A CAVERSHAM LANDSLIP.

Evening Star, Issue 14687, 3 October 1911, Page 4

A CAVERSHAM LANDSLIP.

PROPERTY DAMAGED. Mr Widdowson, P.M., intimated }\x judgment this morning in a case in which the Dunedin City Corporation were joined as defendants with private owners of land in a. claim for damage caused by a landslip in June. Plaintiff was George Proudfoci Moffison (of Oamaru.. contractor), and the defendants with the City Council were John Sidey, T. K. Sidey, A. M. Sidey, and James Wright. Plaintiff is the owner of section 19, of the township of Hazelhunst, close to certain sections of the Coretoxphine Estate, which were vested in the defendants Sidey, and sold to James Wright. For the purposes of the Corstophine subdivision a sta-eet named Murray street was formed, and on or about June 28 part of the material of this street slipped through the sections bought by Wright across a right-of-way, and damaged the property of plaintiff on the other side. The statement of claim, which demanded a sum of £155 2s from any or all of the defendants, alleged that this Murray street was formed over the course of a, small stream, without provision being made for the carrying away of the water. It was alleged that the street had tire effect of banking up the water until such a quantity was held back that it ultimately dislodged and carried away a large portion of the street on to plaintiffs property. . Mr C. J. Pavne appeared for plaintiff, Mr W. C. MacGregor for the Corporation. Mr J. F. Woodhouse for Mr Sidey, and Mr A- S. Adams for Wright. In the course of his judgment Mr Widdowßon said that at the close of the hearing Mr MacGregor had moved for a nonsuit as far as, the corporation were concerned, on the ground that no cause of action had been proved. The fads so far as the corporation were concerned were that in November, 1908. the corporation assented to the subdivision of the estate upon certain conditions, one of which wae that the owners should maintain the embankments that might be found necessary in the formation of roads. In May, 1910, when the roads bad been farmed, Murray street, with others, was dedicated by transfer, and thereby became vested in the City Council. And in August of that year the" City Council accepted the sum of £SO as a release of the portion of the conditions in regard to the maintenance of theembankments. If the corporation were to be held liable malfeasance on their part would have to be shown, and in his opinion ir. had not been shown, As a matter of fact, he did not think that the statement of claim disclosed any cause of action against the corporation, so that as far as they were concerned a nonsuit would lie granted. Similarly he held that, there was no causeof action as against Wright. He had bought those sections, paying a £5 deposit on each. One of the conditions had been that he was entitled to possession upon payment of the deposit. Apart from that, it bad not been proved that Wright was in possession, much less in occupation; and, further, Mr Adams applied for a nonsuit on ihe grounds that W T right did nothing to c.'iuse the mischief complained of, that he only held under the agreement of purchase, and that the evidence showed that there was a concealed danger of which he knew nothing. There would be a nonsuit in respect of this defendant too. As far a<> the defendants Sidey were concerned. Mr Widdowson said that it was patent that the springs (the presence of which was testified to by engineers) came from under the road on defendants' property, and were caused by water from the hills higher up. Mr Allan (engineer for Mr Sidcv) said that when he was laying down 'this street at this spot the land was dry. and that, there was no sign of water. But he admitted that_ there wan some boggy land higher up in the gully. The contractor stated that when he was* constructing the road he dug certain holes in this gully, that they filled up, and that he watered his horses there. But apart from this evidence the fact was revealed that springs would be a danger to the road, and that they were likely to occur, and the condition of the country j v;«s such that it should have been a eufli- | cient indication that there was danger/j-* this sj>ot. He was of opinion dangerous to construct the- road in naiinw in which it was constructed, with- ; out proper provision for drainage, and thai j i't- was through the want of euch provision , that the (ir.inn<;o had occurred. Upon the : wlvlo of the facts and law, he must hold : -ih;it the defendants Sid»y were liable. ; Mr MacOrector suggested that the proper iVm of the i'lidgii.-ent would bo judgment for the nbi'ntiiT as against Suley. and : jnd-mwit' for the other two defendant*. . Ik, "noinfed out that the ucn-tr.t pom,* ■ hid rr>t been granted duiin,: the cas.-. ;."iu th" 1.1-'i^ ; *'■-■ <-r.°-? had di-elwrd no r."U?e Jils Wor.'-hm r.uirrd i-> in.'.-.. He ,-,. i.( 1 also thnt }<■-■'v,:r- m-vrly mti-.vaf.n-i h<uniil Inter. '. o'-i: 1 w-. re '' ; , ■<•"'■ •;_ ■'[' M>.k to the ('..rpe:;:'.!, n rr.V: -■■< • Wright. _„.