STATE COAL DEPOT.

Evening Post, Volume LXXVI, Issue 142, 15 December 1908, Page 7

STATE COAL DEPOT.

■ - AN ALLEGED NUISANCE. SUPREME COURT ACTION. An action, the New Zealand Farmers' Co-operative Distributing Co., Ltd., v. Tho King, was commenced in tho Supremo Court to-day before his Honour Mr. Justice Chapman and a jury of twelve, of whom Mr. Thos. Ward was foreman. Plaintiffs are the lessees of a piece of land in Victoria-street, the yearly rental being £455. Plaintiffs were in occupancy of the premises on the land until February, 1907. Tho Crown has since 1906 occupied a section in proximity to plaintiff's as a State coal depot, tho dividing line between the sections being a right-of-way. Plaintiffs allege that defendants cause coal dust to be diffused over plaintiff's premises in a way *to cause a nuisance, and that for this reason plaintiffs have been unable to let the premises in question. Plaintiffs also claim that, while they have in common with the Crown right to use the right-of-way mentioned in the pleadings, that defendants placed quantities of earth and other material on the surface of such right-of-way, and thereby caused surface water to flow under plaintiff's building and over the section. The alleged consequence was that the building and land became wet, and unwholesome for storage and other purposes. Plaintiffs accordingly claimed £1000 damages, and an injunction to restrain the continuance of the alleged nuisances. The defence was that the land occupied by the Crown had been used continuously for twenty years as a coal depot, first by the Brunner Coal Co., then by the Grey Valley Coal Co., then by the Westnort Coal Co., and lastly by the State Coal Depot, and that during the whole of that time there had been the same stacking of coal, and the same operations connected therewith as was tho case to-day. Further, it was submitted that plaintiffs, when they took their lease, were aware of the alleged conditions existing by reason of the coal business. The other complaints in the action were specificially denied, and it was further contended that by reason of the continuous use of the land now occupied as a State coal depot the Crown had accrued to it a prescriptive right to use tho land for its present purpose. The Crown had carried on its operations under statutory authority. Finally it was stated that the lands occupied by the parties to the suit were leased to them by Martin Kennedy, and that the lease granted by Martin Kennedy to plaintiffs was impliedly subject to the condition that Martin Kennedy and his lessees might carry on the business of a coal depot. Mr. C. P. Skerret, K.C., with him Mr. Luckie, appeared for the plaintifts, and Mr. H. D. Bell, X.C.. with him Mr. Fitzgibbon, for the Crown. When the jury was sworn ( in an adjournment until 2.15 p.m. was made in order that an inspection might be made of the premises. When the court resumed at 2.15 p.m., his Honour intimated that the hearing of the case would not be. proceeded with until 10.50 to-morrow morning, as a partly-heard case was at that time before the court.