THE COURTS.-TO-DAY.

Evening Star, Issue 7752, 25 October 1888, Page 2

THE COURTS.-TO-DAY.

SUPREME COURT.-CIVIL SITTINGS. (Before His Honor Mr Justice Williams.) LOGAN V. THE CORPORATION OF DCNKDIN. The plaintiff in this case is Alexander Hugh Logan, of Dunedin, coal merchant, carrying on business under the style of the Fernhill Coal Company; and the defendants, the Mayor, councillors, and citizens of the City of Dunedin. The statement of claim set forth : (1) The defendants were prior to the Ist day of January, 1887, a body corporate under the Municipal Corporations Act, 1867, and subsequently under the Municipal Corporations Act. 1870, and have since the Ist January, 1887, been a body corporate under the Municipal Corporations Act, 1886. (2) The plaintiff is and was on and prior to the 22nd April, 1888, the lessee and occupier of a coal mine situate in the Dunedin and East Taieri district, known as the Fernhill Coal Mine. (3) In the year 1880 the defendants, in exercise of the powers on thatbehalf conferredon them by the Municipal Corporations Act, 1876, constructed a water race through part of the land beneath which the plaintiff's said coal mine is situated, for the purpose of conveying water to the City of Dunedin. (4) The defendants constructed the said water race so carelessly, negligently, and improperly, and afterwards kept and maintained the same so carelessly, negligently, and improperly that a large quantity of water escaped from the said water-race on the 22nd April and flowed into the plaintiff's said coal mine and damaged the same (5) Plaintiff therefore prays judgment for the sum of LI,OOO. In the statement of defence the defendants say : (1) They admit the allegations contained in the first paragraph of the statement of claim. (2) They deny that the plaintiff is and was on and prior to the 22nd April the lessee and occupier of a coal mine situate in the Dunedin and East Taieri district, known as the Fernhill coal mine. (3) They admit that they constructed a water race, pursuant to and in exercise of the powers in that behalf conferred on them by the Municipal Corporations Act, 1876, for the purpose of conveying water to Dunedin ; and say that they constructed it in 1879 through and upon their own land, taken under powers contained in that Act and the Public Works Act, 1876, and other Acts enabling them in that behalf, and deny that the plaintiff's coal mine is or was beneath the said land. (4) They deny that they constructed the said water-race so carelessly, negligently, and improperly that a larce quantity of water escaped from the said water-race on the 22nd day of April, 1888, and flowed into the plaintiff's said coal mine, and damaged the same. And for a further defence defendants say that the injuries and damage (if any) suffered by plaintiff was caused by his own negligence and the negligence of his predecessors in the careless and improper working and management of the mine. And, for a further defence, defendants say that the predecessors in title of the plaintiff have received full compensation for the damage (if any) caused by the construction of the works in connection with the formation of the race, and otherwise for the action of the defendants in injuriously affecting the mine, pursuant to the Public Works Act, 1876, and the Public Works Act, 1882, and pursuant to several awards of a Compensation Court, dated respectively the 12th August and the Bth May, 1884. And for a further defence defendants say that the causes of action (if any) in respect of which plaintiff now sues arose more than six years before the commencement of this action.

Sir Robert Stout appeared for plaintiff Mr F. R. Chapman for defendants.

