Supreme Court -Civil Sittings.

Otago Witness, Issue 1784, 30 January 1886, Page 23

Supreme Court -Civil Sittings.

Fbiday, January 22. (Before his Honor Mr Justice Williams.) MILLER V. THE TAIERI COUNTY COUNCIL AND OUTKAM ROAD BOABD. Claim, £400, damages caused by the diversion of water, whereby the plaintiff's property was injured. The declaration set forth that in 1877 the Outram Road Board made certain cuts or passages in the Maungatua district ; that thereby the waters of a stream or watercourse formerly flowing into the Taieri River were diverted from their natural course, and in consequence of such diversion the waters had flowed over and upon the plaintiff's land, injuring his land and crops. It' was further alleged that the plaintiff had applied to the Outram Road Board and to the Taieri County Council to close the said cuts,. and to prevent the flow of the water upon the • land of the plaintiff, but they had refused and neglected to do so. Mr Denniston, with him Mr Woodhouse, for the plaintiff ; Mr F. R. Chapman for the Taieri County Council ; Mr Chapman, with him Mr J. Macgregor, for the Outram Road Board. Mr Denniston, in opening the case, said that it was an action brought by a settler of the Taieri, claiming damages and an injunction against two local bodies which might be said to have the control of the district, and it practically asked the Court to decide whether or not the present authorities were justified in throwing a large quantity of flood, surface, and drainage water into the Lee Stream, and thence to the Taieri a long way down, instead of, as the plaintiff said should be done, carrying it in its natural course direct to the Taieri at a much higher place on the river. The plaintiff said that the one watercourse was and ought to be entirely distinct from the other, and that the interference with what might appear to be only a lilliputiau watershed, caused the diversion which was complained of, and carried the whole of the drainage of what was an old lake into the plaintiff's district, the result being that it was now impossible to drain the district without going to an enormous expenditure. Hence an injunction wasrequired. Theplaintiff said thatthe effect at flood time of so directing aud carrying the water was to throw upon his district, which was so level as to be almost entirely flat, a burden which it was entirely unable to bear, the district being so flat and the stream so sluggish that drainage was exceedingly expensive, aud it ■was positively ruinous to have to take off more than the amount of water which ought properly to flow over the district. It would be shown conclusively that a cut known as " Henwood's cut " brought the water in a certain direction, and that it was a distinct cut through an obvious rise. The effect of that cut was to bring the ■water through the plaintiff's district down to the Lee Stream, and then by the Lee Stream down to the Taieri, instead of letting it run to the Taieri direct. The learned counsel understood that this cut had been made when the district in which plaintiff lived was not peopled or cultivated to anything like the same extent as the surrounding country. It was then thought to be a safe and easy process to throw the water into the adjacent- swampy ground, taking it from the more cultivated districts ; and it was only on the district becoming populous and declining to accept that view of the situation that the present proceedings had been taken. The cut known as " Brown's cut " was made in 1864 or 1865, and the effect of that was not to bring the water where it now was, but upon sections 46 and 47, carrying it far from the plaintiff's land. The damage now complained of was caused when the first ditches were made by the Road Board, to carry water along by the roadside down to the Lee Stream. In making those ditches the Road Board did acts which, so far as the plaintiff was concerned, were damaging. Then there was the later and more definite deepening of this whole system of drainage, the enlarging of Brown's[cut in 1870, and the later and more elaborate and carefully prepared plan, by which the Road Board may be said to have adopted this system of throwing water upon the plaintiff's land, by the deepening of the drains so late as 1877 or 1878. If these facts and damage to Miller in consequence were established, he submitted they would then have made good their cause of action. As to the question of liability, that would perhaps be reserved until the facts had been ascertained. There were two conflicting local bodies, and there might be some difficulty in defining the rights of parties. The plaintiff said that both were liable, or that at all events an injunction against either must have the effect of remedying the injury complained of. It was not very material to the plaintiff which was held to be liable, but he said that both were. As a matter of fact, the learned counsel believed, the County Council had done nothing, the drains having been entirely under the control of the Road Board, and if the County Council were liable it would be on a statutory liability. Their case against the County Council was that a quantity of water was being diverted upon their lands by works which by statute were under the control of the Council; and against the Road Board their case was that the Board were the parties who had done the work, that they had made the cuts and drains which had carried the water. The Road Board had not only actively interfered in the matter by letting contracts, but had asserted the right to control this system of drainage by taking criminal proceedings against a number of settlers who had attempted to stop it as a nuisance. It would be found that a great many facts were hardly in dispute, as many of them would be established by records and others by measurements. Probably under these circumstances, and looking at the time of the sitting, it would be as well to take the evidence on both sides, and then the argument could be taken at a later date. The following witnesses were called for the plaintiff: — Matthew Begg, William Brown, James Kirk, Thomas Inwood, J. Stevenson, John Milne, David Caruthers, George Thomson, and D. MUler. Mr Chapman, for the defendant, called James Allen and Peter Grant. At this stage of the proceedings the case was adjourned until 10.30 the following morning. The Court rose at 5 p.m. Saturday, January 23. This case was resumed, and on the evidence for the defence being concluded (as was previously understood would be the case), the argument was not proceeded with, owing to the lateness of the sitting, but was adjourned sine die. The Court rose at 12.30 p.m.

Mr William Tomlinson, master of the Auckland College, and son-in-law of the late Samuel Kingdon, of Auckland, went out on the 21st with a double-barrelled gun intending to shoot gulls. He was accompanied by his little son, aged 12, and in climbing up a hill on the Wakapuaka road slipped, when the gun (exploded, and the shot from the charge entered his body.