Supreme Court, Nelson.

Marlborough Express, Volume V, Issue 244, 13 August 1870, Page 4

Supreme Court, Nelson.

[Before His Honor Mr Justice Richmond and a Special Jury.] Monday, August 8. ALLEGED IMPBOPEK ENTBY ON AND FLOODING OF LAND.—JOHN ATWOOD V. T. KEDWOOD, AND C. ELLIOTT, JTJN, This was an action brought by Mr John Attwood against Mr Thomas Kedwood and Charles Elliott, jun. all of Marlborough, for wrongfully entering upon sections 40 and’ 42, in the district of Opawa, in the province of Marlborough, and cutting a ditch thereon and also for cutting a ditch on the adjoin-

ing sections 44 and 45, whereby the plaintiff’s land had become flooded and damaged. The damages were laid at £SOO. The pleas of the defendant stated that £5 was paid into Court as satisfaction for entering and wrongfully digging the ditch or watercourse referred to. For the rest they deny that they committed the grievances referred to. They also allege that sections 44 and 45 are on a higher level than the plaintiff’s sections, and that the natural drainage flowed and ought to flow on to the lands of the plaintiff, which are subject to receive such natural drainage. The ditch, it was stated, was dug before the defendants became possessed of sections 44 and 45 ; the former possessors had dug a ditch thereon, extending over the lands of the plaintiff, as specified; and all that the defendant, Thomas Redwood, had done, was to clear out that watercourse, which had become obstructed with weeds, and insufficient to carry off the natural drainage; and this clearing was done with the consent of one Holdsworth, owner of a part of section 44. There was no grievance caused to the plaintiff by such watercourses, as it does not discharge more than the natural drainage the plaintiff’s lands are subject to receive. The following were the plaintiff’s main issues;

1. Did the defendant break and enter the lands of the plaintiff, and wrongfully dig a ditch, or watercourse upon the said lands, as in the plaintiff’s declaration alleged ? ' 2. Did the defendant dig a ditch or watercourse, in, upon, or adjoining to sections 44 and 45, on the plan of the district of Opawa, and thereby disturb plaintiff’s use and enjoyment of his lands ? 3. To what damages (if any) is the plaintiff entitled ? The following were the defendants’ issues : ; , * 1. Is the £5 lodged in Court, sufficient satisfaction for entering on and breaking and digging a ditch on the plaintiff’s ground ? 2. Are sections 44 and 45 adjoining to and on a higher level than plaintiff’s land ? 3. Does the natural drainage of 44 and 45 of right flow on to plaintiff’s lands, and are these subject to receive such natural drainage ? 4. Were the defendants justified in cleansing the ditch or watercourse mentioned in the 4th plea, being part of the ditch mentioned in the declaration ?

5. Did the said ditch, at the time of the committing of the alleged grievances, conduct a greater amount of drainage on to the plaintiff’s land than would have been carried or discharged if the said ditch had not been made, or than the lands of the plaintiff were subject to receive ; or did the said ditch cause the lands of the plaintiff to bo flooded, or the soil or crops thereon destroyed ?

6. Did the drainage from the ditch, mentioned in the plea of defendant (Thomas Eedwood), at the time last aforesaid, find its way to the said lands of the plaintiff, or did the said ditch cause the lands of the plaintiff to be overflowed, or the crops thereon destroyed ? Mr Conolly, Mr A. Pitt, and Mr H. Pitt appeared for the plaintiff; Mr Allen (of Wellington), Mr A. Adams, Mr Pell, and Mr Nelson, appeared for the defendants. The Special Jury consisted of Messrs A. J. Richmond (foreman), Blackett, C. Beatson, Lowe, J. T. Mackay, A. Otterson, Buckridge, W. H. Turner, Saxton, Stavert, Hunter, Brown, and P. Edwards, J. S. Bruce, a surveyor, was the first witness examined for the plaintiff, and his evidence went to prove that the fall down sections 44 and 45 was scarcely perceptible ; whilst sections 40 and 42, when once the water had accumulated on them, could not be drained except at great expense ; ,and his scientific evidence went to show that the proper way of draining the land was down Eedwood street into the Opawa river, since rivers were recognised, both in science and in common sense, to represent the main arteries for drainage purposes. J. Atwood, the plaintiff, deposed that, before the drains complained of were cut, he was able to graze far more cattle on his land 'than he could now, the land having become wet through the drains in question. His cattle had been impounded by Mr Eedwood for trespassing on his land, and he had been forced by Mr Eedwood to fence,, since which he had to send, away part of his cattle. To the best of his knowledge, defendants had not offered to refer the case to arbitration. . \

