LAW REPORTS.

Dominion, Volume 4, Issue 1114, 29 April 1911, Page 15

LAW REPORTS.

COURT OF APPEAL. DAMAGED OHINEMURI FARM. BUT HOW DAMAGED? Ohinemuri River silt —the battery tailings with which the river named is charged—loomed in an appeal case yesterday. The case came ' before tho Chief Justico (Sir Robert Stout), Mr. Justice Williams, Mr. Justice Edwards, Mr. Justice Chapman, and Mr. Justico Sim. The parties were George Cooper, of Racroa, farmer, appellant, and Jacob Bertolson and Rudolf llasmusscu, farmers, Paeroa, respondents. The short history of tho case is as follows:—Originally an action was brought in tho Supremo Court, before Mr. Justico Cooper, by Bertelsou and -llasmusscu, to recover damages for alleged loss through tho Hooding of a farm wliich had been leased to them for twelve years -by Cooper. These floods, it was stated, came from the Ohinemuri River, and it was alleged that thoy had deposited quantities of silt on the farm. The Court found for Bortclson and Rasmussen for £656 os. damages, and costs amounting to £246 10s. <id. The appellant Cooper now moved that tho whole of Mr. Justice Cooper's judgment bo reversed; or that it be varied into a judgment of nonsuit. • It was set out that, in the. Supreme Court action, plaintiffs had alleged that tho land had (ever siuce the flood of 1907) been totally covered with silt to a thickness, iu some places, of two or three feet, and had consequently been valuelos for grazing, or any other useful purpose. The jury had found that no part of the damage sustained had been occasioned by au act of God; that practically no part of it had been caused by the river overflowing its banks, and also that, practically, tho whole of the silt deposited ou tho land had been brought along the drain in question from the time that the first wooden culvert was destroyed in 1902. Tho jury further decided that the damago had been occasioned through the defendant not taking reasonable precautions in maintaining the structures on tho boundary drain. This neglect had 'practically destroyed tho usefulness of tho farm for a tenant on n short lease.

It was further set out, for the purposes of the appeal c?.se, that.on May 23, 1899,- tho appellant Cooper, who was then owner of 246 acres, had leased tho land to the respondents for 12 years as from December' 1, 1598. Tho land was adjacent to the bank of the Ohinemuri ltivcr, but a small area, situated between the leased block and tho river, was held by the defendant. The leased land was.lower than tho bank of the river, but the only practicable and effective manner of draining it was, and is, by means of an outlet drain into tho river. An open drain for the leased land had been enlarged by Cooper, who took precautions to prevent tho inrush of flood waters fro.n tho river, but exceptionally heavy floods, which had occurred in" 1902 and 1903, and again in 1907 and 1919, had.carried the protections away, and the drain had allowed the" silt-laden waters to flow over respondent's farm. Tho appeal was on points of law. • Argument proceeded all day, and had not been completed when the Court rose. Sittings,, resume at 10.30 on Monday.. Mr..T. Cotter, with him Mr. P. H. Mueller, apnenral for appellant, and Dr. Baitiford,'for respondents.