Sir Robert Stout said that if defendants by their statement of defence meant to say that plaintiff ought to have sued for negligent construction under the Public Works Act, he should like to hear what his learned friend had to say on the point. Plaintiff could not sue in this way until the damage had occurred. Tiie circumstances of this case were as follows: The race, it was admitted, was constructed by the Corporation. It would be«necessary in order to understand the planß and the nature of the ground for His Honor to visit the ground, and he (Sir Robert) suggested that the Court should rise a little earlier for the purpose of affording time for the visit. About a week or so prior to the occurrence of the circumstances that formed the cause of thiß action it was noticed that there was some trickling of water into the mine; but nothing was thought of that at the time, until a boy driving a milk cart noticed water going out of the road. He went to one of the miners and told him. The miDer saw the water running, but at that time there was no slip in the race. The fact was that this water was oozing out of the road. It was dry weather at the time, there haviDg been no raina for some time. When the man went into the mine he heard a tremendous fall—a fall with such force as to break a wire and when the man came out acain the hole in the race appeared. What happened then was that the mine road was blocked up, the mine was flooded with water, the whole of the water found its way into the mine, and there was a large hole in the race. But this was not all that had happened. The whole side of the hill had moved, and part of the strata on the side of the hill had moved over another part of the strata—in fact, pushed bodily down the hill. How did this occur ? Plaintiff said that in the race itself all round the hill there are what are termed joints, or in the Scotch mining phrase backs. These were formed by the contraction of portion of the earth's surface. The text-books said that these joints sometimes went down 600 ft, and in this case they could be found in the coal 100 ft below. There was in the race just where this occurred a joint or crack still visible, which went along the race for a considerable distance, and practically drove'the hill out. As to the existence of this crack there could be no doubt. The Corporation sank a shaft and found it, and hurriedly covered it up they did not wish it to be opened. There were three cracks in the race at another part, parallel to the race, and in it, running vertically down into the coal. Counsel here exhibited plans of the race, and traced the crack referred to ; after which he proceeded to say that the whole of the hill was of such a nature that it could be easily moved, and the race should never have been made there at all, for there was sure to be a considerable amount of leakage. This had actually happened, as could be seen by anyone looking at the surface of the hill. All the ground above the race was parched, while below the race the vegetation was green, showing that it had been watered. His Honor: Then the race is only a ditch ; it is not flumed ?

Sir R. Stout replied that this was so. For the last six years the Corportaion had been told by their own officers that tho banks were slipping down the hill, and had hadtocontinuallv puddle the race. Recently plaintiff found" a large quantity of puddle on the spot, no doubt intended to be put into this very crack. So long ago as 1882 the Corporation had been warned by a report from Mr Sligo, inspector of the race, that the whole hill was slipping ground. It would also be shown in evidence that since the sitting of the Compensation Court in 1884 there had been no mining under the race, except the making of a road, which had not caused any subsidence, and was still standing as true as the day it was put in. The hill had slipped owing to water being brought on to it, and he would ask any gold miner whether he would have brought water along that hill without using fluming or piping. It was alleged, on behalf of plaintiff, that neglect had been shown in tho construction of the race ; that as prudent people the Corporation should not have brought the water through an open gutter over ground that had these cracks in it. One of these " backs " was so open that a piaee of paper was sucked into it the other day by the flow of water into it. When the case was tried in 1884 the Corporation contended that there was no danger in conducting the mining operations so long as a oertain amount of coal was left.. But the Fernhill management had not mined there at all, because they had not 'considered it safe to. do so. At the very time, however, that the Corporation said that the mining could be gone on with they had in their archives a letter from their water-race manager warning them of the neces-

