APPEAL DISMISSED

New Zealand Herald, Volume LXXV, Issue 23104, 1 August 1938, Page 5

APPEAL DISMISSED

DAMAGE BY FLOODING DRAINS ON IE TEKO' FARMS [BY TELEGRAPH —PRESS ASSOCIATION] WELLINGTON, Saturday The Court of Appeal delivered a reserved judgment in the case of Alexander John Hopkirk, of Te Teko, farmer, versus Ellen Dawson, of Te Teko, married woman. The appellant and the respondent are owners of adjacent farms near Te Teko, Bay of Plenty. The appeal was dismissed with costs on the lowest scale as from distance. Th 6 Chief Justice, Sir Michael Myers, Mr. Justice Kennedy, Mr. Justice Callan and Mr. Justice Northcroft held that a new trial was unnecessary. Mr. Justice Blair, dissenting, was of the opinion that the appeal should bo allowed and a new trial ordered. In 1926 the appellant gave the then owners of the respondent's farm notice under the Land Drainage Act, 1908, requiring them to agree to the construction of a certain drain, which they did. After the construction of the drain the respondent bought tho farm, knowing of tho drain. Sinco then other drains were constructed and in 1933, 1931, 1935 and 1937 portion of the respondent's farm was flooded with waters from drains on the appellant's land. Alleging that the flooding was due to the wrongful act of the appellant in diverting waters on his land so that spondent sued the appellant last year they flowed on to her farm, the rein the Supreme Court at Auckland, claiming £566 damages for the loss of the use of the land, bringing it back into good pasture, fencing and other items of damage. At the trial of the action, before Mr. Justice Fair and a jury last November, His Honor entered judgment for the respondent for £lsl and costs. Hopkirk appealed for a now trial.