SUPREME COURT.

Southland Times, Issue 2136, 23 June 1875, Page 2

SUPREME COURT.

(Before Hia Honor Mr Justice Chapman,) Monday, June 21. His Honor tock his seat at a little after ten o'clock. i Longuet v. King&well. — Thie case was again called. Mr Wado opened the case for the , defence. lie said that the main point for the consideration of the jury was the third issue, the two first were merely formal, and were not disputed; but with regard to tho third issue eTidence would be led in the face of which he was convinced the jury could scarcely find in the nffirraativo. It might seem that a fellmon^eiy must of necessity pollute any stream on whose banks it might be situated ; but plans of tiie works would be laid before them, together with calculations ns to the ,'imount of water taken from and returned to the creek, and the manner in which it was returned to the creek, showing that if any of the water was polluted it was only about one hundredth part of it ; nay considering that the works were in operation only eight hours each week day, and idle all Sunday, it followed that the amount of pollution which the r ver Buetained was only as oue in three hundred. His Honor — A homeopathic portion of the whole i Mr Wade — Exactly, your Honor ; a very proper term. After describing the process used at the works, i»nd showing that it was such that it was impossible thot the stream could receive any serious pollution in consequence of their existence near ita banks, Mr Wade called W. Dawson, engineer, who had made a plan of defendant's works on the Waikiwi. That produced was tho one. About one twentieth part of the river ran into the main race, and only aboutjoiie hundredth part of that was used in feilmongery purpose?. Saw a bottle of water taken out of the wool-washing race, and it was not very peculiar, but had particles of wool in it, and would more or less discolor tho river for a little way. Had seen carriers watering their horses with buckets at the bridge, within three or four months. There were about three chains breadth of swamp on each aide of the bridge. To Mr Harvey — The average width of the strenm was 25 feet, and its depth 4ft. 3 inches. Arrived at quantity of water by width, depth, and lineal yard. Don't know the speed at which the river flows, nor the race either. Saw small particles of wool on the race, but no particles Seating on the surface. The water was taken out about a week ago. Thomas Perkins, accountant and land agent, said thac lie resided at the Makarewa on the other aide of the Waikiwi, which he crossed on an average twice a day, coming and going from town. Had examined the water just lately, and had token water out of the stre&m several limeß. First on the 2nd of this month a bottleful which witness produced. The bank was very muddy, and witness just dipped his hard in and took the water out at the bank. Another bottle (producad) was taken out on the 4th of June when there was a fresh in the river — he took it out at the bridge. Another he took on 16th of June. He took one up the race near the works on the 16th of June — and the rest from the mouth of Mr Kingsweli's main race, and its junction with the mer, on the 17th of June. The water taken was a lair sample of the whole. Had watered his own horse at the river. To a juror — He drank well. To Mr Harvey — Witness's horse was a very particulur one. Got tho first bottle of water whero the drainage flows into the river at Bain's corner. Took two samples of water out of the river, and at a time nearer eleven than nine o'clock. None of tho water would bo taken belerp ton o'clock. Mr Harvey — 1 observe that you see the object of my questions. Witness — I speak the truth. To the foreman of the jury — The two firs bottles were not taken while the works were in progress, but all the others were. W. B. Jlingswell — Had been in bueinesß as a fell monger for about: 30 years. About the middle of the year 1872, had a conversation with Longuet, who said he would give me a piece of land for fellmongery purposes, did not enter into terms. Witness purchased his present property in 1873. Longue 1 ; said that only he and witness had tendered for it, and observed thai: if he had known that he could have saved witness some money — thai, they could have managed it well if they had put their heads together. He said thai witness would have to pay for polluting the stream. In presence of Daws<jn, in the month of March, Longuet accused witness of polluting the stream, killing the fish, and if he did not pay for the use of it he would bring an action agsinst witness. Witness then told him that he was coming out in his true colors, and that inasmuch as he had plenty of good water about his place he woula not pay. Longuet tben repeated that h> would bring an action, and shortly afterward? witness received a letter from Longuet'a solicitor. As a rule the Bheepskins which witness bought were not maggoty — never allowed them to become so if possible. In the process ot cleansing the skins whatever excreta comet off them flowed into a pit used for the purpose. Afterwards it is taken out of the pit anu spread over the grass, fclad seen eels and other fish in the pit and other portions of the works. Nothing but common household soap was used in cleansing the wool, and of that onh chree or four ordinary bars a week. If ti t.erson did not know the works were there