aity of taking immediate steps for the safety of the mine. Learned counsel read the letter referred to and other documents bearing on the same subject, and went on to say that he believed the only way. to make this race safe was to flume it all through this dangerous ground. He believed this was recommended by Mr Campbell; but as that gentleman was dead there was no evidence on that point. This work ought to be set about without a day's delay. As to the damages, the plaintiff had had to make another road into the mine at a cost of several hundreds of pounds, and had also been compelled to uso extra haulage. He had claimed only a moderate sum. The defendants were a public body, and plaintiff recognised that it would not be proper for him to seek to recover vindictive damages. Alexander Bathgate and George Mondy were called to give formal evidence as to plaintiffs title. John Hamill had been working as a platelayer at the mine for close on six years. fie looked after the railway and ihe sand pits. On the morning of Sunday, the 22nd of April last, he was in his cottage close to the Fernhill works. He was awakened in the morning by a boy who was driving a milk cart. The boy stopped and called out that the water had got out of the race and was running down the road towards the mine. This was shortly before six o'clock. Witness woke up one of the men employed by the company and took him along to examine ;vhere the water was coming down. The water was forcing its way down over the road on to the slope side andconveyed into the by wash. Witness did not at this time go up to the race. He thought that the water would be interfering with the top entrance to the mine. Finding that there was nothing in this that the water had not done any hurt —he said t*o Beardsmore, who was witk him, that they had better go and see the man who had charge of the race. Beardsmore went to this man's place, but did not find him. Witness then went with Beardsmore to the cottage and saw Brown, the race-keeper. Brown came out partly dressed. Witness told him to hurry up and get the water cut off. Brown and witness then went and discovered a very large slip across the road and a large crack along the line of the race, Brown said that he would have to send word to Mr Sligo. Beardsmore and witness then wentintothemine.enteringbytheupperpart. They went along down one of the entrances, and as they did so a very large fall took place in the mine. At that time they were on the main workiDg road. The fall was of such a weighty nature that witness came to the conclusion that the sooner they were out the better, and ho suggested to Beardsmore that they should go. At that time the bell wire used for signalling came down, and the boxes moved up towards the drum. The fall did not take place on the main road in the mine, but on a side road. When he went into the mine there was no water running from the mine—not that he saw ; nor did he see any water running from the mine immediately after the crash, as he was not then in the place where it would come out. Shortly afterwards, however, he did observe water coming from the mine. Witness reported these occurrences to Mr Gray, the manager, who came up as soon as possible. Witness visited the race during that day, and saw a large round hole and the crack still existing at each end of it. Cross-examined: Witness was a platelayer, and looked alter the repairs on the company a branch line, about a mile and three-quarters; also he looked after the sand pit, seeing that the trucks were filled with sand that would suit the orders. This sand pit did not occupy a large portion of witness's time. His business did not take him into the mine, and he was not a practical miner. He was in the main driving road when the fall occurred, and saw the boxes move immediately. L. 0. Beal, jun., surveyor and engineer, had made a survey of the Fernhill mine, and of the slip. He first saw the mine on the 23rd April, being accompanied by the manager, the engineer, and Mr Logan. Therewas water in the race when he went on Monday; the Corporation men were at work filling up the subsidence. Witness was examined at length as to the plans exhibited, and went on to say that he found " backs " extending right down into the coal measures. The crack had caused an opening of two inches. These backs or joints occurred frequently in the Green Island district. Witness had had experience of constructing water races. An ordinary person would see the backs in this ground; and finding these backs no engineer would make a race in that ground without fluming. It was dangerous to do so. The nature of backs was to open out. An inexperienced person might not know a back when he saw one. This back must have been there when the hill was made. The ground was on the move, and the race was bound to go. The only safe way to carry the water across this ground was by pipes. It was dangerous to the mine to leave the race as it now was. The backs at one corner were gradually opening, and that portion must go soon. Puddle would not be sufficient to keep a back tight in that formation. The formation was sand and shale —thirty or forty .feet of sand. The cause of the fall in the race was the .vater got in through the bick into the sand. The sand became swollen with the water and burst into the coal at the back, and getting into the drive. That caused a subsidence I above, and accounted for the subsidence underneath the race

Cross-examined: Witness took measurements of the face and the outcrop of the back and the creeks in the road below, and the formation of the slide of the shale in the bywash. This was done on the 23rd. There was too much damp to do anything in the mine on that day. He next went out on the 25th, and also went out on the 26th, 27th, 28th, 30th, also on May Ist, 2nd, 3rd, 4th, sth, and 23rd. He was also out on other days, but could not speak positively as to the dates. The water is running in the race now; if the race were stopped one could see the back. On the 23rd April the back was to be seen for 28ft on the bottom. Saturday, the 20th October, was the last day he went out. He then saw backs opening out; these were across the valley. [Witness was here crossexamined at length as to the preparation of the plans.] From his observation of the back in the race he should say that it dipped inwards towards the hill. His actual view of ic only extended for Bft or 9ft, as far as it was uncovered, and he did not see it below, but he should say that the dip was pretty nearly vertical. If witness were manager of this mine he would not have mined so freely through the ground as if there were no race. He would have noticed the backs and would have insisted on having the race flumed. These backs passed through all the strata and into tho coal itself. Irrespective of the mine there are slips onthehill above. Coal measures—by which he meantthestrataoverlyingthecoal—were always liable to slip ; this was one of the indications looked for. Most of the slips in the hill above stopped on the first bed of shale. At the point where the race gave way the formation is shaly—principally shaly and clayey. Witness did not know the actual depth to the sand at the point where the race gave way; he could state it approximately, but had not taken measurements.

Re-examined: There is now a flume over the break in the race. Nathan Beardsmore's evidence was mainly corroborative of that given by Hamill. When the fall occurred (said Beardsmore) there was a thundering noise of falling earth, and the concussion of air was so strong that the curtain hanging in the main drive was driven up against the roof. This witness was not cross-examined.

