A SUPPORTED BANK.

Evening Post, Volume LXXIV, Issue 148, 19 December 1907, Page 2

A SUPPORTED BANK.

STJPIiEMK COURT ACTION. A QUESTION OF EXCAVATION. A motion to dissolve an interim injunction granted on 12th January, proventing Alien Magiurc, contractor, and Alex. John Band, contractor, from proceeding with excavating a bank at the ] rear of the Commercial Hotel for the j purposes of erecting the new building, was heard in tho Supreme Court, beforo Mr. Justice Cooper, yesterday afternoon and again to-day. The plaintiff in the action was Mrs. Field, wife of Mr. W. H. Field, M.P. Mr. Skerrcit./Ji.C., with him Mr. H. Buddie, appeared for tho defendants in support ot tho motion, and Mr. H. D. Rail, K.C., with him Mr. Luckic, appeared to oppose. Mr. Skerrctt, in opening, stated that tho facts wexe these : Mrs. Field's house was upon a. piece of land situated abovo Lambton-quay and part of her land consisted of a bank. That bank was not in its natural condition. Throughout tho whole of these proceedings, counsel on the opposing ,side had assumed that the bank was in its natural condition ; ifc never was, even at tho commencement of these proceedings, in its natural condition. The bank had been excavatod for many years. A firo had occurred which destroyed the Commercial Hotel, ancl which, to some extent at any rate, according to - the witnesses- af-j fected tho stability of Mrs. Field's property. It became necessary to rebuild tho hotel, and plans were prepared by -an architect, and the building com-menc-sd. Anterior to tho commencement of tho building in 1904, a slip of a very serious character occurred. Tho bank consisted chiefly of rotten rock, and had been a sourco of great trouble to the plaintiff in tho past. The person who was moving to rescind this motion was not tho contractor, but Mr. M'Guire, the owner of the land, and tho person for whom the building wa'j being erected. The wall, after some delay, was erected, and it served its purposes admirably as a protection to Mrs. Field's property. Diroctly that wall was finished counsel's client propooed to go on with the erection of the second wall. He applied to Mrs. Fiald. for permission to do the work, but the application was refused, and this application to his Honour to dissolve tho injunction was the result. Tho questions of the fact to bo considered by the court were (1) was the oxcavation done by the contractor the cauao of the slips in Mrs. Field's property j or would such slips hay© occurred oven if no excavation had been done by tho defendants? (2) Even if the oxcavation was, in some degree, the cause of the slips, was the present case one ifi which tha court would interfere iby injunction, or, in other words, would any injury likely to occur be temporary and reparable or serious and permanent? (3) Having regard to the fact that- the first wall had been erected, and to the present condition of the hillside, was it not equally in tho interest of tho plaintiff as well as of the defendant that tho second wall should go on? (4) Whether having regard to all the circumstances, iho injunction onght, on the balanco of convenience, to be maintained? Counsel went on to say that ho made n strong case for the third ground. It was, he said, jusfc as much to Mrs. Field's interest as it was to the defendant M'Guiro that the second wall should go in, because if ifc be successfully erected under tho supervision of Mr. Fitzgerald, then the result would be to mako Mrs. Field's bank much safer than over it was, ancl to prevent any claim for damages against Mr. M'Chiire, or if " a claim was made to lessen the damages which would have been .recovered. The protective works necesravy for tho construction of the Avail had been designed by Mr. Fitzgerald. Engineers had reported on the bank, and said it was stable at a slope of 45 degrees. The removal of the injunction did not mean that Mrs. Fiejd woukl be without her romedy. For / nearly a year this dispute had been n, serious trouble and anxiety to everyone concerned, and it was time that, s.oino finality was arrived at. Although the defendants would pnfc the case as strongly before the court as possible they would hail final settlement of tho case with pleasure. Mr. Bell interjected that tho matter was of grave consideration, and not of tho urgency which Mr. Skerrett described. His Honour: If I dissolve the injunction tho work goes on? Mr. Skerrett: li tho injunction remains 1 will accept your Honour's judgment, and we must adopt some other plans. Gerald Fitzgerald, civil engineer, gave evidence, and Ihe court adjourned until 9.30 this morning. The witness was fuither oxamiaed this morning, and tho proceedings acljourned until 2 o'clock to-morrow afternoon, to permit of another ease being taken. j