POLLUTION OF NATURAL WATERCOURSES.

Otago Witness, Issue 1160, 21 February 1874, Page 13

POLLUTION OF NATURAL WATERCOURSES.

A case of considerable importance with reference to the question of the pollution of natural watercourses by certain manufactures, was heard in the Resident Magistrate's Court on Tuesday. An information was laid by Mr James Wilson, the well-known brewer of Dunedin, setting forth that George Rendell, of the Water of Leith Valley, fellmonger, had been guilty — on the 29 bh January, 1874 —0f unlawfully polluting a certain stream known as the Water of Leith by permitting the refuse of certain animal matter— being portions of hides, skins, hoofs and other offensive matter — to flow into the said stream or watercourse. The information was laid under section 14, Bub-section 1, of the Town and Country Police Ordinance, 18(52. The wording of the section is as follows :—": — " Any person who shall commit any of the following offences shall on conviction besides paying the person aggrieved compensation for or the value of the injury done, to be assessed by the adjudicating Justices when the amount does not exceed in any case £20, be liable; to the penalty and punishment hereinafter specified for the cases respectively :— (1) Any person destroying damaging or obstructing any aqueduct dam sluice public pumjj watercourse or fountain .... shall be liable to a penalty not exceeding £10 or to imprisonment for a period not exceeding one month. " We believe that on former occasions convictions have been obtained under the section quoted ', but Mr A. C. Strode, who sat on the Bench yesterday, holds that the section does not refer to natural watercourses, and that if he gave a decision against the defendant under that section, the decision could be overturned. He accordingly dismissed the case. The following is a report of the proceedings :—: — Mr Harris, who appeared for plaintiff, stated that this case was brought by Mr Wilson, as proprietor of land in Dunedin, through which the Water of Leith runs, and also as owner of an extensive brewing establishment near the Water of Leith, from which stream, alona with other brewers, he obtained the supply of water necessary for his business. They now found it was impossible to use the water, owing to the pollution of the stream by the defendant and others in the neighbourhood, and it was absolutely necessary to take some steps to-re-strain the defendant, as well as others, from abusing the stream. About three years ago, a case similar to the present one was brought by Mr Wilson and Messrs Marshall and Copeland against a Mr Souness, who had established flax mills on the Water of Leith, and had caused a great nuisance by the use of the stream for washing flax. The witnesses examined on that occasion, proved that the water was rendered absolutely poisonous. Souness was fined, and the nuisance was then abated. The nuisance now complained of was, that defendant had been using for a considerable time a tributary of the Water of Leith for fellmongery and wool-washing purposes. A dam of sheepskins had been placed across the stream. By this means the water was rendered almost useless for brewing purposes. There were other people in the neighbournood who also polluted the Water of Leith, by using it for improper purposes. One person was in the habit of casting manure into the stream. The Magistrate remarked that he could not understand how any man could be guilty of such a wilful act. Mr Hairis stated that another person was in the habit of throwing sawdust into the Water of Leith. Some people also kept pigs, and the pig-styes also polluted the stream. James Wilson, the plaintiff, gave evidence as to the pollution of the Water of Leith by the defendant's operations. He had visited defendant's fellmongery, and found the water lin the neighbourhood quite discoloured. On the banks of the stream, there was a large q-iantity of rotting animal matter, which | woald certainly find its way into the Water | of Leith. In cross-examination, witness refused to answer a question as to whether the refuse from his own brewery did not flow ! into the Water of Leith. As His Worship ' suggested, " two blacks don't make a white, " aud witness would not object to anybody I bringing an action against himself for polluting the Water of Leith. Witness did not know whether Marshall and Copeland used the Waterworks Company's water for making beer, but he knew they had the water laid on. Witness had the Company's water laid on to his brewery, and lately he was obliged to use it for making beer owing to the bad condition of the Water of Leith. John Marshall, of the firm of Marshall and Copeland, brewers, stated that of late the Water of Leith stream had been in a very bad condition. The water was full of decomposed animal matter. He had lately visited the defendant's fellinougery, and found the water there quite polluted with refuse. A portion of the water was almost white. The air was also polluted, and the smell in the neighbourhood was like an old graveyard, or perhaps a little worse. In cross-examination, the witness stated that oven if the defendant's fellmongery was removed, the other existing nuisances would spoil the water for brewing purposes. Tney would not, however, spoil the water so quickly, The slightest particle of animal matter in the water would spoil beer. 0 wing to the pollution of the Water of Leith witness's firm had been obliged to use the Company's water for a considerable time back. They would not use the Company's water if they could use the Water of Leith, as the latter was much better for brewing. Sometimes the Company's water could not be used. Cattle feed In, the neighbourhood of the Company's re-

servoir, and when the water is low it is on that account unfit for use. Under ordinary circumstances the Water of Leith was better for brewing purposes than the Company's water.

