant a chance, and discharge her; but he would advise her not to appear again, or she would be severely dealt with. CrviL Cases.—McHroy v Cruize—ln this action William John Mcllroy and Thomas Alexander Mcllroy, trustees under the will of John Mcllroy, were the plaintiffs, and Dedrick Cruize was the defendant. Mr Joynt for plaintiffs, Mr Wynn Williams for defendant. Plaintiffs sued the defendant for the sum of £15, being damage caused to plaintiffs 1 land by defendant wrongfully stopping up and diverting a watercourse running through defendant's land, and thereby damaging the potato crops, and flooding the land of the plaintiffs. The plaintiffs are the owners of a section of land on the North road at Papanui, and the defendant owns an adjoining section. Plaintiffs' alleged that defendant had dammed up a stream which crossed the road and ran alongside his property, thereby causing the water to overflow on to plaintiffs' land, and damaging the crops and land. One of the plaintiffs' was examined in support of plaintiffs' claim, and stated that he estimated the damage done at J615. On Saturday last the rain storm washed away the dam that had been erected by defendant, and the water returning to its old channel had ceased to overflow the plaintiffs' land. T. H. Haskins, surveyor to the Avon Road Board, produced a plan of the locus in quo, and stated that he had known the spot for the last twenty years. He did not know that there was a made drain running throngb defendant's land, it was an old natural watercourse which had been cleaned out and deepened from time to time. On Saturday last the dam erected by defendant gave way, aud the water took to its old bed. On crossexamination, the witness said that there were made-drains, conveying artesian and other water from Papanui into the natural watercourse. If the natural watercourse had not been deepened the water would still have flowed as it does now. There had ; been a culvert made, and the course of the main drain had been diverted. Re-examined— Witness believed that the water flowed alongside defendant's land, not over it. Mr Wynn Williams submitted that the Court had no jurisdiction. In this case there was a question of title to hereditament, an incorporeal right involved, and where that was the case he would submit on the authority of the case of Fisher v the EHesmere Road Board — decided by Mr Justice Gresson—that the Conrt had no jurisdiction. The drain was ' not a natural watercourse, but a made drain, { and defendant disputed the right to send the water through his land, and had stopped up the drain in the exercise of his right. Mr Joynt said that there was no point in common between the two cases, except that there was water in both. In this case the water was not brought on to defendant's land, but flowed in its own natural channelIn order to establish his right to an incorporeal hereditament, defendant must prove that there was a right to an easement in dispute; this had not been done. The land which lay lowest had the right to take the water which flowed naturally on to It from the dominant land. In the case of Fisher v the EHesmere Road Board, the water waa collected by the defendants, and conducted on to Fisher's land. Mr Wynn Williams replied, contending that the present was on all fours with Fisher's case. There wf>s a made drain which defendant had clreed, because he had a right to close it, and tie'question of title to an incorporeal hereditament being involved, tbe*Court bad no jurisdiction, Mr Hellish mi that by the

plan produced it was perfectly clear that a dram had been cut. Haskins' evidence did not tally with his plan, because the plan clearly showed that the water entered defendant's land a chain farther off tban it did formerly. The case would be dismissed for want of jurisdiction.