THE COURTS-TO-DAY.

Evening Star, Issue 7363, 8 November 1887, Page 2

THE COURTS-TO-DAY.

SUPREME COURT-IN CHAMBERS

(Before Mr Justice Williams.)

M'Dekmid v. M'Dkrmid and Others.— Motion for order as to carrying on the proceedings (Mr G. Cook).—Accordingly. Be Executors of J. J. Saunte, deceased.—Motion for taxation of costs of execuW solicitors (Mr A. S. Adams).— Accordingly. Re James Hale, deceased.—Motion for probate (Mr Wilkinson).—Accordingly. Re Robert Rodger, deceased. Motion for probate (Mr Hislop).—Accordingly. Corporation of South Dunedin v. Corporation of Caversham.—His Honor delivered judgment herein as follows:

In this case two questions have to be determined first, whether the defendants are entitled to discharge their sewer where it is now discharging j and secondly, even if they are so entitled, whether they ought not to be restiained from discharging it in such a way as to injure the stone culvert of the plaintiffs. Now, the defendants' sewer is undoubtedly discharging itself within the boundaries of the plaintiffs' Borough, and the contents are oarried to the sea through a ditch in the plaintiffs' Borough originally excavated by the plaintiffs It lies, therefore, upon the defendants to establish their right as against the plaintiffs to discharge their Eewer in the place and in the manner in which it is being discharged. Now, it appears that the general direction of the surface and storm water was origiually from the direction of the defendants' Borough, across the Flit towards the plaintiffs' Borough. The first drainage in the neigborhood appears to have been by ditches along the Oargill road. In 1876 the plaintiffs made a direct cut from the Andersonßay road to theharW.andled the water coming from these ditchesintq % The formation of the Oargill road, which took place about that time, of course raised its level and formed to some extent a bulwark protecting the South Dunedin Borough from the flood and stormwater coming over the Flat from Oaversham. The ditch on the north side of the Oargill road, however, led as it Was'into the straight cut above mentioned, to some extent carried off this water. This cut is the ditch into which the defendants' sewer now discharges. So things continued until about 188$, when the Borough of Cayersham propo-e4 to carry out a more complete system of drainage, and for that and other purpofeps to raise money on loan. Their original design was to start from the junction of the Main South road and David street to go down David street to the Oargill road, and then down the Oargill road to the point of discharge, the water being carried down tho Oargill road by 18-inch drain pipes. The greater part of this proposed drain was within the South Dunedin Borough; but as its construction at the expense of Oaversham would have been manifestly for the benefit of the South Dunedin Borough, no objection appears to have been taken by South Dunedin to this scheme, nor to the disoharge of the w*ter into the ditch at the end of the Oargill road. Negotiation?, however, took place between the two Boroughs, and in the result this scheme i»f drainage was abandoned, andentha 12th of February. 1881 an agreement was comp tp" between tho/ two Boroughs, that in consideration of thp Oavßrgham Borough carrying their main drain down the Wilkie road, and carrying a B£ft boxrdrain the whole length of the Oargill road, and completing the footpath on the Oargill road, the South Dunedin Borough would pay. the Oaversham Borough one thousand pounds. In oonsequence of this agreement the Borough of I Oaverjihan} promoted a BUI in Parliament to enabjc thein to alter their scheme of drainage. The Bill was duly advertised in May, 1884, am] beoame law on tlie 18th of October of that year. The second schedulo of this Aot shows that the main from Wilkie road 'S to carried along tho Anderson Bay road to Oargill roiu. Nothing id safu in the Act' as to tfbere the maju sewer is'to b£ discharged j but "objdousty the intention of the Oaversham Council in adopting the scheme set v out in the second sohe'dule was to discharge it at the same point as where the Oargill road drain was to be discharged- viu., into the ditoh cut in 1876 by the Borough of South Dunedin. Mr Wardrop, who was then Mayor of 'South'Dunedin, states that pefther he ndr the South Dunedin Council were aware of this Intpntl'pn, and ho did not begome aware of jt tjjl he fjrst saw the plltos some months after the agreement in February to pay the thousand pounds. Now, the plans would show that the end of the sewer crossed the boundary of the two Boroughs, and was pa t'y constructed upon and emptied it3elf into tho plaintiffs' ditoh. The ditch, being a publio drain in the South Dunedin Borough, was vested in the plaintiffs, and the plaintiffs were therefore aware that it was the'intention of the defendants to expend money on works erected on land vested in the plaintiffs. The sewpr was nudo by the defendants, and was completed