CIVIL SITTINGS.

Dominion, Volume 2, Issue 488, 22 April 1909, Page 9

CIVIL SITTINGS.

PROPOSED TRAMWAY AT MIRAMAR. ■ '.Judgment . was delivered by Mr. Justice Denniston yesterday with respect to -ait originating summons served by the Miramar Borough Council on the Minister tor Public. Works, the Attorney-General, ■ and tho Wei-, lington Harbour' Board. ;-/;// Tin's was a.summons'.undcr the-Declaratory Judgments Act, IUUB, to determine— /'■;// .(1)' Whether - tho .Miramar Borough, in makingr-tramways as provided for under an agreement entered' into , between. -it. and - tho Wellington Harbour - Board, and set out in tho /tenth schedule of the Wellington Harbour Board Empowering Act (No. .40), 1908, is required 'to comply with tho terms: of tho. Tramways Act, 1908, and . ■ - ;_ (2) If tho first' question be answered in the affirmative, whether tho • Miramar Bor-; 6ugh/has,.theright to give-a lease'or license to Use such /tramways when mado.for a term of !i"> years. //' : . •/ His Honour held that the first question must he answered by '.'a' declaration that the ■Mii'amar - Borough * Council .was not , anthorised; ;to-laydown or construct the proposed tramway, without complying with or being-, subject to The Tramways /Act, 1008, or the' regulations, made thereunder. As the necessity'. for an ' answer* to /t-he.\' second . question ,va's contingent upon' an affirmative answer la the ' first question, no answer to , it was therefore necessary. . Costs,; 1 lp y.guineas, would bo allowed against the Miramar Borough Council.. • ■ Mr- Devine,; with IninMr. Dean, appeared insupport of the summons;: Mr. Weston for ithe Wellington Harbour Board; and Mr. Bell, ILC., for the : Attorney-General and Minister for Public Works. ( - BUSH I 1 IRE AT DANNEVIRKE QUESTION" OF LI VBILITY //Liabili ty .-for/damage' done by a' ;,bush fire in,the Danncvirke district' was -the question at':issuo in ihp case between Herbert Pryce, , of Ilalcotnbc, and Alex. M'Keiuiie,! his manager'(appellants), .and Hugh Gilbert' Small, r of sffebor'(respondent);:; in .regard;to• judgment' was 'giyen by Mr. Justice Denniston yesterday. ; ■' ' ' i -. . ■ ; :, Thevfacts in this/ease: j disoloscd 'that the parties/occupy; ad joining': properties- iu the Dannovirke district;/ LasL January _ a ' fire started, on property' oil the other side of, but ' adjoining, Pryce's • noMing. In order to -save - himself from beingburned out, 'Prycoj by ms < manager, one -M'Kenzie, sot firo to a Apiece ;ofticwly.-fellcd bu3lv/on/ his .own -property. ; 'At tho iitime .the .wind. was, blowing from -Small's. to Prycp's■ land.; Two days filter a' galo blew from the opposite direction,".-and as -a -result tho. fim:traversed. Pryce's. holding,• and entered ..Small's..pro-' perty/'burning. his pasture,'.- ruining-; fences, and> destroying 60 to 70 sheep. Small brought an action against. Pryce-for; damages. - 'Mr.Jaki'S.lSiM.'i . foxind;that the' -fire'which /occasioned /.tho. damage :to Small's property -'was that which had; been lit by Pryce's uianager./;He therefore gave judgment, for. Small for £100 damages. Froni the/ judgment. Pryce and hi.",, manager had appealed: ' - . ' - ■ His Honour held'-that the onus was on Small to give satisfactory ;■evidehce that : the fire lit on: Pryce's land, caused or contributed to tlie injury, dono to his property. . It was the opinion (if the Court'-that lie hiul fciled to do so." :There was.no necessity, therefore, .to/discuss /propositions; :as v.to , the/ liability ' in the case - of separate fires . combining and doing injury.' In such eases the 'authors of each fire //were / not properly termed/ '.'tortrfeasors,'-' - although '/each --might' in'the eveiit/ of/the separate effect'of ; each ;bo,-liable, for '"the. whole, 'damage.;-;; •uncontradicted 'evidence .that the lighting/of the .fire ./on/Prycp'.s .property,'.wis ~{a';pse,i a iid! ■p^ope^;pr^a■UJH6h^';■'in^-■.thS""Viriferesti^' s bf ? -:'K6^:li' , iiiarties' r to;'nieet;-/tlio .fire/that-hadbroken/ ; l out<in"^tho''rvicinifcy.-:: : 'It-/*'W'as^/shp-wn".tha ; t--'-ifc : . -did,; in'ifact'j minimise the /danger;'toV Small's property/'iby/presenting;-a: /burnt-put /region ■original ' lire. .- Tlibi appeal ./would/ b6 .allowed, .with':'lo - 1 'and judgment' - would - be ordered; ti bo -entered in the. Lower • Court for . I'ryce, with costs of that Court. . v:. /i-.:,; ,v. ■■ Mr/ 'Skorrett,;; IC.C.. (with lum Mr. OstlerV, 1 appeared on behalt -of Pryco, and Mr. Wilford for Small. . / ■ ■; '' / COTJRTENAY PLa.CE COLLISION. STATE WAGON NOT A "PUBLIC WORK " !'./ ; Important':.questions' of. law stated prior to i tho trial; pf the a"6tfqrt,* Frank Barton v. the /JSLing,/ ■iVere' coftsidcrcd . by; : Mr.;;' Justice Denniston '/in/-a'judgment//which hedelivered, yesterday. • i . ■ '//■//■"-.:///;■•■:■/' /'■'.;, " ; liy , petition the ; suppliant :had set foith that ir. March,/. 1908, he was in' the employ; of ..'theCity -Corporation jis a motorman. -i On / the. 28th day of that ' month' ; was... the.: 'driver; of; : an electric car. which was. proceedving/froin'lsland ,Bay ; to /the Government station. When opposite the intersection of : Courtcnay ..Place with Tory Street a steam wagon used for the delivery of /coal/ froiii■'■ negligently /driyen ; that/tl:e car -violently_ collided - with it;' /: By / ;reason ;" of the - tlie front i'oft tlip. car . was- smashed and driven against ;thb- body 'of/ the. car,'. and. he sustained ser-'i ■ipus/injuries consisting ;of a,badly'fractured' pelvis and .nervous • shock.: His health; has; becom'o'lpermanently,: att'ected., .and he would bp seriously '-^hampered-/throughout;.'..!; in eaniing/a :living/'for himself, 'and- would•/ al-. ; . ways be liable to suffer pain. and 'discomfort. - He'w'as ; still -incapacitated fronv following his calling /of a./niotormanj and from doing-, work of any kind. to. support-himself.; The business of coal-mining carried -on /by- the State -Vhe; sale, supplyj; and delivery of coal in cpn-ncctibn-..ther'owitli,.': and . the steam 'wagons, used tn: deliver the coal were each respectively a public work within the meaning of tlie Crown Suits Act, - :1881, and. the. Crown Suits Act, x I9OB. ;/Suppliant estimated the,' damages - which' / lie had sustained - at.; £1500. His: Honour sjid tho facts so far as they 'appeared ' tho: .petition/:were 7 .simple.;lt ;'\vas: provided 1 in ' /the Crown Suits; ' Act ;. as ■ follows :V'N6. claim or demand sliall;be made . upon or ..against/ His' Majesty, except- in .re--•spcet of a wrong or damage independent of contract done or suffered 'iI;/;;. . in, upon, or in connectioniwith/a publio work, meaning thereby ;any;railway, tramway,/road,/"bridgej; : oleotric .telegraphs,..or otherwork'of a like, nature used-by the ■Government ot New Ze.v. : land, or constructed by. such;'.Governnient out of moneys appropriated by Parliament, and , /the rove'nue .thereof formed; part /of- the gen- , orar revenue." . For the ; suppliant ; it had. been' contended 'that. the., steam,lorry/.was. it--self a - work '.'used by the Government of a like nature to a' or tramway, and therefore camo within the scction.' That seemed then, and still seemed to liini, quite unarguable. The "work".; was/ to be «. "ptiblio work"—words which, under no circumstances, could be held ;to •. cover. and, include ;the;.il)dividual accessories to' tlio main work, although; such , had,/as/ a.'lr.-atlxjr,of conyeni-; ehce, been. in some instances included ,in the /definition,";pf the' main work. -The suppliant ;.c6uld . bring himself within the section only, by showing that a State coal mino was a . public/,wPrk. of; a like nature to a railway,. ,tramway,'roadj bridge,: or electric';telegraph;; '.That,it- was a public, work was, admitted. To , -ascertain ;if-it wos of a like nature to tho :;piiblje/works; mentioned one:must look for an. element / common ,td them all. It. had ;beon; -held by the Court of. Appeal ;in AYilliams v. the Queen that a wharf-'o.wned'hy the Gov-, ernment .was.a public work within the mean-ing/-.of.the statute,; although there was; nothing, ibut-'the mention bf staiths 'to- show ,any connection/with a railway. "Tlie/use of tho, 'wharf,"-.said Mr.' Justice Johnston, "is not only for mooring - vessels, but; for . means' of communication between; the vessels, and the ; shore.-; It is also similar in construction to •a.--'bridge:" ;Then, again, Mr. Justice Williams had;observed:. "I think also a/ bridge is like a road, a/tramway,, etc. They arc for a similar .purpose,' .that of. facilitating communication.": Mr. Justice had felt himself bound by the'decision just quoted -to hold that a wharf simpliciter was a public work within the statute. . One must assume; continued his Honour, from tho language of the Judges in Williams v. the' Queeii; that they either held the. wharf ; to have been connected'with a railway or to be of the nature of a bridge or road as something over or. along which persons and goods oassed. In tho case of an electric telcio'aph,

