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SUPREME COURT.-CICIL SITTINGS., Issue 10424, 20 September 1897
SUPREME COURT.-CICIL SITTINGS.
Satubday, Septembeb 18.'
(Before His Honor Mr Jußtipo Williams and a-specialjury of four.) J - ;
CHRISTINA SMITH AND ANOTHEB V. THE
OTAGO CHUBCII BOAED OF PBOPERTJT. Claim for £SOO damages and an injunction to restrain the defendants from allowing water to flow from- their land on "to the plaintiffs' land on the Taieri Plain. '•" v • The Hon. J. "MacGregor and T Mr Sinvlor the plaintiffs; the Hon. W. IX Stewart and Mr W. C. MacGregor for the defetidantfcw The jury retired at 8 35 p.m. to consider their verdict, and_returned at lQ.ss~p:tri. ''■': The following were the issues, with the answers made by the jury:—: '- '>' -- m. l, ?V 3 ' *■' ??v d - Where did Clear Creek, before tne alosgiel-Outram road was 'made, begin as a running stream? If itbogan-on the church land did it begin on the upper or lower half of such e ? -i f .' c , lear . Creek began on the church, land or Smiths land was there a depression oir the church land through which surface orflood wafer would naturally flow leading into Cleat Creek? v- ji 5 w , as such a depression did it begin on Fmdlay's land or the church land? K it began on Findlaysland where did it begin there ? If such depression beganonFindlay , slandhowfarfrratttte point where such depression left FindOayfe land was the culvert placed in the .Mosgiel-Outram ™„ d f he Mosgiel-OutrarrCroad ™ in a i Creek began as a running stream on s land about one chain and a-half fromi . utral ? Jf oad and about tworchalns nearer Duke s road than, the culvert of 1576. And continued in a clearly defined channel through the church land and Smith's land; • ■* i»& After the Outrani-Mosgiel road was made in ™L a *2 F&V 1 's? eulvert in the said roadAvas. w *w, lß i s, dl £ % drainage from Findlay-a. rlmvn th , e o dl^ h 0n the «« ">ad JUrf down the MUlUreek?-Yes, partially. '" nH, mad « the calyert injfce JioegielOutram road in 18?5, and the drain connected, therewith _on the church landjv Were the said culvert and d«iin made for the purpose of cany- ™ fe ase v fM ! ™ a „f * *?,. the church land MAbßwer by agreement of the parties:) They were made, by the: Provincial Government at the request of Findlayi who required them to carry off his he at the same time completing the embankmentof thet o -th » J .s*Wf: «** completion bl his part bemg t conditional on his obtaining r th» culvert and tail race. ,w* aß Edm uud Smith the factor of the defendant Board m 1875 when the said culvert and drain were constructed?— Yes. "- 10. _ Did he consent to the same beine constructed and to the drainage from Findlay's land being brought thereby on to the church land*--
11. Did James.Hamilton Reid, the then owner ™ h £ Pontiffs -land, know of the intention to construct the said culvert?-Yes ,} Z he know that Findlay.had made hii completion of theembaukment conditional on the construction of the culvert?— Yes ■«•*«■«=. ♦i, l3, d j h ? know _*? f the intention to construct" the said drain on the church land ?-Yes. ' 14. Did he know afterwards of the fact of its construction, and did he object ?-He knew and aid not object. «™ n * V JS the , inj !i ry any, which'the construe- 1 tion of the culvert did to Reid's land counterbalanced by the beneficial effect to his land of the construction of the embankment ?-Yes. , 16. Was the effect of Findlay's system of drainage on Ins own land and the making of the said SSkiSSt?? a) T ° d «chargl on to,theS?~. h fland the drainage of between 400 aad 500- ■?« ?Sf f I md L ay , s (6) To discharge on to the church laud a greater quantity of water than would have flown there if the said MosgielOutram road had not been made?-No. £stodischarge the same drainage on to the'church land in a more concentrated form than it would naye come m if the said Mosgiel-Outram road had not been made ?-Yes. W) To discharge the saH drainage on to the church land more rapidly than Tu 1 j have come if the said Mosgiel-Outram" road had not been made?-No. fe) To discharge-, on ito the said church land the drainage of thersurface and the subsoil of Findlay's land?— Pa-
«,l C «L?!!! Sl ere b t een any appreciable increase in the flow of the water through the said culvert on to the church land since 1875?—N0 It. After the said culvert and drain were made did part of the water which was from time to time brought thereby from Findlay's land on.to the church land-remain on the church land and pa i r o "&* flow on t0 the plaintiffs' land?-Yes. 18. Was any water lying on the church land when the cut was made by the Church Board in
19. Did such water come from Findlay's laha oS u fS the culvert on the road?— Partially. • , 00 V !» the effect of the cut made by the Board m 1880 to carry on to the plaintiffs' land the water then lying on the church land ?-The effect was to carry the water into Clear Creek about a cUam and a-half above Smith's boundary, Clear oi continuing its course through section 9, 21. Has the effect of the cut made by the Church Board in 1885 been to carry on to. the plaintiffs land the bulk of the water that afterwards floweu on to the church land from Findlay's land through the said culvert?— Yes. 22. Has the effect of such cut been to appreciably increase the quantity of water flowing from the church land on to the plaintiffs' land ?
.23. Has the effect of such cut been to appreciably increase the velocity of the water flowingfrom the church land on to the plaintiffs' land?-
24. Has the effect of such cut been to send thesaid water from the church land on to the plaintills laiid in a more concentrated form than before? —No.
i i ll , when John Smith purchased the land belonging to the plaintiffs, was there » stream of water from the church land flowing onto the plaintiffs land ?—Yes. 2C. If there was such a stream of water, was it formed substantially by the water flowing from Mndlay.s land through .the aforesaid culvert'—'
27. Did the plaintiff, Alexander Smith, protest against the cut made by the Church Board in 1885 be l2 re t , l . t J W T a l m S. de . ? . lf -«°. wh en?-No. 28. Did John Smith know of the said cut on the church land after it was made? If so, how lonl af^l I B ' sh( ! rt l y after the cut was made, when?' N ** after i<; Was made> If E '°'
♦iffm a . tb e enibankment erected onthe'plaiutiffs land in 1894 excluded from the said land a quantity of water that but for such embankment would have flowed on to-the said land from the cniircn land ?—i es.
31. Has the water that has flowed from Findlay s land through the said culvert and across the church, land on to the plaintiffs' land damaged the plaintiffs' land? If it has done so, what is the u su ? h n. dam ?? e T (a ) hetween June, 1891, and October 1894; (6) between October, 1894, and 10th June 1890 the date on which this action was commenced?— No. - •
32. If the plaintiffs'land has been damaged by' the said water, what part, if any, of such damage' has been occasioned-(o) by neglecting, to kelp the creek clear of obstructions ; (6) by the erection of the embankment in 1893; (c) by the erection of the embankment in 1894?-The answer to this, issue is covered by that to the previous issue
SUPREME COURT.-CICIL SITTINGS., Issue 10424, 20 September 1897
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