INJUNCTION RECUSED

Otago Daily Times, Issue 23333, 27 October 1937, Page 12

INJUNCTION RECUSED

MINE BENEATH RAILWAY : RIGHT TO DE-WATER WORKINGS '. [ <JE*kr United Press AssociatiowJ ' . * / AUCKLAND,; Oct: ; 28. A judgment that .the Railways Department was not: entitled to an injunction restraining the Kamo • Collieries, Ltd., from pumping water, put of old mine workings beneath railway property .was. issued/, by l ..Mr Justice Callan in the. Supreme. Court' to-day. "Upon the facts set out in.'their statement of claim," his Honor said, '".the plaintiffs' '(the/' Attorney-general' and his Majesty; the King)'are not, in'-my view, entitled to an injunction either by statute or at common law, and the order made ex parte is therefore rescinded." The judgment leaves the way free for the Kamo Collieries to recommence the dewatering of the workings immediately. The conlpany owns a mining property on both sides of the railway line, and on October 6 Mr Justice Reed granted the Railways Department an interim injunction restraining the company from continuing to pump water from the old workings. The department claimed that the withdrawal of the water would take away necessary support from the railway line.and lead to serious danger of its collapse. The company and its directors appeared on October 18 to ask for an order .rescinding this interim injunction, which they claimed threatened the existence of their mine. Their application was opposed by. the Crown. , J.■ , His Honor said the statement ■,. of claim alleged that the company.'-'.was acting in. breach of the statutory provisions that railway land,was entitled to support from old mine workings under it, and from water in old workings. The defendants contended that even if the allegations in the statement of claim were true, which they in part denied, yet no breach of any statutory provision was disclosed, nor anything wrongful, nor anything which created a cause of action; at common law or in equity.;' '' ,' '. ' __;' Authorities referred to ,by his Honor" showed, he said, that in each caSe the actions of a land-owner who merely drained his own land were lawful and gave his neighbour no redress. • His Honor added: "The danger to railway land arises from the fact that it has been mined. Either the railway. was laid upon land in which there had been mining, or mining took place in land that lay beneath the railway. In \ my view neither circumstance, results in a limitation of the defendants' rights to enjoy and use their adjoining propGrty" i His Honor held that even if the»purpose of the defendants was to compel the acquisition from them of the property under the Public Works Act this would not make their acts unlawful so far as common-law was concerned. The plaintiffs had not established any right to an injunction.