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THE COURTS.-TO-DAY., Issue 7959, 15 July 1889
SUPREME COURT.-CIVIL SITTINGS. (Ueforo His Honor Mr Justice Williams.) Johannes Schmidt v. Thk Mayor, Councillors, and Citizens qv the City ov Di-nkdin.—Claim, L2OO, damages. Mr Ilosking, with him Mr Solomon, for plaintiff; Mr F. 11. Chapman for defendants. The statement of claim set forth (1) that plaintiff was at the timo of the commission of the grievances hereinafter alleged, mid is still, the owner and occupier of allotment 29, block 13, South Dunedin Extension, and of the dwelling-house and other buildings thereon ; (2) the defendants were and are a corporate body within the meaning of the Municipal Corporations Act of 188o>, and owners of the City Gasworks; (3) defendants carried on and managed the works and the manufacture and supply of gas thereat; (1) the works are contiguous to plaintiffs paid buildings; (5) onand since January 31 last, and for a considerable period prior thereto, defendants' negligently ar.d improperly carried on the works, and by reason thereof largo quantities of offensive, poisonous, aud unwholesome smoke, vapors, gaaca, sulphuretted hydrogen, and noxious matters havo bjen wrongfully emitted from the works ; (G) "defendants wrongfully caused or permitted the manufacture at the works of chemical manures and particularly of sulphate of ammonia, and permitted large quantities of offensive and noxious matters to be emitted therefrom ; (7) assuming defendants' right to carry on such manufactures, they hud been guilty cf negligent and improper acts and omissions in the carrying out of the manufacture; (8) the particular acts and emissions with which plaintiff charged defendants were fa) the pipe or chimney provided for the discharge of the smoke aud other fumes from the works is, having regard to the contiguity of plaintiff's premises and tho surrounding neighborhood, too low and otherwise inadequate ; (b) no adequate apparatus or contrivance is provided for the consumption of smoke or other fumes, or for their purification or destruction; (e) no protection had been made for protecting plaintiff and his premises from the said eilensive matters; (0) by reason of defendants' acts as aforesaid, the offensivo matters itferred to spread I over plaintiff's premises aud through the air ' of tbo neighborhood, and damaged the former's house, fences, fixtures, furniture, and chattels—aud in particular the paint and galvanised iron on the house—and poisoned and impuriiied the air of tho neighborhood and rendered the house unwholesome and uncomfortable to live in, injured the health of plaintiff aud his family, and caused him to incur expense ; (10) unless defendants desist from their a'o/esaid acts plaintiffs buildings and goods will be further damaged, the air cout nue to bo impurified, the houso will become unfit to live in, and the health of plaintiff and his family be seriously injured and their lives endangered ; (11) in October, 1884, and in February, 1887, one of the residents in the neighborhood, by action in tho Resident Magistrate's Court, recovered damages from defendants on similar grounds; (12) plaintiff, on or about January 31 last, informed defendants, by letter addressed to tho Town Clerk, of the grievances alleged, bnt defendants had not remedied the Bame or taken any steps to do so ; (13) plaintiff* therefore claimed (1) L2OO as damages; (2) that defendants may bo restrained from manufacturing at the ga&works and elsewhere chemical manures, and in particular sulphato of ammonia, in such a way as to damage plaintiff's property or to impurify the air; (3) in the alternative, that defendants may bo restrained from eo carrying on the said works as to cause or permit sulphuretted hydrogen to issue therefrom ; (4) that defendants may be ordered to pay ccst3 of this action. The defendants, in their statement of defence, admitted the allegations contained in paragraphs 1, 2, M, and 4 of the statement of claim, save that they denied that thoy exercise exclusive control over tho whole of the premises known as the Gasworks. They deuied that fir.ca the 31st January last, and for a considerable period prior thereto, they have negligently and improperly carried on, managed, and controlled tho Gasworks, p.ml that by reason thereof largo quantities of offensive, poisonous, and unwholesome "moke, vapors, fumes, gases, sulphurotted hydrogen, and noxious matters have been wrongfully emitted from the works. They denied that they had wrongfully caused or permitted to be carried on at and by means of the said works the manufacture of comical manures and particularly of sulphate of ammonia, and that they have caused or permitted to be emitted and proofed from the works largo quantities of offensive matters. They denied the allegations in paragraph 7, and also that they had been guilty of the acts cr omissions alleged in paragraph 8. They denied that by reason of their acts and omissions as alleged noxious mattora were omitted from their works and affected plaintifl'B properfyjand the air in the neighborhood, as described. They denied the allegations in paragraphs 11 and 12. And for a separato defenco they said that on November 1, ISBB, thoy handed over to Kempthorne, ProsEer, and Co.'a New Zealand Drug Company, Limited, of Dunedin, manufacturing chemists, the sulphate of ammonia works that caused the alleged injuries, and gave thr-m esclunivo control over and possession thereof for s term of years, ar.d if anything that has since been dono has created a nuisance, or caused injury to plaintiff, it has arisen from causes heyond defendants' control, and in premises not under their control, and to which they had no access. And for a separate defence the defendants said that tho generation and emission of aulphuratted hydrogen gas, and of tin other matters which caused the injuries of which plaintiff complained,, arose out of the manufacture of illuminating gas manufactured and purified for the use of the citizens of Dunedin and other places in the vicinity under statutory authority. And for a separate defenco they said that they and their predecessors in title have carried on the manufacture and purifying of gas in the said works for many years, and in so doina had always caused the emission of sulphuretted hydrogen and the other matters complained of in the same way as new, ani had carried on the said operations as of right for moro than twenty years before the commencement of this action. And for a separate defenco they said that they had carried on tho said manufacture, etc., for more than twenty years prior to October, 1884. And for a further defence they Baid that plaintiff acquired his property and built thereon and went to live in his said house many years after defendants had commenced to carry on the said operations, and with a full knowledge of their naturo and effect has continued to acquiesce in tho erection by defendants of expensive buildings and plant in connection with tho said works.
The following witnessos gave evidence : Johannes Schmidt (pressor, residing in Sraemar street, South Dunedin), Thomas Greenwood, Albert Williams (tailors' cutter), Thomas Bennott (presser), Adrm Davidson (miller, South Dunedin), James Davidson, Robert Stewart (carpenter, living at the corner of Argyle and Braemar streets, Souths Dunedin), Robert Gordon (engineman, Braemar street), George Johnson (carter, Argyle street), and John William Bullers (3toreman, Braemar street). [Left sitting]. CITY POLICE COURT. (Before Messrs A. Bartloman and J. H. Morrison, Justices.) Drcnkekness.—Three first offenders were convicted and discharged; Charles M'Cluskcy was sent to gaol for 14 days' without the option of a fine ; John Livingstone fined 10a, or 48 hours'imprisonment; William Ytamans and Thomas Barrett each 2s6d, or 24 hours'. Provoking a Breach ok the Peace.—-A lad named Joseph Jewitt was charged with behaving at South Dunedin in a manner calculated to provoke a breach of the peace. — Sergt. Macdonnell said that the parents of accused were respectable people, and had given the police ample security for his good conduct in the future. Under these circumstances Inspector Weldon had instructed him (tho sergeant) to ask the Bench to allow the charge to be withdrawn.—The application was granted, the Bench administering a caution to accused. By-law Case,— EcMard O'Neill was fined
5s and costs for permitting a cow to wander. Prohibition Order.—On the application o£ his wife, an order for a year was granted in respect to Alfred Gore.
THE COURTS.-TO-DAY., Issue 7959, 15 July 1889
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