APPEAL DISMISSED

Poverty Bay Herald, Volume LXV, Issue 19700, 4 August 1938, Page 4

APPEAL DISMISSED

DAMAGE BY FLOODING TE TEKO FARM DRAINS . The Court of Appeal delivered a rc- . served judgment in Wellington in the » case of Alexander John Hopkirk, of ; Te Teko, farmer, versus Ellen Dawi son, of Te Teko, married woman. The • appellant and the respondent are own- ’ ers of adjacent farms near Te Teko, Bay of Plenty. The appeal was dismissed with costs ' on the lowest scale as from distance. The Chief Justice, Sir Michael Myers, ' Mr. Justice Kennedy, Mr. Justice Callan and Mr. Justice Northcroft held ' that a new trial was unnecessary. Mr. Justice Blair, dissenting, was of the opinion that the appeal should be al- ’ lowed and a new trial ordered. In 1926 the appellant gave the then owners of the respondent’s farm notice under the Land Drainage Act, 1908, requiring them to agree to the construction of a certain drain, which they did. After the construction of the’ drain the respondent bought the farm, knowing of the drain. Since then other drains were constructed and in 1933, 1934, 1935, and 1937 portion of the respondent’s farm was flooded with waters .from drains on the appellant’s land. Alleging that the flooding was due to the wrongful act of the appellant, in diverting waters on his land so that they flowed on to her farm, the respondent sued the appellant last year in the Supreme Court at Auckland, claiming £566 damages for the loss of the use of land, . bringing it back into good pasture, fencing and other items of damage. At the trial of the action, before Mr. Justice Fair and a jury last November, His Honour entered judgment lor the respondent for £lsl and costs. Hopkirk appealed for a new trial.