STATE COAL DEPOT.

Evening Post, Volume LXXVI, Issue 143, 16 December 1908, Page 7

STATE COAL DEPOT.

SUPREME COURT ACTION. AN ALLEGED NUISANCE. Hearing of the case, tho New Zealand Farmers' Co-operative Distributing Company, Ltd. v. The King — an action for the recovery of £1000 damages and an injunction, on grounds fully set out in The Post yesterday — was proceeded with before his Honour Mr. Justice Chapman in the Supreme Court to-day. Plaintiffs claimed that the State, coal depot in Victoria-street, and the carrying on of the business of coal vendors by the Crown, caused a nuisance, and that plaintiffs' premises were accordingly reduced in letting value. This alleged nuisance they sought to have abated. Mr. C. P. Skerrett, K.C., with him Mr. Lucki-s, appeared for plaintiffs, and Mr. H. D. Bell, K.G., with him Mr. j Fitagibbon, appeared for the Crown. In opening the case, Mr. Skerrett explained the grounds of the f.ation a>t considerable length. He said it might be> argued that tho dust which had accumu lated on plaintiffs' pjomises during "the last 17 months was not coal dust. The jury would be guided on that point by what they saw when they made an inspection. Evidence would be called to show that tho dust was diffused m conI sequence of the operations of the State | Coal Department. No attempt had been made by the department to minimise the dust nuisance created by it. He submitted the department had shown an utter disregard for the rights of its neighbours. It would he contended that the premises occupied by the State had been used as a coal depot for twenty years, but evidence would be called to show that the dust nuisance did not arise when the coal business was being carried on by private companies. The question as to whether the leases granted by Mr. Martin Kennedy to his tenants was impliedJy subject to the condition that th© business of a coal depot might be carried on was entirety a question for his Honour. Counsel also referred to the alleged raising of the right-of-way and tho damage that had resulted. Mr Bell interposed, when counsel for plaintiffs intimated that ho would call evidence, that the Crown, in waiving its rights, did not admit the right to grant an injunction against the Crown. Mr. Skerrett : "I can sea we can have no injunction against the Crown." The claim, he added, was limited to tha loss of rental from the time the plaintiff company quitted it up to the date of the commencement of the writ. Arthur Leigh-Hunt, manager of tho plaintiff company, was the first witness called. He gave particulars of tho lease and said -that the dust nuisance was growing worse and worse up to the time the company left the premises. The comCany moved to new premises because, eing auctioneers engaged in tho sale of perishable products, they had 'to move along with other auctioneers (who transferred their centre of operations to another part of the town) or become isolated. The company had made fruitless endeavours to let the building, and a firm of house agents had also failed to let it. Witness stated 'that he had taken hundreds of prospective tenants to the building, and many had taken notice of the dust. He had no doubt that the dust in the building was coal dust and not ordinary street dust. Witness read a statement ho had prepared, showing the loss of rent since February, 1907, to 21st November, 1908. The company claimed £824 13s 9d for rent, £6 for advertising the place to let, and £10 for the expenses of a canvasser who tried to let the building, a total of £840 13s 9d. Against this the company place a sum of £102 received from tho Scott Motor and Cycle Company, John Dnthie, and others, who used the building to store hardware, etc., leaving a net loss of £738 13s 9d. Witness was present when Mr. Gieson, a chemist, made an analysis of the coal dust found in the premises. Cross-examinsd : He had not the bal-ance-sheets of his company. Mr. Bell : Then why did you not produce them? Mr. Skerrett submitted that the bal-ance-sheets of the company were not relevant to this enquiry. The company was not claiming damages for .loss of property. The object of his friend was to show 'that the company was carrying on a business which was allegedly unsatisfactory. His Honour (to Mr. Bell) : Do yoa suggest that the balance-sheets aro relevant ? Mr. Bell : Yes. Witness, in answer to further questions by Mr. Bell, admitted that he had written to tho Government in February, claiming £500, and stating that if that sum was not forthcoming, the company would be unable to withstand the drain on its finances, and that the winding-\ip of the company would be disastrous to a number of small farmers. He admitted that during the time his company was in occupation of the building, and for a year afterwards, he had never made any complaint abqnt the dust nuisance. He did not think there was any use in doing so, as the company could not gelt the Government to remedy the surface water nuisance. In answer to further questions by Mr. Bell, the witness said the State Coal Department had gravelled and metalled the right-of-way. About six or nine months ago the right-of-way had been lowered and the water nuisance abated. The dust nuisance, however, continued. E. C. Mills and Robert Hall also gave evidence as to the alleged coal dust nuisance. The court adjourned until 2.15 p.m.