Thursday, July 2.

Otago Witness, Issue 2210, 9 July 1896, Page 20

Thursday, July 2.

TABORN V, BRYDIE. Claim £100 as damages alleged to be caused to the plaintiff's land through the water in the Clark 8 Flat creek carrying down, as the result of the defendant's action, large quantities of earth, stones, gravel, and sand from the defendant's land on to the plaintiff's land, and foe an injunction. Mr F. R. Chapman, with h>ui Mr Finlayson, -appeared ou behalf of tha plaintiff, Jams'lYibozn, farmer, Tuapeka East, and Mr Sim (instructed by Mr DalzMl) appaared on behalf of the defendant, Alexander Brydie, farmer, Tuapska E;ut. The statement of claim set out that the plaintiff was possessed of 33 acres and 14 poles, more or less, Bituatad at Clark's JFkt, through which a watercourse called the Clark's Flat creek flowed, and of a dwelling house, farm building?, fruit and vegetable garden, which said house and luud the plaintiff had occupied for a period of about 30 years, and that the defendant was possessed of sections situated higher up the watercourse ; that one Wright Lowe, from whom tho defendant purchased his sections of land, in the years 1887 and 1863 and again in tho year 1891 straightened the course of the creek in the higher sections, and that the defendant in the years 1593 and 1891 cleaned out portion of the watercourse aud thus increased tho velocity of the current ; that ainco the 20th June 1894, aud in consequence of the aot3 of Wright Lowe aud the defendant, the water in the watercourse had carried down large quantities of earth, stone', gravel, and sand from the defendant's land on to the plaintiff's land and thereby filled up the bed of th« watercourse there and caused the water to overflow and submerge part of plaintiff's land ; that on the 16th May 1894 the plaintiff commenced an action against the defendant in the Magistrate's Court at Lawrence, chiming £20 damages for injrmes caused during the months of November 1893 and 1894 r and recovered £5 ss, with costs" ; and that tHe plaintiff, by notice on the 20th June 1894, warned the defendant to discontinue interfering with tha watercourse, and to take such precautions for the future by erecting protective \vork3, &c, as would prevent a recurrence of the damage to the plaintiff's lind, but the defendant still continued, and threatened to continue to allow the water running in the watercourse to carry down large quantities of earth, stones, gravel, and sand. The material portion of tho statement of defence was to the effect that the defendant admitted that in the years 1893 and 1894 he cleaned out a portion of the watercourse, that he denied that he was responsible forthe acts of Wright Lowe, and said that if tho plaintiff had suffered auy damage such damage was not the result of his (the defendant's) acts, and that since the ioth May 1894 no earth, stones, gravel, or sand had been carried by tho watercourse from his land to the plainiiffs land. The defendant also taid that if the plaintiff had suffered any damaged as alleged, such damage had bean caused by the plaintiff's own act in altering the course of the watercourse where it vm through his own property. The defendaut further said that he relied on -the provisions of the statute 2 and 3, William IV, c7l, so far as the carrying down of earth, stone*, gravel, and sand by the watercourse to the plaintiff's land was the result of what was done by Wright Lowe in 1867 and 1868 in altering the course of the watercourse and of what had been done since in keeping the watercourse cleaned out. Mr Chapman, in opening the case, said that Mr Taborn, who was a farmer in the Tuapeka district, sued Mr Brydie, the owner of the neighbouring' farm, for darhago done by flood water and debris coming down from his laud, which lay higher up the Clark's Flat creek. The plaintiff claimed damages for what would be prored as having actually occurred, and claimed an injunction to restrain a continuance of tha grievance of which he complained. The pleadings showed that Mr Taborn had occupied his farm for about 30 years, and that the defendant had purchased from Mr Wright Lowe in 1882 sections of land higher up the creek, which passed through both properties. The creek was originally a winding stream coming dowa the hills, with a sharper fall in tbo defendant's land than in tk'e plaintiffs. Something wa3 done to the creek in the wuy of altering aud straightening it at an early date by the previous owner of the defendant's land and at a comparatively r«ctmt date, in 1891, before tbe defendant became the ovrntr of his land, Mr Lowe further interfered with tho creek. If there had been any prejudicial eff-ct from what had been done in the early times it was so slight that the pUintiff had had no occasion to complain of it, and if there had bsen any effect a conditiou of repose had long since been reached, but in 1891 Mr Lowe interfered with ths creak by deepening it in two places, both above the plaintiff's land. H!b Honor : Deepening would hsrdly increase the flqw of tho water. It would rather diminish Mr Chapman said what Mr Lowe had done was to widen and deepen the creek in the sense of taking out obstructions that cheeked its velocity. What he did was to concentrate thi water more in time of flood. Tho effect of ths widening and deepening was to disturb a natural condition and to tend to erosion both in the bottom and at the Bides. As a matter of fact what was done by Mr Lowe in 1891 wbs a pretty extensive operationhe really straighted the creek by cutting an entirely new channel for it. In 1893 and 1894 the defendant himself, having come into possession in the meantime, still further straightened aud cut out the creek. Ho altered it by making it carry tho water with increased velocity, and thus ha increased its tearinct and ripping power through his own hand. This went on for a time, and dArmtge began to accrue to plaintiff. What the plaintiff would say was shortly thw : thatiup to quite recently— quite within the last four 'years or even lc3S -no darnßge to complain of had accrued to him, but the whole damage of which ho complained had occurred in the lust ft.w years. In 1804 he commenced an action in the Magistrate's Court at Lawrence, and he proved in that action that actual pecuniary damage had accrued to him, and lie recovered somo damages. • What he proved in that case was that he had been put^ to expense in taking out of ths creek ou his land a large amount of gravel that h«d come down from the defendant's land. He received compansatlon for that, but practically speaking, ! subject to a certain reservation, matters had reI mained in the same position since. The amount the plaintiff had recovered might be taken as having j comnensatad him for the, damage that had