George Henry Manssen had been for some time in the employ of* Mr Atwood. He knew his sections, and 'those of adjoining owners. He remembered the drain cut through Mr Elliott’s land in 1866 or 1867. He had stopped the drain tip by order of Mr Atwood, but it had been, opened again. Before' this drain was made, j Mr Atwood’s land was only flooded at the time of high floods, whereas now it is always covered with water ; and the land affords but little

• Cijj U'H 4 i M 4* grazing, whilo-fomerly it carried a good many heatt ofJcatfcle; « Thomas Gledhill, in the service of Mr Atwood, deposed having li-vkl ■with plaintiff five/or six years; Thei drains'cut byude-. fenclant brought down nnbre water on plaintiffs land then formerly came’ over it. The land was always swampy in -winter time, bj.it not so much as now, In strong ifloods,- ■ water would come over (the land ; whether the defendant’s drain .extended ,or not. There was 'lrtlant beyond 1 Mb' Atwood’s land, which threw the -water,back,; but not much.' ’ - The Court adjourned until,the .following morning.. -vhhh , : on; ■ ii h. r,.-. i! I li ha Tuesday; ‘ August’ 9. j ■ T.' Maddoeks deposed that the ditch cut by ; ElUottrdUlainotaCora.c within-twenty or thirty;*chains .of the* swamp ! on plaintiffs land.’*iiHe; ; lifffi‘ landj in which ’ was fofjhoiiy a hvgdiin, but, übw_‘j‘t afforded gopd?ph§‘turage.,', , _ H .,' ~ u ,, r ... This, clospci.the casp -for; the,plaiuii|x., A;, I, Bobson-y v, surveyor^. was called tor .the j defence. ; This* witness - was * examined at great-Tength 11 and his evidence Was'important, IMr Hpßs.qn *, ha| %no the ground intimately -for..years, ; and hud, examined it before, it; was sold; to:any<of theipresent pro(Hh had been •employed to lay off roads,! and I, hhd. raadb; him self ,thoroughly acquainted i neural draiqogp.pf the country. lie "considered theidrains cut by s defendants hadiin noway -injured tlie,p 1 aintiff’s; landy -but"'that the plaintiff had himself caused hxnd ( i to u be 'flobded hy ob- 1 water;with: dams, .winch,, Tbps' drains, wiije havetcarried offynand noi.raore water would, have 5 been’' thrown ! on"sections'4o and 42’, belonging to the plaintiff, than thby- would naturglly > re'6qiye. yhloods" ‘also ‘ had been ? m oiuhh qiibp tofla te| yeayS-agO.,.; An-// ii-wh-.l -it! vims v. .GiiT;Western, 1 :; surveyor, thouvidence iof the last-witness : ds’far as- heknew the country. 1 “ ' The Cdui-t'tHeh^diournbfft 1 ExMhfer. Sintj'e ’ tM^abo, fq tyas, in/type,, .\yq.'learn from; private.sources that itbei-xemaipder pf, the evidencebwas -gone sand the. Judgb 1 concl'udbd bis' SuraUling up about half past six,bn Wbdhbsday‘evening, wlibn jthe £ jury retired* T i;etjuy,nipg jffit&.tp.ouyt diter half an,hour’s absencejiiwith [atverdict, find- • ingffor plain tSff oiv-the > first issue j ;but that the : sifm jll 6f ’iE’o pliid in 1 Court'by'defenclant was" sufficient to ’coyer the damage in regard to that isquq. ~',;Thq jury 'found[. for ,the defendants on. Jail-, tire .other Issues. ■ These findings,'in fact amount to atverdict for defendants. . “ ’" *' , .... ’ ..