LAW REPORTS.

Dominion, Volume 4, Issue 940, 6 October 1910, Page 7

LAW REPORTS.

——: — COURT OF APPEAL. . A MILL-DAM.' '.'/-'-'v/d •> ORDERED TO BE REMOVED. THE MILLER'S APPEAL. I •The Waiwetu Stream case, which con•corns a mill-dam and its effect oil;land further .'up-stream, came, before the Court 'of. Appeal: yesterday. Their Honours Justices Williams, Edwards,'- Cooper, and {Chapman were on tho bench. , ■ ; .Tho original -action iiu tho SupremeCourt was brought by Karl Rasmussen,' farmer,- of Waiwetu, who claimed .£250 damages fronv, Edith Dorothy- Ellis and John Eli, Ellis',, flock manufacturers, and, asked for an injunction ordering the, removal of .the. dam. ' After hearing iiHichovidence, . the Chief Justice . stated. his conclusions as ■to the -facts and suggested a compromise, .but' this was not., acceptod by the parties, as , landowners . .above the plaintiff- s land: would. not ■to • any arrangement. % Before .. giving ,- judgment, his Honout". visited .■ the- land, and-- from, the evidence adduced-,at, the. hearing and his own inspection, ho' assessed the-dam- • ago-'.to' plaintiff's; property at; £2i . and, gave .judgment accordingly. He also found that lie could not lawfully refuse to.grant the. injunction, " '.though V he.^considered that, 1 considering the smallness of 'the actual damage,- and•:the ;injury, .it; would, be' to ■ t.ho\.defendant to' remove j his dam,, the action of -the .plaintiff and, tho,'own:ers above - was' unneighbourly. J .Judgment, \therefore,' was for the. piaintiff :'for 405. ; damages,, and; for ' an, ~ '. , - '■ The- defendants appealed :* against the .wholo' jiidgmont, anil, submitted in their notice of motion, that it was necessary for the respondent "to prove ,substantial; damage, but',that- even, if' this '{was-: not necessary,' a,-.number of spbeial circumstances amounted. to acquiescence, on, the, part 'of"the respondent, and ; estopped : : him, from • claiming' an injiiiction.. Among, these special .cirqumstances, it was. alleged that the; 'respoa'l3it .' had. - „delaj ed -.his action.,for;! nearly .twelve years, Hhat. in 'his" dealings'- with the appellants he - had - treated: the'.question ,of the mill-dam''as one :bf.' damages - only', and that as., a result of ..this-'.attitude the, appellants had spent',money' on: their • premises, -erected a newv.swater-wheol at;.a ;cost',of and^'continued to . develop their ,business.' It; was . further: .submitted.'that tho injunction had been granted on evidence' that, wus* only applicable ,to a claim for a preventiveinjunction,' ind ; . that-, the Court ..had." ignored evidence against..;'a claim, for-a mandatory injunction ■, to.: re-': move a completed work. An /alternative ground of appeal was that the respond-, ent's: action .was" barred by ;■ the; Statute of Limitations, there having , been I a ';de-. •finite; act on the pa)rt : 'of ?,Samuel - Smart' 'Mason,; the .former owner;, of the flockmill -property;;.who' erected ;thef; dam and 'caused the.-, alleged' damaKe, - which i was isuffered, .once ' and ' for,, ail. . Finally, it 'was-- submitted'; that, the: respondent "was lehtitled'-only;to 'his remedy, at. 'law for damages. : v: : !'■; ,; :. Mr. C. B. Alorison appeared for the appellants, and Sir. W. l'\ Ward. for. the' respondent. ,' ; ''

Mr.;; llorisonivhad -.'nbt; completed' his argument- ivhe'n -the; Court/, adjournedl'until.'lo.3o;'this morning.

MASISTRATE'S COURT.

(Befoie Mr. W. G. Hidclell, S.M.)

ALLEGED' ASSAULT,

j Josoph Beasley. was charged that on September 27.' at Wellington, ■ he did assaillt,' one 'Eobert' iAgneW. il'Callum, so ras 'to cause him actual-: bodily, harm. Sub-Inspector Norwood prosecuted, J arid. Mr. A'. Meredith appeared for accused. I '■ Edmund'.George Browni,.'of,,the,, medical, staff,. Wellington Hospital,: state'di.that.oii'i -28 Eobert', Agnew .'MlCdllam; was received at. the hospital'suffering.froni; wounds on tho left side of • the; head. r.' ; ;A' iwound" on' the ' left; temple : was over ' ati . inch,-. long,. ...and , contained : six ' stitches,, •.there wgre. several , other: -;less,,.serip!is, ■nvounds.'j ,*''rii'e ; patient had been -attended to' I)r.' Young before' lie. entered, tho. hospital!, The wound, on the temple mighti have!been..caused;by. a .kick,.-b"uV t ivas\more; fall .on the J ground' or " : against: a' cement wall. ,- M-'Callum. would , no !doubt be' discharged from the hospital in. a day, or, two now, but would require . 1 attention-'ifpr,. about .ten days, yet. ~ No ,serious! results were, anticipated.', ; :Cross:examined by:'Mr; .Meredith,, -witness did not! : .think the wounds coiild - have been-caused by: a fall against, the; weather-! board wall.oi a'house. , . . . -