as it now stands in September, 1885. No objection whatever was made by the plaintiffs before or durinsj its c instruction or after Its ooraple. tion. The defendants had evidently assumed throughout that it was understood'by the pjaintiffs that as all the drainage of'Caversham had been discharged into this ditoh In the past, so also it Was to bo discharged under the new scheme, which would materially benefit the pWjntiffs, and to which the plaintiffs had agreed to contribute'.' The CafgilJ'road drain p&rtof the scheme does not seem to have been begun ttlf January, 3886, when an arrangement was come to that the thousand pounds waß to be paid by the South Dunedin Council to a separate account, to be drawn upon in payments as the work progressed by' cheques B'gried by the Mayors of the two Boroughs. Subject to this, as appears by the town Blerk of O'aversbaiA's letter of the 18th of January, 1888, a fender fop the construction of the Oargill road drain was aocepted by the defendants. Now, at that time the Caversham main sewer had been completed. The construction of this sewer was part of the arrangement of the l?th of February, 1884, in respect''of whioh 'the plaintiffs were to pay a thousand pounds. 'lf the plaintiffs considered that the mode of construction ana the place of discharge of the sewer was a trespass upon their rights and not in accordance with the agreement howwai it that, with full knowledge of the facts and without remonstrance, they paid the thousand pounds and encouraged the defendants to' oomplete the agreement by constructing the Ca'rgill road'drain ?'The Oargill road drain, however, was completed; and thatdraib, the b./jf cjrajn on the south sdde of the Cariiil road, and 'the iQavcrahan) main sewer all discharged into the ditoh there. About tho middle of 1886 the Anderson Bay road was being widened, and correspondence took place as to extending the Oargill road drain across the addition jio the rqad. In August there were heavy floods, and on the Ssth of August' the plaintiffs wrote to the'defendants statmg tHafthe bok4rain on the south side of Oargill roa<j was'pbi working effectively owing to' the large body'of Water com : ng from tjjp jeweis on : th.° noifh side The letter suggested that paoh' Councif should extend their drains at their 'own post. This letter U important, as showing that tho Oargill road diain, although for the moat part In South Dunedin, was recognised as belonging to the Caversham Council. Taat it did belong to the Caversham Council is obvious, for, although it was outside the Borough, it was made by thorn to drain the Borough with the consent of tU'fe South ■ Uunedin. Borough. The Act of 1876, sections pj'arid pti, shoys that drains may be made "by' a borough ouC&Sde its boundaries, ' The lejtter, it 'will 1 be obseiyea, refers to tho being affebted by £be body of water from the sewpxc'on "north side—that is, ftom the Oargill road sewpr and the Oaversham main sewer. Tho letter, however, does not in any way dispute the lawfulnosj of the defendants discharging their sewer there, tyr Wardrop says that at the floods in August last" year ">o jound the water sp'rSadicg ' oyer• Jibe pad, 'and sfe letter, it may be a snmed, sp'as written in consequence of his observations. AfWr "thg letter some negotiations took place, and it was uliisnafply agreed that the Oargill road drain and the bot-draij) en the south side of the Oargill road should De eontin&ed, ag they are now continued, to the east Bide of the railway, at the joint post of the two Boioughs. The work was accordingly carried out by the South Dunedin Borough on a specification qf which Caversham approved. At the time the arrangement for this continuation was made np objection was made by the plaintiffs to tba disoharge of thp Caversham spwer, The letter of the 2»th of August had shown that the water from this sewer affected the disoharge of the boxrdrain. That, however, it was agreed to remedy by conr tinuing the drains. If the Oaversham Council had thought that their right to discharge their sever into the ditch was disputed, it is not in the lgpst probable that they -would have consented to jou>in''auy'arrangement for and expend money in extending these otTjer'drivftis. Nothing further took plaba tjj the jst of Decpxiibef, 1886, when the plaintiffs wirote,. to . thp defendants, calling attention' to the unprotested state' of the mouth of the main drain, and suggested that in the. event of a heavy fall of rain, the force of the water would wash away the earth from the stone drain. In Fefyuary and Mapoh a few shillings were expended by the South' Dunedin Corporation in protecting the culvert, Half of this was charged to Caversham and paid, On the 16th of March the plaintiffs wrote to the defenthat earth had been washed away,, and that they would bold.the defendants reponsible; and on.the 31stof;May .they wrote that they would not acoept the balf-cost of damage, but would take proceedings to recover