accrued at that date, but since then be had had to go on continually carting out loads of gravel from the creek In his land, This gravel haa beeft coming down in floods and freshes, find thjj plaintiff would prove that somewhere about SIS loads of it had been taken out of the creek. 3?her9' was no doubt that the plaintiff's taking of ftfvti out of the creek as it accumulated bad m a sense greatly benefited the defendant— that was to say, it had kept the creek, to some extent ac least, in a condition to carry its water?, aiyj It had prevented ft worse state of things arising in thd plaintiff's land than had in fact arisen; but tW gravel had accumulated iv tha creek to such an extent" as to stop the flow of water on the lowet side of the plaintiff's laud, and to flood ate imjL when floods came, causing It to h$ socjdfsw *na mi* venttag him from cropping it, and thot noiwltU. standing the fact that the plaintiff hwlpntMol-self-to great exponae in getting out thia gravel sb as to keep .tho creek, to some extent at leash relieved. Notice was served on the defendant on the 20ch Juno 1891 warning him to discontinue inteiferiug with the watercourse, Vyhlph was sending down gravel, sand, stones, and silt, ana also to take Buch precautions for the future as would prevent a recurrence of the damage to the plaintiff's land. After that notlce.the defendant did nothing, but after the writ in this action was served lie commenced something which he -would profess was a protective measure, but his Honor would bo told by witnessesthatit waswhollyinadequate. Learned counsel understood that what had b;en done was that the defendant had put in some rough dams or weiH, which were intended to prevent the flow of gravel down his *>art of the creek, but witnesses would t«ll his Honor that gravel must be passing through, under, or over these dams, and that the dams dirt not prevent the creek from eroding its banks and sending gravel down. His Honor : If this creek is like most of the gravel creeks, when you once meddle with its bed it is almost impossible tb prevent gravel- cornipg down unless you have made really artificial banks and an artificial bottom for tho whole length. Mr Chapman Bftid that, no doubt, was xo. If a man choso to make a channel like that ho ought to pitch it or do something of that kiud. No doubt the defendant had improved his own laud, but, as was generally tho case, his improvement of his land was at tho expense of every parson lower down who bad not a similar fall aad a similar get-away. The fall was greater in tho defendant's land, but flattened aa the creek got down to the plaintiff's land, and the consequence was that the plaintiff had to receive tho debris from the defendant's land. Norman Melville KirkcMdy (surveyor), James Taborn (farmer at Clark's Flat), William Smaill (farmer, but form-srly road engineer for the Provincial Government and Tuapeka County Council), James Taborn, jun. (son of the plaintiff), John Robertson (farmer at Clark's Jflat). Margaret Tabom (daughter of the plaiutiff), and William Cvaik (labourer) gave evidence in support of tha plaintiff's c?se, which was not concluded when The court rose at 5.15 p.m.