though that connection was not so obvious, yet it was a medium of communication. Ho .thought also that one must give some weight to tho words "used and constructed." That, ho thought,' meant constructed or used when constructed. All the public works mentioned as illustrations .were originally capable .of construction. One could not.be said to "construct" a coal mine, though one might incidentally construct roads, tramways, and railways in connection with it. ■ It wasquito possible that tho governing idea of the provision might, as suggested by counsel for suppliant, have been intended to bring within the section all undertakings in which the Government became. employers of persons .\ engaged in : actual manual labour, as distinguished from public Departments in which tho.labour was mainly clerical. If so, he. was; afraid tliat there had been a failure to give effect to the intention. / The questions' submitted to the Court must be answered as follow: — , (1) Did the; petition disclose any cause of action or any valid claim or demand under the Crown Suits Act, 1908?— Answer: No. ■ (2)* Was the damage alleged to have been suffered.by the suppliant a damage suffered in, upon, or in connection with a public work as defined in Section 35 of tho Crown Suits'/Act, IDoS?—Answer: No. .' By consent, tho argument had been treated as the trial of the action. Judgment for defendant, with costs of argument, according to;scale, and disbursements'. -. ■ , When' argument was' heard, Mr. Levi appeared on behalf .of. .petitioner and Mr. Bell, '■K.G.,-'for the Crown.. '.