Robert. Agnes residing aty-12/. Holland ".Street,- stated; that ;on. September . 27,- at 6 . p.m;, / he.,.went' 'to 20 Holland Street. His /wife had gone: there before him; to ask for the ;returii of a:.bowl that belonged' to.'lierl" Accused lived idt the house.' ~ When : witness /' arrived- there lieyfouhd; his - wife and .' Mrs; Beasley/engaged in an argument. 7 Witness . Was .endeavouring ..to'- get his:" wife aWay '-'wlien steps ■ were heard-, behind 'him, and' suddenly lie' received'a blow ;'on tho side .of the.- head; , - As.',he'. fell lie struck' the ;Sido /of the house. Ly He afcj tempted'; to .- risei and • received'' another ;severe ..blow.; - : Accused was the. billy, man -near witness ' at . the . time. . .Witness'had' given accused ,no provocation for Hhe 'as-, isauH.y y-y'y.:y: 'y'Jy ; -' : '. : ':y'"' ;: ; •

Evidence,' was .also* given-'by' Elizabeth M'Callum; ■ ivho' st'atcd that .it'was accused' who liad struck her husbandj /;: and by ; Constable.'. Granty 'was : called to 'M'Callum's lioiise on': .the'.evening ;i)f. -the' affair; " :''• ■■■-i -''v...;;. . y: y: ■ : ;' ■ Accused pleaded'not.'guilty,' aiid Committed '.to-- the Supremo.' :Court'. ' trial.: Bail was allowed in,-;jC80, and . two. sureties oi' JSUO each. ;yy; V: ' y^'yy DEPLETION OF A DOVECOTE. . John Cicel, appearing on remand, was; charged. .that:' on -of. about '.September..; 27 at 'Wellington,. he , did steal, twenty-live homing, 'pigeons, value <£31, the property, of/Ernest • Albert Cole. 'Mr. :;H. O'Leary appeared for accused. , 1 Ernest / Albert; Cole,' secretary .of the. 1 Thorndon' Flying ' Club,' y. 53 Tliorndon Quay/Wellington, stated-that on. September' 27' the )dove'cote behiiid his. residence : was . closed 'at 10 p.m., ,and at that 'time, ■it contained -twenty-five .homing pigeons,, •value <£31.. : At !l a;n/u next day the. whole of them ; were 1 missiiig;.; 'The ten rings -, produced in. Court had originally , been on 'the.-pigeons;.';"Witness",knew accused, who' used, to .board at his house about'; three years ago.-: 'Accused had no, claim on.tho .pigeons.,. Witness saw .dead pigeons, on, September•• 29, ; a'nd,. identified thirteen of tliein as. those .that iad been in' the-dove- 1 : cote. ■ -V- y - : W To Mr.'o'Leary : Accused y. did N . work:' 1 ;about the place during' tho timo he was. .staying at; witness's place, ; ajid, built y a! .poultry, runi but. was paid for it. . It ;was trub that accused, had once made", a •present of poiiltry to witness's mother,; and he had also presented some pigeons to "witness, y ■•/'•■■ •• ' '

. Detective Cameron gave evidence as'to visiting • CiceKs • house in Hawkcston'e Street >611 September 28,' arid' finding ;. a number of dead; pigeons , in a. sack . upstairs, while a bucket contained a, quantity :of feathers. Accused was arrested, and charged ; witli the offence, and-:lie' then made and signed a statement admit-; ting the-offence. . . '' . .... ■ ' . Accused' pleaded "guilty, and' was com-; mitted to the; Supreme Court for; sentence:.,.- . ' . ALLEGED HOUSEBREAKING.; . James'Crimmins and .Charles Cunningham were charged that on October 3, at Wellington, .they did break rind enter -tho , dwollindious'o'of Mary Spencer, and did steal therefrom one rolled gold watch,' one gold chain, one silver matchbox, one shark's tooth, and9s. I fid. in silver, a total vnluc of .£l7 Ids. 6d., the property of Thomas Davidson. On the application of Chief-Dotoctivq Broberg, a remand was granted until October 13. ' v OTHER CASES. - Richard Evnns, who pleaded gi|ilty. to a charge of drunkenness, was dcemod to be a habitual inebriate, and. w'as sentenced to 21. days' imprisonment, a prohibition order to issue, against him for twelve months.'. Two first offenders were fined 55., witii the usual,alternative, and another, who did not appear, .was ordered to forfeit his bail of 10s. Louis Francis Hardy,; charged with drunkenness and with-broach of a-prohibition order, was remanded until October'TO. Tho report of yesterday's proceedings at the Supremo Court will bo found on Dage 8 of this issue.,