I the amount of pollution is so small that . £ would not see it. The ecum never finds way into the stream; it is taken out eve l^ morning and thrown on the grass. Ha° never seen maggots floating down the race j the fish would dostroy them. The water produced by plaintiff has flies in" it, and witness wondered where tho.j flies came from at this time of the year,' unless" they had been cnught long ago, and kept and put into the bottle?. The water was not a fair sample of that in the stream. Had often known people to water their horses in the stream at the bridge. To a Juror — It would be quite possible tc take a bucketful of water out of a sluggish stream like the .Waikiwi without its being dirty. To Mr Harvey — T.ast year witness scoured about .250 bales of wool. Longuet said more than once that if witness would not pay him compensation, ho (Longuet) would bring an action apainst him. Kenneth MoTvor, settler at Waikiwi, said that he was the owner of the land above Mi Kingswell'a wo.rks. Kept sheep on bis land, and CTery year he lost a good many sheep by drowning in the creek. Jam?s Forsyth, fellmonger and woolgeourer, said that he had been in the trade for over thirty years. Till two years Bgo witness had a fellmongcry at Waikiwi, below Mr Longuet's place. Sold out to his son, whom he still continued to assist at the works. The water in the creek had always been us^d by witness's people prior to Mr "Kingswell's works coming; into existence, and since they had come into operation, for domestic pur poaep. There were nevor any complaints made by the men became, of the water, nor had witness ever observed, either in his own person or thafc of others,, any ill effects arising from using the water. Had also sien a waggoner watering hi* horses out of the Waikiwi, and Iho waggoner, on being asked by witness, said that he knew no difference in the water. Tliib wns since Kingswell's works came into existence. The stream between the bridge and Longuet's place was tortuous, full of eddies, and had steap banks — a place whero froth was likely to be found. Witness had no interest in Mr Kingswell's gaining the case ; if lie lost it, witness s family might then have all the trade to itself. Besides hot water, the other ingredients usually used here in cleaning wool are soap and soda. (To the Foreman — No chemicals are used in the soaking dip.) Whatever refuse might pass would have very little effect on the purity of the river. To Mr Harvey — The whole drainage of Mr Kingswell's works fell into the Waikiwi. W. J, Forsyth — Witness had carried on business as a fellmonger on the Waikiwi, bolow Mr Longuet's place, since November. 1871. Since then had used the water of the stream for oookinj purposps, an! had detected no difference in it sinca the qreotion of Mr Kingswell's fellmongery. Had also frequently used the ■water for drinking in ite natural state. Had it, been unfit for use there wap other water close at hand, but they had never used b. To Mr Harvey— The place where witness used the water was distant from the North road the width of Mr Longuet's ground and a Government reserve. There was an old dam (broken down to some extent) in the creek between Mr Longuet'a and witness's place. Charles Garnet knew the fellmongery of Mesers Forsyth and Mason — had been working there for more than two years. Had always during that time used the water in tho streiim, and had noticed no difference in it since Mr KingswelPs works had come into existenoe. To Mr Harvev — Where we used the water is across the railway, further down the rivor than Mr Longuet's. Colin Grey — Witness said ho was a farmer at Wallacetown, where he had been for six year?. >lad been in the habit of driving a iiorse and cart into town, and had been in the habit of wato-ing his horses at the Waikiwi bridge, on tlio Norlh road ; had done so twice laat Saturday. Had not noticed anything objectionable in the water. The water produced (plaintiff 'B bottles) was nothing like that witness had seen in the river. W. Moore, settler in the Waikiwi, knew tho land of both parties to the suit. In April, 1874, witness was working on the Waikiwi, below the works of Forsyth and Mason. He watered his horses at the stream every day. (His Honor pointed out to the examining counsel that the further he went down the stream the weaker the evidence became.) This was about a quarter of a mile below Forsyth and Mason's, and witness had used it personally for drinking and making tea. Again, in January and February, 1875, had used the water for similar purposes within a few chains of Forsyth's place. In March last was in the habit of watering bis horses at the bridge, on the North road, every day for nearly three weeks. The horses never refused it, and it appeared to bo in every way quits fit for use. To Mr Harvey — The place where witness was working might be half a mile below Forsyth an i Mason's. The Court then adjourned for luncheon. On resuming, counsel for the defence called Joseph W. Kirkby, who said that he had been working at Kingswell's works for the last 9 months. Prior to that had been living in a cottage near the railway, below Longuet's place. He then used for his domestic purposes the water out of the Waikiwi creek ; used no other water while he lived there for about three weeks. Witness was a married man. When passing through Longuet's land to his work, witness had seen horses and cattle in Mr Longuet's land on the banks of the Btream, and had frequently seen them drinking out of the Wwikiwi. To Mr Harvey — Witness was at present working at Kingswell's, and when he used to go through Longuet's it was always beforo and after the works were g )ing. Thomas Cummins, carrier, generally gave his horses a drink out of the Waikiwi, at the bridge, when going and coming. Had done so both before and since Kingswell'a works started. The water produced (plaintiff's) was not a fair sample of the water in the creek, unless it was taken from its bed. To Mr Harvey (who held up a bottle of the ivater produced by the defendant) — I could alijost swear that that nevor came out of the :reek at all. Lachlan Fraser, farmer at Waianiwa, had requeutly watered his horses at the bridge icross the Waikiwi, on the North road ; had lone so for the last 18 years, and had perseived no difference in the water since the jrection of Kingswell's works. W. LaWßon, carrier and farmer, had been n the habit of watering his horses at the Waikiwi bridge for the last twelve years up o the month of May last. He had drunk )ut of the same bucket after the homes, and lad never detected any strange taste. Peter Gilkison, farmer, at Waianiwa, had ,lwa<is, when coming to town, been in the labit of watering his horses at the Waikiwi iridge. Had d^no so beforo, and since the rovks of Mr Kingswell had been started, lad also drunk it himself. Mr Harrey did not cross-examine this witess. John Linda iy, farmer, at Limestone Plains, ad been in the habit of watering his horses t the Waikiwi bridge. Had also tasted the r ater himself, and had detected nothiDg Grange in it. James Hamilton, farmer at- Flint's Buah, ad frequently uaed the water of the Waikini t the bridge, on the North road, for watering oreos. Had also tasted it himselfi and had etected nothing strange about it. This closed the evidence for the defence. Mr Macdoaald then addressed the jury for te ddbacfo Begirding tho firpt two iiauee