James Nimon, Inspector of Nuisances, stated that he obtained permission from the Mayor to visit the defendant's fellmongery, situated on a tributary a short distance above the saw-mill on the Water of Leith. Witness corroborated the statements of Messrs Wilson and Marshall as to the condition of the stream. Defendant admitted to witness that he was proprietor of the fellmongery, and that Mr Duncan was his landlord.

This concluded the case for the plaintiff. Mr W. D. Stewart, who appeared for the defendant, said that he had an objection to offer, wbich he thought would at once dispose of the case. He maintained that the first subsection of section 14 applied only to artificial watercourses, and not a natural watercourse like the Water of Leith. A the other words in the subsection represented artificial constructions —for instance, an aqueduct, a pump, a sluice, a dam, or a fountain — and, as His Worship was aware, there was a very sound rule of construction laid down to the effect "that words should be interpreted by the company in whioh you find them." The view which he now submitted had been adopted in a case decided in Victoria, which case appeared to have been brought under a provision similar to that contained in the 14th section of our Town and Country Police Ordinance. He did not know whether the Victorian Act was exactly the same as our Ordinance.

The Magistrate : Our Ordinance is a transcript of the Victorian Act. Mr Stewart concluded by submitting that on account of the objection he had raised the information could not be proceeded with. Mr Harris said that if his learned friend looked into any standard law dictionary, he would find that the only signification given to " watercourse" was that of a natural and not an artificial stream of water. "Watercourse," in its primary and general signification, was something of a natural and not an artificial description. He was aware of the Victorian case referred to by Mr Stewart, and it appeared to him that that should not be taken as conclusive in this case. He believed it would be found that the Victorian Act did not apply so much to country places as the Otago Ordinance. What could be the practical use of the Ordinance in 1862 if, instead of applying to natural watercourses, it only applied to artificial streams. The Magistrate : I may say that the Victorian Act does apply to country places. I waa consulted about this Town and Country Police Ordinance when it was drawn up by Mr Branigan, and I remember that it was a transcript of the Victorian Act. Mr Harris said that Mr Branigan had also shown him a draft of the Ordinance before it was submitted to the Council, and he understood Mr Branigan to say that it was a transcript of the Victorian Act, but that he had adapted it to the younger circumstances of this Colony. It would bo a very narrow construction of the Ordinance to say that because the term "watercourse" wa3 found in connection with terms representing artificial constructions for the conveyance of water, it should be restricted to artificial watercourses.

The Mag ; strate said he had no doubt whatever as to the hardship of this case, and the hardship was one which called loudly for a remedy. There was no doubt whatever that establishments like that of the defendant should not be permitted to exist in the immediate neighbourhood of such a j stream as the Water of Leith. The hardship was a very great one, and the sooner the Legislature took steps to alter the law, or rather to add to the law on the subject, the better it would be for the public. As to the meaning of the term "watercourse," as used in the Ordinance, he had very little doubt. It was intended to meet cases with reference to fluming. When this Ordinance was passed in 1862, the Groldfields were at their height, and the word "watercourse" was put in the Ordinance to meet cases relating to fluming— to watercourses boxed in. If a conviction took place under the present information, it would be overturned without a shadow of a doubt. All the other words which occurred in the sub-section applied to something artificial, and when he first saw the information he imagined that that would be the difficulty to be overcome. He would have to dismiss the case, but he would not allow any costs. He thought that a wrong had been done, and that there should be a summary remedy for that wrong. Mr Stewart : The plaintiff seems to be particeps criminis. The Magistrate again remarked that "two blacks don't make one white"; and further, 1 it had not come out that the plaintiff did pollute the Water of Leith. If the plaintiff did pollute the stream, he was responsible in the same way to persons lower down. Of course, a brewer had no more right to pollute the stream than a fellmonger. Mr Harris remarked that his client would only have to take the case into a higher Court. The Magistrate : The defendant is doing wrong, and I would recommend him to desist. Of course, the i)laintiff has another remedy, although more complex.

We understand that the services of the Hon. R. D. Ireland, Q.C., have been retained by the defendants in the now celebrated case of White v. M 'Kellar, and that the annual certificate of the "Jolly Q.C." (as the Argua stylos Mr Ireland) has been taken out in the Supreme Court Office here in view of the future sta&f 3 of the action,