At this stage of the proceedings (2.15 p.m.) it was agreed to adjourn for the purpose of giving time for His Honor to make a personal inspection of the- locality this afternoon. Counsel engaged in the case and an expert witness from each side also proceeded to the mine. The case will be resumed at 10.30 a.m. to-morrow. RESIDENT MAGISTRATE'S COURT. (Before Messrs F. Meenan and H. North, J.P.s.) W. Crawford v. R. Gill.-Claim, L 6 Is 2d, for goods supplied. Mr Thornton appeared for plaintiff, for whom judgment was given for L 5 12s 7d, with costs. Dunedin Brewery Company v. Catherine Hay.—Claim, L 8 Is lOd, on a dishonored promissory note. Mr Sim for plaintiff.

—Judgment was given by default for the amount claimed. W. Gregg v. J. T. Smith, Waipahi.— Clftim, LlO 19s, on a dishonored promissory note.—Judgment was given by default for the amount claimed. CITY POLICE COURT. (Before Messrs H. Gourley and J. D. Feraud, J.P.s.) Sly-crog Selling. Janet Oliver was charged with having, on the 21st inst., sold beer without being licensed to do so, also with haviDg committed a similar offence on the 22nd inst. Mr E. Cook appeared for accused.—Evidence was given by an Italian named Nicolo Fabri, to the effect that he and a friend were at accused's house on the night of the 21st inst., and while there they drank three bottles of beer, which accused supplied them with, and for which witness paid accused 7s 6d. Witness had for a year past been in the habit of going to the house to sell images, and used often to have a glass of beer there and pay for it. On the evening in question witness gave the money for the beer to one of the girls, who opened the bottles, and she handed the money to accused in their presence. Neither witness nor his mate went into any other room but the sitting room that evening.—Witness's mate gave corroborative evidence. —Sergeant Gearin and Constable Ward gave evidence to the effect that they went to the house, and that accused admitted that the two men had been given beer.—For the defence accused and two girls named Annie Norris and Julia Collins gave evidence of an entirely contradictory character. They all swore that no money was ever paid to accused for beer in the house; accused used to keep beer for the use of the girls, and never charged even them for it.—This closed the case, and Ser-geant-major Bevin said that the second charge would bo proceeded with, but the evidence would be similar to that in connection with the other one.—The Bench said that they might in the meanwhile say that they were perfectly satisfied that the case had been made out, though the evidence was unsatisfactory on both sides; there was no doubt at all that there had been a sale of drink.—Mr Cook then agreed to plead guilty to the second charge. The Bench repeated that they were perfectly satisfied that there had been a sale of drink, and also that it was a very common practice in houses of the kind kept by accused. It was a practice that the Bench were anxious to put down, and the police, or whoever instituted the prosecution, deserved the best thanks of the general public for so doing. The accused would be fined LlO and costs, with the alternative of a month in gaol: seven days to be allowed for payment of the money. Theft of a Watch.— Michael Murphy was charged with having, on the 22nd inst., stolen from the Central Hotel a silver hunting lever watch valued at L 8 10s, and a silver chain valued at L2, both the property of Joseph Pring.—Detective Henderson asked for a remand till to-morrow, the accused having only just been arrested.— Remand granted: bail allowed in two sureties ot L'2s each.

Lakcejjy from an Hotel.— Mary White was charged with having stolen, on the 24th inst., from the Royal Hotel, Walker street, a bundle containing a dozen silk handkerchiefs, valued at L?, and the property of Goluf Mollah. Mr Solomon appeared for accused, who pleaded " Not guilty." Evidence was given by the prosecutor, who is a Hindoo hawker, to the effect that he called at the hotel and opened out his goods in the dining-room, where accused, the hotelkeeper's wife, and some other people were. He then went into the kitchen to get some tea. After leaving the hotel he found out that the bundle of handkerchiefs was missing, and on going back to the hotel and asking for them accused brought them downstairs and gave them to him. Witness told her that another dozen had been stolen from him, and she said that she had not got them, and that she would sooner give him LI than go to the police station,—Accused stated that she was servant at the hotel, and her version of the affair was that the dozen handkerchiefs were taken out of the pack by a woman who was in the dining room, and who thought that they were pinafores, but on finding out that they were not she gave them to witness, who said they were no good to her and that she would return them to the hawker. —ln cross - examination accused said that she took the handkerchiefs "in a lark."—The Bench dismissed the case, but advised accused to abstain from such " larks " in future, otherwise it might be serious for her. Stray Animals,— Charles Ashman was, for allowing three cows to wander at Caversham, fined Is per head, without costs.— Thomas Allen was fined Is, without costs, for allowing a mare to wander in the same district.