SUPREME COURT.

Lyttelton Times, Volume XCIX, Issue 11559, 21 April 1898, Page 6

SUPREME COURT.

IN BANCO. Wednesday, April 20. (Before his Honor Mr Justice Denniston.) B. HOPKINS V. W. H. CLARK. This was a claim for £SOO damages, brought by plaintiff against the defendant, who is a woolscourer, for damage caused by the pollution of the Ohoka Creek by defendant in the carrying on of his business. ’.',l The case had previously been heard, and his Honor, in giving judgment, said inter alia that injury meant the infringement of a legal right, that was the right to have the flow of the . stream in , its natural purity. The Court found that defendant did pollute the water, and that plaintiff had failed to prove any actual substantial damage outside the interference with his legal rights. Judgment was given for plaintiff for .£lO damages, costs bn the middle scale as on the £SOO claimed, disbursements and -witnesses’ expenses. Mr Beswick for plaintiff, Mr Joynt for defendant. 7„ • BE GEbRGB BEATTY,• DECEASED. ~-J Ward and. :Co, -Limited, v. Kent and others,—Onftte Application, of Mr Lane, who appOkrdcl ‘fot the plaintiffs, hearing was deferred, Mr Cowlishaw, contra, making no objection. VINCENT V. YORK. This was an action brought by William Vincent, of Heathstock, sheep farmer, against Thomas York, of Waikari, sheep farmer, to maintain an alleged fencing right. The statement of claim and evidence taken have already been published. His Honor now heard legal argument in the case. Mr Stringer appeared for the plaintiff, and Mr Wilding for the defendant. Mr Stringer submitted that the agreement was made under Section 20 of the Fencing Act, 1881. If the agreement was not under this Act, Mr Vincent would have been in the position of being liable to remove the fence at any moment. Mr Wilding said that the Fencing Act had no application in the matter, and that such a right as was claimed by plaintiff must be granted by deed. The parties stood merely in the position of licensor and licensee, and the land was held under which was revocable, even though valuable consideration had passed. He further claimed, that the plaintiff and defendant were hot adjoining owners, as their properties were divided by the Waipara Eiver, the bed of which was Crown land, and which was from one to five chains in width. He further claimed that defendant’s land transfer title was conclusive, apart from the other points he had raised. In reply Mr Stringer submitted that Section 20' of the Fencing Act contemplated an amicable arrangement between parties, failing which a Magistrate’s decision could be obtained; but that the same consequences followed such an agreement as would have followed a magisterial decision. Both parties must have had the Fencing Act in contemplation at the time of the agreement. He .quoted Borton v. Howe to show that the common law of England gave ownership to riparian proprietors as far as the middle of the stream. Mr Stringer further contended that the fact of a stream existing between two properties did not prevent contiguity within the meaning of the Act. He quoted Storey v. Casey, 3 N.Z.L.E., Supreme Court, 284, to show that Mr York was estopped. With regard to the point raised under the Land Transfer Act, his friend’s title was not impugned in any way. His Honor reserved his decision.