■•■.... ■■. the fufl amdiiint. No mention was made of (lis- ; putingj the-fight of the defendants to discharge j the.BeWer iipito the dfttch at all until tho aotion i was'brought. Under these circumstances, I do not think that the -plaintiffs can now allege that the defendants'have no right to drain into the ditch. The defendants evidently believed that under ; 'their arrangement with the plaintiffs no objection would be taken to their discharging the whole drainage where the drainage had been discharged before. The plaintiffs, during -the construction of the defendants' works, were aware of the defendants' intention, and allowed them without objection to carry their drain over and discharge into the plaintiffs' ditch. After the defendants' main sewer was thus constructed the plaintiffs induced the defendants to carry out the jreßt of agreement, of whioh or the main sewer was part, without any a? ssttion that the sewer infringed upon their rights. Lastly, the two drains were continued at the joint expense of both parties under an arrangement which must have assumed as its basis that the place of discharge of the defendants' sewer was not wrongful. I think these circumstances are sufficient to show an acquiescence by the plaintiffs to the discharge of the sewer into the ditch. In considering whether acquiescence is shown, the extent of the injury said to be acquiesced in is always matbrial. Here, apart from any possible injury to the culvert, the burden imposed upon the plaintiffs by the discharge is nominal, and the sewer was completed months'before the culvert was thought of. It had been arranged in April, 1885-after the plaintiffs must have known what the defendants' plans as to the sewer were-that the cost of the outlet ditch, which,.as then existing, would carry the water of the sewer and the other drains, should be borne by each Council equally. If discharging the sewer into the ditch would have been in law a trespass, the actual damage to the plaintiffs would have been nominal. After what has take place between the plaintiffs and the defendants, I think it would be against good faith for the plaintiffs now to turn round and say to the defendants—" You have no right to discbarge your sewer where you are now discharging it. Idp not think, therefore, that on this ground the Court ought to interfere hy injunction. On the contrary, if the plaintiffs were to attempt to assert what they now allege to be their right and to stop the discharge of the sewer by filling up the ditch or otherwise, an injunction would go to restrain them. If, then, the above reasoning is correct, the main sewer must be taken to have been lawfully discharging at the time the arrangement was entered into for the construction of the stone culverts. . Now, these coverts were constructed at the joint expense, and are to be maintained at the joint expense of the plaintiffs and defendants, and m,ay be considered as their joint property. Each has an equal interest in their maintenance. If the sewer was lawfully discharging where it was, these culverts, constructed as they were almost in the lino of its dis : charge, should have been constructed in such a way and with such protection as to make them fit to resist any dangers that might be expected to accrue from their being placed in that position. If anything, is now necessary to be done to ensure tnejr safety,'it' seemß reasonable thai; it should be done at the joint c,OBt o| tii'e parties, lamby no means satisfied, however, ttfat'the evidence' makes' put with certainty that there is a reasonable prospept of the dis? charge from the sewpr doing seripus injury to the culvert; or even if it had been made out that an absolute duty lay on the defendants to discharge so not to injure the culvert, that a case would have been made out for an injunction. For these reasons the injunction will be iefused, with costs.

CITY POLICE COURT.

(Before Messrs A. Bartleman and George Bell, J.P.s).

Drunkenness. r-James King .was fined ss, or twenty-four hours' imprisonment. Assault.— Edward Burton was charged with assaulting aud beating his wife, Georgina Burton. Mr Solomon, who ap-. Beared for cotpplatoant, gtatetf tha.t cfefe'naattt had for sometime past beaten her to 9uoh an extent as to cause her health to give way. She was a respectable hard working woman, and the sole support of the family, the husband not contributing in any way, but on the other hand demanding money for He asked the Bench that Burton should be bound over to keep the peaoe as much for his own sake as for others.—Tho Bench, were of opinion that if the man was aent Jto gaol the wife and family would not suffer, the wife expressing her willingness to keep her children.—Accused,' who did not appear, was sent to gaol for twelve mouths.