DAMMING THE WAIWETU STREAM.

Evening Post, Volume LXXXII, Issue 121, 18 November 1911, Page 9

DAMMING THE WAIWETU STREAM.

LEAVE AND LICENSE PROVED. Reserved judgment was given by th«| Chief Justice (Sir Robert Stout) yesterday on questions at issue between pro* perty-owners on the Waiwetu Stream. The parties were Eleanor Thorn* (plaintiff] and Edith Dorothy and John Ellis (defendants). At the hearing, Mr. A. W. Blair, appeared for plaintiff and Mr. C. B. Morison for defendant*. Plaintiff is the owner of land through which the Waiwetu Stream rune, and defendants own land further down the stream on which they erected a dam and established a flock mill, the mill being operated by the water. Plaintiff claimed that, by reason of the damming of the stream, a considerable portion of her land had been covered oy water, and erosion of the banks had taken place, for which she claimed an injunction and £500 damages. Defendant denied any damege, and' alleged that the erection of the dam wae by the express leave and license of plaintiff, who had acquiesced in it* erection, and consequently lost hoi; rights. The only point argued was the ques« tion of leave and license. In his judgment his Honour said the leave and license relied on was that, in consideration of the defendants raising a small bridge on the plaintiff's land and erecting a small wall, the plaintiff gave permission to the defendants to raise tho water in the stream opposite the plaintiff's land by 20in. The defendants' predecessor in title had erected a dam in the etream to get water-power for machinery that had been placed on and alongside the stream.. At the time the water had been raised about lOin, Ellis explained to plaintiff that the power was insufficient and that he had 1 been advised to raise the water 18in, and he asked permission to raise it> 20in. The plaintiff agreed on the defendant agreeing to vaiue the small bridge thai covered the stream on her land, and pub in a small wall or stop bank to protect part of Her land. This work was done | by the plaintiff's son, who was engaged by the defendant, to do the work and who wa« paid therefor. After this, at considerable expense, the water was raised. This took place in 1898. No objection was then taken or for soma years afterwards to the raising of the water level. The defendants' building and machinery were destroyed by fire, and a new building and machinery; erected, and still there was no objection. The first objection to the raising of the bank was on 26th June, 1905. There wae other correspondence, but nothing was done or agreed to, and the ivrit in this action was not issued until 12th May, 1910. His Honour accepted' the evidence of John Eli Ellis and WilHam Henry Ellis for the defence. Th« plaintiff (Eleanor Thorns), regarding some of the statements sworn to, could only) say ehe did not remember. The question was, Did these facts substantiate a plea of leave and license? The contention was that no such license was granted, and that if granted it was 1 revocable. He had already dealt with) the first contention, and as to the second he was of opinion that it was also nob valid. Hie Honour declared that the plea of leave and license had been proved.