SUPREME COURT

Greymouth Evening Star, 21 July 1944, Page 2

SUPREME COURT

ACTION FOR DAMAGES.

In the Supreme Court at Greymouth, yesterday, before Mr. Justice Northcroft, the hearing was resumed in the civil action in which Hannah Harriet Eva Banks, Patrick Joseph Francis O’Regan and Herbert William Gebbie, represented by Mr. J. K. Patterson, claimed from defendants, William James Morris and Charles David Buist, represented by Mr. L. E. Morgan, the sum of £545 damages for alleged injury to land, and also sought an injunction restraining defendants from trespassing on the lands concerned, interfering with the soil, polluting Burke s Creek, which runs through the lands, and discharging water, slack coal and mine refuse on to the lands. Herbert William Gebbie, one of the plaintiffs, continuing under crossexamination by Mr. Morgan, said that the Government valuation of the Conlon estate’s interest in the property under the licence was £lO4O. There were 800 acres in all and rates were paid at the rate of £lO a year. The Land Board had not advised the estate of any cancellation of Section 77. Jack Banks, secretary of the Conlon estate since the death of Dr. Conlon and prior to that private secretary to the doctor, produced Conlon’s diary recording the history of the development of the Perfection Valley farm from 1930 until Conlon’s death. He also proved photographs of the land concerned, showing crops and the excavations. Up to the time of Conlon’s death Morris had his own paddock and was not known to put horses on Conlon’s cultivated lands. He gave evidence of seeing what he believed were Burke’s Creek mine horses on the lands. When the mine was working, the creek which flowed through the paddock was jet black with slack coal. The pasture of the paddock in which the No. 1 pit had been dug had been cut for hay every year for many years. He had not been approached for authority to take gravel from the paddock. To Mr. Morgan: There was no protest against water with slack coal flowing into the stream before the present action. James Bond Dixon, chief clerk of the Lands and Survey Department. Nelson, produced a file of correspondence between Conlon and the Land Board regarding the land. He said he had never been approached for permission for the removal of gravel. Mrs. Hannah Harriet Eva Banks, tenant of the farm, said she ran cattle and sheep on the farm, and cropped the paddocks for hay in the Winter. The paddock in which the excavations were made was the one which she used for hay. This year she cut little hay off the paddock, owing to the actions of the defendants. Her loss in hay would be about £3O. The mine horses had been grazing on her property since about Christmas time, and she had not been able to use that part of the property. The paddock now covered with slack was previously cultivated. CASE FOR DEFENCE. Opening the case for the defence, Mr. Morgan said that Morris had been anxious to get rid of the grazing licence on his coal leases because it had been a nuisance and a hindrance. There was no farm on ’he surface of the land when the coal lease was taken up. When Conlon applied for the licence the Commissioner of Crown Lands did not consult the Burke’s Creek Company, and the licence was granted. A verbal arrangement was made with Dr. Conlon that the Burke’s Creek Company could graze their horses in his paddocks. He submitted that there was nothing in the Land Act which conferred on the Land Board or the Commissioner of Crown Lands the right to grant any licence or lease which would exclude the rights of the coal lessee. He contended that the grazing rights granted were subject to the surface rights of the defendants. Mr. Morgan addressed the Court on the law issues involved for an hour and three-quarters.

Charles David Buist, manager of Burke’s Creek colliery since 1933, opened the evidence for defendants .shortly before the luncheon adjournment at 1 p.m.

Further evidence for defendants was given yesterday afternoon by William Kearns, Public Works Department operator, of Brighton, Jack McGeady, Public Works Department mechanical excavator operator, Robert Yellowlees, contractor, of Reefton, Charles Willis, coal yard manager, of Christchurch, and former secretary of the Burke’s Creek and Reefton companies; Jack Morris, engineer, of Reefton; Nathaniel Griffen, lorry driver of Reefton; David William Robertson, contractor, of Reefton, and defendant, William James Morris.

Morris, owner of Burke’s Creek Colliery, said that he purchased the mine in 1943, and decided to extend the railway to Burke’s Creek and Morrisville collieries, both of which he owned. He offered the estate £5OO to get rid of the occupation licence, which he stated included the mine horse-paddock and 800 acres of the flat surface over the coal leases. This was not accepted. Through his solicitor he received' advice that Section 77 had been cancelled. In January, 1944, ballast for the railway extension was taken from the No. 1 pit. Other pits were investigated, but were found unsuitable. The mine horses were put in the estate paddock, and the. gravel taken from that nit because he considered that the mine leases of 1921 had priority over the license of 1935, and because he understood that Section 77 had been cancelled. Announcing that he would take time to consider his decision, His Honor said that the case was one in winch the parties should try to abate the hostility which had developed between them, and adjust the matter. IN DIVORCE Muriel Beatrice Cooper (Mr. W. D. Taylor) petitioned for a dissolution of her marriage to Arnold John Coopei, on the grounds of separation. Petitioner gave evidence that she was married in Christchurch on November 26, 1940, and that she and her husband lived together for only live months. There were no children of the marriage. Towards the end ot May, 1941 her husband left home and had not returned, and she had not seen him since. She had had no maintenance from him. Frank Benjamin Lawn, father of petitioner, said that he had endeavoured to effect a reconcibation. but had been unsuccessful, and petitioner had lived with him (witness) since the separation. A decree nisi was granted to be made absolute after three months, respondent to pay petitioner’s costs on the lowest scale. Thomas Andrew Leach (Mr. W. D. Taylor, instructed by Mr. J. W. Hannan) petitioned for a dissolution of his marriage to Agnes Leach, on the ground of adultery. Petitioner gave evidence that he was married in February, 1940, and left for overseas in May, 1940. While overseas he received a letter from his wife (which letter was produced). When he returned to New Zealand in November, 1943, he found that his wife was living with another man at Wallsend. He met his wife 10 days after his return, and she refused to return to live with him. He had not seen her since. Thomas Kilkelly, miner, of Wallsend. gave evidence that petitioner’s wife was living with a man named Arnold Varcoe at Wallsend. They

had been living together for 18 months, and Varcoe had introduced petitioner’s wife to witness as his (Varcoe’s) wife. A decree nisi was granted, to be' made absolute after three months, co-respondent to pay petitioner’s costs on the lowest scale.

In the case of Margaret Greaney (Mr. AV. D. Taylor, instructed by Mr. Hannan) v. David Burke Greaney, petitioner was granted a decree absolute, and an order was made that petitioner have custody of the children of the marriage. In the petition of Leslie Wilton Russ (Mr. W. D. Taylor, instructed by Mr. Hannan) v. Bertha Mary Russ, a decree absolute was granted, and an order was made for petitioner to have permanent custody of the three younger children of the marriage. Sidney Stewart (Mr. W. D. Taylor, instructed by Mr. Hannan) was granted a decree absolute from Doreen Mary Stewart. An order was made by consent for respondent to have permanent custody of the child, Virginia Stewart, of the marriage, and for petitioner to pay to respondent by way of permanent maintenance £lO4 a year, by calendar monthly instalments. A further order was made by consent for petitioner to pay respondent £7/7/- in respect of her costs.