ALLEGED DAMAGE. BUILDING EXCAVATIONS.

Evening Post, Volume LXXVII, Issue 51, 2 March 1909, Page 7

ALLEGED DAMAGE. BUILDING EXCAVATIONS.

CLAIM FOR £1500. His Honour, Mr. Justice Cooper, occupied the Bench at the Supreme Court yesterday to hear an action brought byIsabel Jane Field against Allen ilaguire, contractor, Wellington, for alleged • damage done to plaintiff's property by defendant during some building operations. Mr. H. D. Bell, X.C, with him Mi". M. Luckie, appeared for plaintiff, while defendant was represented by the Attorney-General (Dr. J. G. Findlay, X.C), who had with him Mr. E. J. Fitzgibbon. The statement of claim set out that plaintiff is the registered proprietor of part of section 483 on the plan of the city of Wellington, and that defendant is the registered proprietor of the -other tpart of the said section adjoining the land of plaintiff, who was and is entitled to have her land supported by the defendant's, and it is alleged that, on 9th January, 1907, and at divers times thereafter, the defendant wrongfully excavated, cut away, and removed portion of his land near to and acV joining plaintiff's, without leaving proper and sufficient support. Owing to this, plaintiff asserts that portion of her land has fallen and slipped away, the land, thus being damaged and greatly diminished in value. Wherefore the plaintiff claimed a sum of £1500 damages and costs. The allegations contained in parar graphs 1 and 2 were admitted by defendants. For the others it was denied that plaintiff was- and is entitled to have her land supported by defendant's adjoining; that on or about the 9th January, 1907, or at any other time there was any wrongful excavation, cutting away, or removal of portion of defendant's land adjoining plaintiff's without leaving proper >support therefor; and that plaintiff's land had fallen or slipped away, or that her land had been damaged and diminished in value to any extent whatever. The following special jury was empanelled : — Cromwell Tewsley (foreman), H. S. Aylwyn, G. T. Mason, F. J. Carter, G. Shu-tcliffe, Eobert Virtue, W. A. Palmer, F. Mitchell, W. H. Morrah, W. H. Croskery, W. R. Plimmer, and E. R. Dymock. After the jury was sworn, Mr. H. D. Bell said it was absolutely essential that the property should be viewed by the jurors. To permit of that being done, the court adjourned till- two o'clock. COUNSEL'S ADDRESS. Mr. H. D. Bell outlined the case for the plaintiff. The damage to Mrs. Field's property, counsel contended, was undoubtedly due to the excavating operations of defendant. For purposes of building he had cut away the land below the plaintiff's property, leaving it without actual or proper support. As an interesting proof of the stability of the ground in question, counsel affirmed that for 11 years antecedent to the excavations the bank had remained intact, and from plants it could be shown that the contour line of the face Had not changed during that period. Towards the end of 1906 defendant and his coowners began operations. Shortly after it was seen that Mrs. Field's land was endangered by the excavation under the bank. Expert opinion -oas obtained tc the effect that these operations were fraught with extreme danger to plaintiff's properly, and 'an application to restrain was granted by tho Supreme Court. While the defendant was proceeding with a motion to dissolve the injunction, th" mischief began to make itself apparent. Cracks made their appearhnce m plaintiff's garden, andl later the bank slid away in sections. Counsel submitted that plaintiff was very anxious not to interfere with the building operations provided hei land was safeguarded. Loth parties agreed in February that a wall was necessary, but the wall, ordinarily only a six weeks' job, was not completed till November of the same year, and meanwhile the slips continued the shoreing being carried away. Co-mcident with the erection of a second wall to support a second line of buildings cracks appeared through plaintiffs lawn Plaintiff considered her site one of the most valuable in the city because of its great natural advantages, and the beautiful view it mm i a £ de £: PcP c P r °P ert y> valued at £3500 by the Government valuator, had depreciated, counsel contended, approximately to the extent of £1000. From nrst to last there had been nothing but contempt for plaintiff's protests, and at no time was there any reasonable offer advanced to make good any los<« Isabel Janes Field and William Field gave evidence, and the case was adjourned till to-day. SETTLEMENT AGREED TO. When the case was called on this morning, it was announced by the Registrar that a settlement would probably be arrived at, and the jury was discharged until noon. On re-assembling, it was admitted that damage had occurred as a result of defendant's operations, and the terms of tho settlement as to withdrawing the case from the jury were announced as follow :—: — (1) Basis of assessment of damage to be laid down by Judge. (2) Ascertainment of quantum of damage to be referred to two arbitrators and umpire in usual way upon the basis of the Judge's direction as to the measure of damage. (3) Costs to follow event, and be taxed upon amount awarded, and any question relating to costs to be referred for settlement to Judge. (4) Award to be filed in court within one month from this date, or such further time as may be extended by the court. (5) Each party to name his arbitrator to-day or to-morrow. His Honour thereupon discharged the jury from giving a verdict. The parties had taken what he considered to be a very convenient course. The question now reduced itself to having the quantum of damages assessed by arbitration. The arbitrators would appoint an umpire in the usual way. He would reserve all matters relating to costs.