SUPREME COURT.

Southland Times, Issue 2140, 25 June 1875, Page 2

SUPREME COURT.

(Before His Honor Mr Justice Chapman.) Monday, June 21. Wo now publish that portion of our report., namely, the addresses of Mr Harvey and- His Honor the Judge, which was crowded oat of our last issues — Mr Harvey was surprised that his learned friend (Mr Macdonald) had not gone farther, and averred that the works of the defendant were a great benefit to the creek, inasmuch as they tended to increase the fisheries of the place. He had made some strictures on Mr Longuet in connection with matters which were not in evidence, and the jury would notice that instead of analysing the evidence, he had indulged in general remarki on the worthlessness of the plaintiff's evidence, and the worth of that adduced for the defence. But the jury would know how to valuo that. The counsel for the defence had also led the jury to suppose that, in the event of their finding for the plaintiff, he would apply for an I injunction to stop defendant's works. Nothing of the sort ; but merely, if at all, an ' injunction to prevent him from continuing to pollute the stream. On the two first issues the jury could not do other tliun find for the plaintiff, but with regard to the third, his learned friend would have them conclude that unless the stream were polluted to a very great degree, the plaintiff was entitled to no verdiot. Nothing of the sort. Again, with reference to the mews taken by the defence to show the slightness of the pollution, it proved nothing to show that horses an:l cattle had been seen to drink out of the creek. That wa3 nothing. This was the question : Was the water fit for them to drink, and also, was it fit for household purposes ? Of this, not to speak of the plaintiff's own evidence just then, Mr Bain, who lived constantly on the banks of the stream, was abler to judge than carriers and othsrs who were mere casual users of the water. Mr Harvey's learned friend had done a good thing in drawing, in cross-examination, from Mr Bain, the fact that the water which he (Mr Bain) had been fit to uso had been drawn from the creek in the morning. Very good! The water had then been running clear for at least 13 or 14 hours, aad during the day, when the works were in operation, it had been shown by Mr Bain that the water nas unusable. If that itself didn't saddle the works with the pollution of the stream, what could ? The fact that Mr Bain's horse was for some time in a paddock where it could oet no water but that of the Waikiwi, and thero it got ill, and that when removed to where it obtained other water it immediately recovered, was also pretty good evidence. With regard to the hypothesis raised by the defence on Melvor's evidence, that the ina"»ots came from sheep of his which got drowned in the creek, could they, as sensible men his learned friend was fond of applying that term to the jury— believe it, particularly when it was shown that maggots had been seen nowhere except about and below Kingswell's worker Mr Preston's evidence showed that maggots had existed in a similar manner about his own fellmongery near the Waihopai. (Mr Wade — In his case they had probably travelled overland from the Waikiwi !) To proceed. I.onguet, in the presence of Daw6on, asked King«well to go and ccc the stream, but Kingswell wouldn't; he knew tha c - the stream was polluted, and dared not go to see it, for he knew very well what his works were doing. "Kingswcll had paid that Longuet had asked money for compensation, but it wasn't a questiou of money, but of destroying Longuet's villa residence altogether. Mr Harrey then referred to the great number of witnesses who hud found the water unfit for use. He then analysed the evidence for the defence, and arguod that it was illogical, inasmuch as it proved nothing. Those persons who averred that they had used the water for domestic purposes stated themselves that they then lived a considerable he would say a long — wuy below the works ; und it was indisputable that a time, or rather, in such cases', a distance would be reached when the water of a polluted stream would become pure. Bosi les the circumstance tha the water was usablo at a point below Longuel's could not by any rule of logic be held as proving it to be lit for use at his place. With regard to horses drinking the water at a point between Longuet's place and the works, even while the latter were in operation, he was not prepared to dispute that, or to find anything remarkable in it, for horses wero not so nice in their tastes as hi s learned friend had tried to show, and when they had travelled n long way — as almost all the horses referred to by the defence had done — a nd wera thirsty, it was well known that they drink even stagnant roadside water. One witness — Mr Lawsom — it was true, had himself drank of the water, but what h» drank was the leavings of his horse, and such a man could scarcely bo regarded as a connoisseur in natural liquids. Mr Harvey then subjected the evidence of Mr Dawson to a cau3tic examination, and dismissed it as " signifying nothing j" an I he concluded by stating that the question for the jury was not — might the water be drunk by cattle and horses, but— was it fit for cattle and horses to drink, and for domestic purpo ea ? His Honor then summed up, and in doing so he said : — Gentlemen, it is but little assistance I can render you in this 'iction after the attention you have paid to the evidence, and the remarks which have been made to you on that evidence by counsel. Tha directions which I have to give you in points of law are of the most simple character. There is no doubt whatever that a person, if a stream runs through his land, or if hia land is only on one side of it, has a right to the water of that stream in all its normal purity — in a state of nature ; and no person has a right to introduce any substance whatever which is injurious to health or which readers the water less us iul to the proprietor than it was before. There are four issues, but your attention will be directed chiefly to the third, because I can relieve you so far as to tell you that you should answer the first and second issues in the affirmative. Touching the question of damages I will speak first, because sometimes when left to the conclusion of an address juries think it should guide them in giving their verdict, although -as a rule observations on damages were ua?lesg in a judicial point of view, because thn measure of damages is not regulated by law, but by circumstances of which the jury, unaided, can very well judge . Therefore I can give you little assistance in estimating what pecuniary damage the plaintiff has sustained. He lays it at £500, but you need not be bound by that because it ii quite competent for a pleader when he draws updamages to lay them at the National Debt if lie likes. I will suggest no measure of damages, but if you come to a conclusion in favor of the plaintiff, then give what damages you think fair and reasonable. As to the evidence, Mr Wade is right in admitting the prima facie presumption That, when a fellmongery is established on a stream, the stream will be injured to some extent ; that is to Bay animal matter getting into the stream will end in the stream becoming less pure than before ; but there may be circumstances calculated to rebut this presumption, which is only one of common sense, and it may be rebutted in the mind of a jury by the evidence. If we take the evidence for the plaintiff, and if the cage had stopped there and you had not been called upon to hear any on bohslf of the defence, there is ample to show that the water of the Waikiwi has been injured by the instrumentality of the defendant's works since they began a year and a half ago. The injury might not pc absolutely such that a thirsty man would not drink of the water, but that it was polluted to an extent sufficient to |