the jury would have no trouble ; for' it was not disputed that the plaintiff was owner 6f section 2, block 14, Invercargill Hundred, or that he was not entitled to the use of the water of the Waikiwi stream in its natural state and condition. But the third issue in which plaintiff alleged that the defendant had polluted the stream by throwing and causing to flow-into the same noxious substances and fluid?, so that it has become unSfc for his use, was the one which would require most of the jury's a'tention. The fourth issue, in which the plaintiff sought damage?, and the right to claim an injunction to restrain defendant from using the water in the way alleged, would also require some consideration, but nothing compared with the third. The question was not, supposing there had been any pollution, whether it had been great or small, but whether it was of such a degree as to make tho water of the stream unfit for the plaintiff's use. H« felt sure they would answer that issue in the negative, for the evidence would satisfy them that no such pollution aa that alleged by the plaintiff had been caused by the defendant or his works. With regard to the evidence for the plaintiff, his whole case rested almost entirely, upon that of himself and Mr Bain ; for that given by the others went ms: ely to prove that they had on several occasions seen maggots on the bank 1 ) of the stream, and haring seen these they concluded I that the water was unfit for U39. The ovidenca given by the plaintiff clearly resolved itself into this : Aftor Kingswell'a works ommonced, he saw accumulations of filth aud ! mvggot* on tho b mk3 of the st re im ; got imbuod with an idea that the water waa poisoned with arsenic or other chemicals, and having tusted the wator, beoame qualmish from the effects of his imagination, which was poisoned with the belief that there was poison in tho water. Nothing more, and Mr Bain's evidence was to a similar effect. Then with regard to cattle and horses not drinking tho water there was proof of only one horse refusing to drink it, aud that only on one ooca« sion, while it had been shown for the defence that horses had frequently drank water from the lame place without reluctance during the operation of the works. Men had also used the water of the same stream further down for their domestic wont*, and detected nothing strange in it. Besides horses were proverbially nice in their tastes, and setting aside the great probability that the horse in question wai not thirsty at the time, tho bucket in wlr'ch it was offered to him might have boon greasy or otherwise unclean, and so he refused to drink. The maggots might easily be accouuted for by the circumstance testified to in the evidence, namely, that numbers of Mr Mclvor's sheep, which depastured on their owner's property above Kingswell's works, wero in the habit of being drowned in the creek ; and the maggots would very naturally j be washed to the banks from their decomposed carcases. In short tlv; evidence of Mr Longuet and Mr Bain was unsupported except by the presence of the maggots, a:id the one solitary instance of a horse refuging to drink. Mr Maedonall described the various processes used at thofoUmongory, and idmtttod that it was possible that small particles of matter might find their way into the stream, but the pollution, if it could bo called such, must of necessity be what His Honor termed a homeopathic one. He himself deeraei it infinitesimal, and a chemist in estimating it would very likely designate it as a centesimal dillution of a very high degree. He felt sure that the jury as sensible men could not find that the defeniant had so polluted the water as to render it unfit for human requirements. Mr Harvey then addressed the jury on behalf of the plaintiff, logically combatting the arguments used for the defence, and subjecting the evidence for the other side to a most caustic and damaging analysis. His Honor summed up, but our report is unavoidably " crowded out." Alter an absence of two hours, the jury returned a verdict for the plaintiff on all the issues, and assessed the damages in resDect of the last at one farthing. His Honor, at the request of Mr Harvey, plaintiff's counsel, certified for costs — to be paid by defendant— under Eule 167. The Court then adjourned.