COMPENSATION COURT.

Otago Daily Times, Issue 9390, 1 April 1892, Page 4

COMPENSATION COURT.

Thursday, March 31. (Before his Honor Mr Justice AVilliams ) Jo&L°iU^^^^ MrF. R, Chapman and Mr J. Hosking for tho examined :-Malcolm M'Kella/toanageAor R Campbell and Sons at Otekaike), James Tavlor (farmer, Awamoko), - and Robert Hay (civTl engineer, recalled). y wlyu A number of documents, plans, photographs atnoon!' 0 ' Theplaintiffs «•*> wascloTed Sir R. Stout, in opening the case for the respondent, said he should show first what thi case was that Mr Borton had against the Crown The sections of the act had been already referred to under which the proclamation had b e |n S edi7 SH eCtT S and 155 of the Act of ltoO-aud the point was this: the latter fart of section 154 said "such proc ma tion shall describe a day on which them. shall take effect, being not less than !X) days from the date of the publication thereof." The wo: clamation therefore could not take effect until 90 days after publication, and publication was in Jlarch. His learned friends relied upou section <5 tcttt &J °f-- 1888' ,ut-t he submitted UthatThat section did not repeal the prior section as to the &«i„ 0f fti e takm? eflL ect of the Proclamation! The learned counsel understood that the claimant wanted to contend that if the damage occurred after the Gazette proclamation and before the proclamation tookeffect, that was from March to June hewouldhavearighttoclaimdamages. Even however, if that were so there was no proof of damage between March and June, and no proof even of mining. Then he would ask the Court how it would proceed to consider the question of damage o^f-ffW, 65 of the? ct of lm- As to that tfie ?,w dt ff hat f ,,from and after such proclamation taking effect -so that that practically excluded the damage before June-"all personsbeingowners of or having any lesser estate in laud through in or past which any watercourse may flow " It could not be contended that this gave a riglit to a person who might have land 10 miles off the stream* the damage could on y be estimated as far as it affected land through or by which the stream S:lrti-, 1 „r1l ISi' h° sub'*"tte<l was in accordance with English law on the authority of cases cited. The claim must be limited to those sections of land which the Crown sold fronting the river, and part of the land in respect of which damage was claimed was separated from other portions of land and from t h e river by a road. The claimant, he submitted had certainly no riparian rights respecting the thousand acres for which damages were claimed and for land hundreds of feet above the level of the river. The test was: Had section 4 a water frontage? He submitted it had not, and, therefore, it could not be considered in dealing with this question. Then on the original Crown grant the description was not bounded by the Maerewhenua river" but bounded by Crown land"; therefore so tar as that was concerned, the claimant had lost no water rights. Another point was that the claimant could uot be entitled to any damage for fouling the water It was clear that a prescription of 20 years iv fouling a stream prevented the landlord from sum» persons who fouled the stream, or from getting an injunction for that purpose. That was clearly laid down in various cases. It would be proved that miners with the same water races had fouled the stream for 23 or 24 years. The claimant had submitted to this injury for all that period There had been a case stated for the opinion of the .supreme Court between Borton and Howe and it was held that Howe had no riglit to put tailings m the river; but that was simply a decision on a point of law m a special case, no injunction was issued, and the river went on as before The present claimant not only submitted to this, but said that if they would allow him six weeks in which to wash his sheep he would make no obiection to the miner polluting the stream for the remamderof the year and even this request was nfH!»n n Slr Seql.e-IJtly-. So far as the question of the pollution of the stream was concerned the learned counsel submitted that the claimant obviously could not claim for water rights for any land save that fronting the stream; second v that he could not claim for lands as fronting the stream if Crown lands intervened; and the description was that this land was bounded by Crown land and not by the river, hence there must have been some portion of the river bank reserved by the Crown ; and thirdly, that there had been a prescriptive right acquired by miners to pollute tins stream, and against that right no claim could be established. Then the other question would be as to how far the pollution attected the question of overflow, and he learned counsel) submitted that claimant would be estopped from claiming anything for overflow because he had allowed the river to be interfered with Another point was tbis: How was the court to deal with the question of compensation at nil. iNoue of c aimant's witnesses had appreached that question from the proper point of view It was not like a case of obtaining land for a railway. In such a case the land was taken and the party whose lauu was taken had a right to claim actual value and severance damage. There he actually lost the land and the severance took place at once, and he had a right to get compensation at once. But in the present case suimolimit were held that the Crown had to' pafsonil damage for injury to claimant's land, they had no right to pay it down at once. His Honor : Yes, of course. Supposing I were satisfied thai mining operations would in 10 years destroy the and to tlie extent of LIOOO-LIOOO wnn'] nn,? kV Je, t0° mV cl. t0I"*'- Sonic allowance not happen for 14 years, and therefore" the 14 years occupation would have to be deducted from the price of the land. As to the extent of tie injury alleged the evidence of Mr Brydone, Mr Taylor, Mr 5 kc lar, and Jlr Nicolls was this • that practically the portion to be considered was £h°'f stead block an 1 paddocks, that wa the block of land included m tlie property tax papers as sections 9 to 12 and IS and 20-altogetheroSs T° S. I( *f chuUi -S |rom that the terrace lad abont 190 acres, and there would be left, say, 500 acres as the land that was going to be injured And what was the value of this blSck ? Th* court could not question the property tax value md that for the whole (JSS acres L 4440 Thit would be something about 1.0 15s per acre altogether for bin dings and all, and thi utmost fo" s^-r ld not exceed th° lg iss p- »™

