THE APPEAL COURT. Wellington. April. 27.

Otago Witness, Issue 2253, 6 May 1897, Page 23

THE APPEAL COURT. Wellington. Apr il . 27.

The Court of Appeal 'reinstated in the list of cases for hearing ab tha present sittings the case struck out yesterday relating to the claim by Mess c Hewitt and Hine, under the New j

Zealand Claimants O dinauca Act, to a section of land in Marlborough district.

The appeal by Catherine and Alexander Smith against the judgment given in the action brought by them against the^Otago Presbyterian Church Board of Propsrty was thea proceeded with before Justices Prendergast, Conolly, and Edwards. This is an appeal from the decision of Mr Justice Williams dismisging a motion made by Smith (appellant and plaintiff in the court below) to set aside the judgment in this action given in favour of respondent (tha Church Board) at the trial held in Djnedin before his Honor and a special jury of four. The grounds alleged by appellant are:— (l) That three of the jurors had \ a conversation with a member of the Church Board during the trial ; (2) that the judge misdirected the jury on a point of law ; and (3) , that the finding of the jury was against' the -weight of evidence. The facts were th*t in 1875 the Provincial Government made a culvert under and acro3s the Gutram road, which forma the northern boundary of section 7, Taieri district, and at the same time formed a drain leading from such culvert through parts of sections 7 and 8, church lands, leading towards appellant's land, being section 9, arid lying on a lower level. In 1885 the church board extended the drain. In 1892 the then owaer of section 9 raised objections to the work. The church boird relies upon statutory authority and acquiescence by the previous owner of section 9. On the question of influencing the jury, respondent urged that the member of the board was UDawaretnat the persons he was speaking to ware jurors, and had not taken any part in the proceeding; and did not communicate to thpinany material fact. The jury tound that the works did not appreciably increase the flow of water over appellant's land. Mr Sim (of' Dunediu) appsara for appellant and the Hon. Downie Stewart (of Dunedin) for the respondent board. The case is still unfinished.

April 28.

In the Appeal Court, in the case of Smith v. the Presbyterian Church Board, argument by Mr Sim on the part of the appellant was continued. The judge in the court below, he said, bad directed the jury thab if damage to appellant's land had been enhanced by the filling up by the erection by appellant on his own land of an embankment which had the effect of spreading water coming down towards the appellant's land over such land, instead of allowing such to pass in a concentrated form, the appellant was not entitled to recover anything in respect to such enhanced damages. Mr Sim contends that the appellant had a perfect right to erecb »n embankment, which might be regarded as nothing more than a sod fence, and cited authorities to show that a person wrongfully ssndin^ water down was responsible for the whole of the damage caused. The case was not concluded.

April 29,

Mr Downie Stewart, Tor the respondent board in One cass of Smith v the Puesby torian Cnurch Board, contended that as no relevant matter was communicated t.o the three jurora, aud that such matters as wera so commuuicated were also given ia evidence during the trial, the conversion was no ground for disturbing the verdict. He further argued that there was evidence upon which the jury could properly answer the various issues in favour of the respondents, thus seeking to show that the findings were not due to tbe conversation. Counsel relied on the delay on the par-< of plaintiff in asserting his alleged rights, aud subtracted that all landowners in the Taieri district had acquiesced iv the drainage arrangements effected between 1875 and 1892 and that the respondent board never consented lo ths execution under statutory authority of 1375 Drainaga Works. Mr Stewart contends that apart altogether from the findings of the jury (should the court act aside their findings on account of the conversation) his clients are entitled to judgment on the adtni&aion made in the court b low that neither plaintiff nor his predecessors in the title objected to the works o!: 1875. The further act or extension made by the respondent board iv 18S5 did aot increase Hip. burthsn that plaintiffs land waa already subjest to. Tbe case isnoi concluded.

April 30,

Argument in the case ot Smith v. the Otago Pi-eaby terian Church Property Tiustees was concluded in the Court of Appeal this afternoou. The court reserved its dpcision.

The caae of Andrews v. the Queen was then ; taken. This was a petition under '■ The Crown^,' Suits Act, 1881." The petitioner is a labourer , of Blenheim in the employ of tha Marlborough 1 Farmers' Co-opsrative Association. The asso- I ciation is in the habit of forwarding produce by j the Government railway from Blenheim to | Picton, the Railway department supplying I truoks and the employees of the association loading them. The department always requires j Lruckloads of chaff to be secured with tarpaulins, ! supplied by the department along with the ' trucks, and these tarpaulins have to be fastened over the load by those loading the trucks. This is j done by means of short rops3 passing through eyelets in the tarpaulin, aud knotted or spliced. • On the 2nd June, 1898, the petitioner was • loading trucks for the association, and in fixing the tarpaulin over the load caught hold of the rope, which vras not properly attached to the tarpaulin, in consequence of which ho fell from the truck and broke his leg. By his petition he '■

sought to recover damages from the Crown. The case was tried ab Blenheim on the 12th March last, before Mr Justice DanDiston and a jury. Tho jury, in answer to questions put to them, found it was the duty of the department to supply tarpauhus with ropes fib for the purpose for which the tarpaulin was being used by the petitioner ; that the rope in question was not in a reasonably fit condition ; that the department aud its servants had not taken reasonable care to have it in a fit condition ; and that thera had been j no negligence or fault on tho part of petitioner, I and awarded petitioner £250 damages. The judge entered judgment for the amount of the verdict and costs, reserving lo respondent leave ; to move in the Court of Appeal to set a3ide the ; judgment and enter a judgment of nonsuit, or [ for the defendant, or for a new trial. The respondent now moved accordingly, tbeprincipal ground bring that; there was no legal duty on 1 the part of the department to supply tarpaulin ' or rope fit for the use to which it was put by I petitioner. The court, however, (Justice 1 Dennishon, Conolly, and Bdwaidn) unanimously , hfld otherwise, and dismissed ths motion, wita costs, filesn-s Gully aud M'Callum appeared for the respondent, and Mr Jellicoe for the j petitioner.