COURT OF APPEAL.

Dominion, Volume 5, Issue 1511, 6 August 1912, Page 2

COURT OF APPEAL.

COMPENSATION TO BE CLAIMED. Decision was delivered by the Court ol Appeal yesterday on certain points of law arising out of an action claiming damage* in respect of the flooding of drains. Th< Court for hearing comprised the Chie) Justice (Sir Robert Stout), Mr. Justict Dennistou, and Mr. Justice Sim, Tht parties in the action were 'William Bryant Vater Pearce, fanner, of Ransiotn, plaintiff, and the Manawatu land Drainago Board, of Palmerston North,-defend-antW. ■ . At the hearing Mr. I'. K. Baldwin appeared for Pearce, while Mr. C. B. Moripoll, with Mi'. F. 11. Cooke, appeared for the defendant board. In the statement of claim filed in the Supremo Court if. was set out that Pearce is the owner of land in the drainage district of the Aornngi Land Drainage Board and also of lands in the district of the Mnnsiwatu Board. It wot alleged that the defendant board had negligently diverted into certain draijis a greater quantity of

water I linn the drains wove t-sipsihlo of convoying and had :il-o increased the (jiuuititj* of water without' providing udditional means, for conveying it. A furtlioi' allegation was that the hoard had allowed tlio drains to full into disrepair, so causing ihem lo overflow and do injury to J'earce's land and slock. Jn respect of these injuries, ho claimed .£-01) damages and a mandamus compelling the board to clear the drain-. Certain points of law wore removed into the Court of Appeal for argument, and for the purpose of argument, the following admissions were miide:—That tlio main drain was on land taken liy the hoard under the Public Works Act; that the hoard was incorporated in ISM and had since that date had the control and management. of all the drains complained of; that prior to ISM all the drains complained of existed and had been made by tlio Government of Now Zealand. What the Court is principally asked to dctide is; Whether plaintilf has a common law right for damages. l ' Whether lie should proceed by way of a claim for compensation? Or whether he should apply for a mandamus compelling the board to clear the drains? Tlio Chief .lush'ce, Mr. Justice Denniston and llr. Justice Sim all delivered separate decisions. All agreed that plaintiff should proceed by way of claim for compensation except (as the defendant board admitted) in ease of damage through disrepair. Mr. Myers, who took judgment for plaintiff, mentioned that an appeal, may be made. KING GOLDMINIXG COMPANY. Yesterday tho Court of Appeal dismissed the appeal, which had been ma do for the reversal of a decision of Mr. Justice Cooper, in which his Honour had granted an application which had been made by Kichard Cock, of New Plymouth, to have Cock's name removed from tho list of of tho King Goldmining Company, Ltd. (in liquidation). The Bench at the heaving was occupied bv the Chief Justice (Sir liobort Stout), Mr. Justice Edwards, Mr. Justico Chapman, and Mr. Justico-Sim. In an affidavit, Cock stated that on or about April 18, 1910, lie had .applied to the company for. fifty ,C 1 .shares, and had forwarded the necessary application fee of ,£2 10s.' He had not paid the first call of Is. per share, which had fallen due on or about July. 11, 1010, and no judgment had been obtained against him for the recovery of that first call. Ho had subsequently received notice of a final call of :ls. per share, and notice that, lie had been included in the list of contributories, and was indebted in the sum of £i 7 10s. to the company. . He had been advised that the fifty shares had been forfeited bv him through his non-payment within ' twenty-one days after Juno 14, 1910, of the first'call. . Mr O. N. Beero appeared for tho appellant company, and' Mr. C. H. Treadwell for Cock. ■Yftcr having heard Mr. Bceres address, their Honours reserved their decision, and stated that they would call upon Mr. Treadwell to address tho Court if they considered it necessary. . •Vs the time was limited yesterday, their Honours did not read their decisions, but announced that thoy bad all agreed that tho appeal should 1>» dismissed.