CONCERNING A DAM.

Evening Post, Volume LXXX, Issue 83, 5 October 1910, Page 8

CONCERNING A DAM.

AT THE COURT OF APPEAL. To-day the Court of -Appeal was concerned with the case of Edith Dorothy Ellis and John Eli Ellis v. Karl Rasmussen — an action concerning a dam an the Waiwetu River, Lower Hutt. The case was heard in the Supreme Court previously by his Honour the' Chief Justice, Sir Robert Stout, and the presant case was an appeal from his decision. The court was comprised of their Honours Justices Williams, Edwards, Cooper, and Chapman. Mr. C. B. Morison appeared for appellants, and Mr. W. F. Ward for respondents. Mr. Morisoin said that appellants in the case (flock manufacturers) were the owners of the freehold on both sides of the Waiwetu stream, Lower Hufct, on " which property had been erected a mill dam by the predecessor in title, Samuel »'' Mason. Respondent was the occupier of land about a quarter mile above the , dam, also abutting on the stream. Appellants were the owners of the bed of the stream right up to the respondents' boundary, where the mill stood, and of • the freehold on both sides of the stream. There were originally three heads of . .' damages : — By slips caused by the dam, of damage to drainage, and the submer- _^ sibn of a small area, of the bed of the •■• watercourse. The first, said counsel, *"""had been absolutely disproved, and the • ~ second had been abandoned. The only - question left was as to the rights arising • from the submersion of the small area in the bed of the watercourse — the re*i ault of every "fresh." '.2 In reply to the Bench, Mr. Morison I" said that the finding of his Honour the •' Chief Justice on the facts was not ques- ,,., tioned, only on acquiescence. The dam iL w^ built in 1898, nearly twelve years ■ ;" before the action was commenced, or 1 before any notice was given to abate the l'< nuisance. tlnt In the -case before the Su- ' j preme Court the action was substantially a claim for damages to his land \' by a dam erected on Ellis's land, causj ' ing the water in the stream to back up .. and flow ovev part of the land. Plaini; tiff (Rasmussen) also claimed an injunc- *'' tion ordering the removal of the dam. ; ' The court' decision was that the only i real damage plaintiff sustained was the 1 injury to the land flooded — 2 1-10 •> perches. Judgment was given far plainf'.[ tiff for 40s damages and an injunction. The present case Was an appeal against that decision. . }, Mr. Mousin submitted that the appelrf, lants always understood that if their • ' dam did Rasmussen any harm they J would pay for it. but it was contended ',' that respondent had debarred himself -. by his conduct in claiming an injunction. No injunction could be granted ,' on the ground of a menace to title. (Sitting.)