■His Honor remarked that that could be hardly nght, even ou Sir Robert's own assumption. There were no buildings on the excluded part Sir Robert Stout replied that that was so ; 'but ho was still right, because Jlr Brydone, one of claimant s own witnesses, had valued that part of the land with the buildings upon it at LS or L 9 per acre and the value on the hill where there were no buildings was about LG per acre ; and if they took it at Lb per acre for the area affected, and deducted the 190 acres referred to, that would leave less than L3OOO for the whole of the remaining 500 acres., lhat was the utmost value that could be claimed even in view of prospective injury. And further, what was tho state of the land now supposing there was no more mining ? He submitted that the evidence of Mr Brydone,

tSvM 8' Mr Gardiner, and Mr less- .wW*™* t he land was utterly valuenininet« Tt™ n(£ Wolf h L1 an acre'even if SSI ™«™ Stopped- TW had been told SSS JSS to-w^ ~£&S the enormous quantity of silt cY-H _ showed that .the 'silt diS not come &from the mining since the issue of the proclamatio^ and consequently the damage did not -.-.^ . ' anything the Crown had Tone If ther °w £° m no proclamation the damage wouldfefen 4 ?S at a5 I. w? s- rU be evidence was correct ft followed that even if the mining ceased -now +l!_ land was ruined. It could not &H a s coJd time. And they were told that the bu ldings «^re l7t e}%f' Practically, then, so far as the 500 2cres and the buildings were concerned the damage had been done, and it was not right to claim^om the Grown at all. One witness had said that he would th s gwaev° St!iat ait" f°r "' ai, d another putTn tnis way. that it was worth nothing unless to sell to somebody whom he met IfTil wis -.one a 1'??% t;?T!r ctA ved- a 1 '??S c coul<i bo claimed' A#ahi thf c^n_ti^l heremi«d D?P that nineTnth "o/tl^stuff^^^ W°Uld f SCe tlie minine- -if- nil t+ ~T t not come from just as, much injury done where there had betn no mining. He would show that acres had .en destroyed in the Otekaike and in theOtSake and that this was going on the same way in all shinSe rivers The cause was the enormous slins tlfat were brought down The breaking away o^ the shingle banks was what was causinl t&Lmi-Te and the result in the Maerewhenua wouldhave Borton's homestead. The homestead had narrowed the river to about 150 ft wide. The river could not get th.ough there. The stress of the water at that point was Borton's own act and he must have known in 1801 the danger ofdo?™this The evidence that would be called on behalf of the Crown waste this effect: It would show that there was mining in operation there since 1868 and the same people had been mining there ali the time It would show that the stu? from the Xff nf» C ™S] here T 3 not the iTrtof stuff as came down, from other mines say at dow^'bnt ethat°t^ a% bif T aS an „t,ff',_ji ' "J. 18 a* Maerewhenua was soft tlT^'ni d the wai h small luartz boulders- also seven tla^ PerCentage of *&» stuff, say^ perhaps AValtakTriveV^d^rr^ in,to a"d doZthl "fW ?£■• and that therefore the mininehad not had anything like the injurious effect whiJ-h the other side set un haraii-t. fh» A % I • softJwascarried away and n^d^ited^Part'ol it might be deposited, he admHted 'but that wonM 'vf exce.ed.^ly small in qSanMty It J™ show what other rivers in the Waitaki I*-,^ had done when in flood-hundreds of acrS 2S^SS&e«gr*F enormous slips in this river It wo^ld show «S_? mining or no mining whit Itf* vr- ji *??• Bjydone had predictef' would happe^viz^that this bit of land would go away. The 150 ft"at tht plantation was too nar!ow. It wouldalso show that the mining, instead of increasing was decreasing. Onegentleman who knew thelround would say that there were now only onelfr two Ssaj M TKf-fca.»li3 with confidence that after it was beard the^ourt rn Übiv o onclude no could be sK to have accrued, except of an infinitesimil TheTama'^ Zd^i. Hf of ? he me damage had all been done before the nroclamat.on and anything that had been doneTince decree 0* S it* the app?ec abll «F -J!! 1"116 so> he submitted with confidence that the claimant was not entitled to any damages, save of a nominal character. y ihe following witnesses were then called for the respondent :-James Nicolson (draughtsman) Offl *? gander Johnstone (clerkln Land Office) Alexander H. Chapman (farmer." GeZe %«), Aiirie^'* 10™ nn%SMKK^a brfbW 6 °'Cl°Ck