render the water unfavorable to human health, \ I think you must hare concluded from the arid en cc for the plaintiff. According to the defence there is only one per cent of impurity in the creek, but, even if only so much, that would make the water less fit for the healthy purposes of men atf&^'aniinals, and if you think that there i 3 even that amount of impurity iv it, then ifc will be competent for you on that ground to find a verdict for the plaiutiff. (Eere His Honor described the process pursued at the works, which had been elaborately elucidated by the defence for the purpose of showing how little, if any, impurity passed from them into the river.) Against any adverse conclusion, which you may be disposed to draw from this process, soveral witnesses hare been called to prove that in their opinions the water lias not been injured. Three or four witnesses have stated that they have been in tho habit of using the water both before and after the existence of the fellmongery, and they have sever detected nny change in it ; but you must remember that this is at variance with the evidence given by plaintiff's witnesse*, who say that, since the establishment of the fellmongery, the water has been unfit for human use, and if you think this evidence for the defenoe contrary to the dictates of common sense you will reject it. As to the evidence about horses drinking the water, it is something, but it seems to me to he of less importance than the learned counsel for both sides appear to think it. There is no doubt that horses prefer water that suits thoir tastf* to water which does not, and so do do^s and cats, and other farm animals. They would take good instead of bad, liked sweat, hny becter than musty. hay, but if very hunary they would, in the absence of good, satisfy their appetites with bad food. When tired and hungry, and away from home men themselves would gladly eat what tiny would turn up their noses at in their own houses. Farmer'B now provide good and pure water for their horses, but I remember in my boyish days that common horseponda, with slimo and garbage on them, were considered good enough for horses. Howerer, in modern times horßeponds have disappeared from England ; they had been found bad for the animals, and injurious to the health of the dwellers in neighboring cottages. Animals will take a goorl article when they can get it, but horses such as belo g to enrtt-rj will whe n thirstj drink even polluted water, and this, though the evidence under this head is perfectly admissible, should be taken iDto consideration by the jury. The whole question is this : Has the defendant caused or been the means of causing noxious substances to flow into the stream, thereby making it wot perfectly fit for human purposes, and for the use of animate 1 If you think so you will return a verdict for the plaintiff. The jury then retired to consider their 1 verdict, but our readers already know it.