MAGISTRATE’S COURT

Southland Times, Issue 20941, 26 November 1929, Page 9

MAGISTRATE’S COURT

SITTING AT OTAUTAU. (From Our Correspondent.) At a sitting of the Magistrate’s Court at Otautau yesterday, Mr W. H. Woodward, SAI., presided. Ranger Evans (Acclimatization Society) proceeded against, W. Buchanan on a charge of allowing refuse from a sawmill to go into the Waiau to the injury of fish. Defendant pleaded guilty. Mr Russell, who appeared for the society, said that defendant was a partner and manager in the firm of Birch and Co., sawmillers, Papatotara, and the procedure in getting rid of the sawdust was by means of a small stream underneath the saw, this ultimately working its way into the Waiau river. Defendants did not know an offence was Joeing committed, and he understood they were going to burn the sawdust in future. In view’ of the fact that immediately proceedings were instituted the defendant attempted to remedy the nuisance, and as he had pleaded ignorance, he was of opinion that a fine of £2 and a conviction would meet the case. In future the society intended to press for a heavy penalty in the case of pollution of streams. Defendant was convicted and fined £2, costs £1 11/-. Civil Cases. Judgment for plaintiff by default was given in the following cases: J. P. McQuilkan (Mr Hodges) v. John Capil, for £7 19/-, costs £3 8/-; same v. Hugh Duncan, for £3 17/-, costs £1 5/6; same v. Henry Marsh, for £3 9/-, costs £1 11/6; same v. Henry Weir, for £3 5/-, costs £1 11/6; W. J. Wesney v. V. Baird, for £1 10/-, costs 14/-; same v. Henry Weir, for £3 5/-, costs £1 11/6; same v. G. Weir, for £2l 7/5, costs £1 15/-. Water Rights Dispute. Nightcaps Town Board (Mr Mackenzie) v. Gavin Brighton, petitioning for an order for defendant to remove obstructions from the Wairio Stream. Defendant lodged an appeal against this order and said he objected to the board taking down a fence and removing it altogether. Gavin Brighton, in evidence, in giving the grounds of appeal against the decision of the Nightcaps Town Board, gave the reason that the stream was not in its place, and was in his boundary. He used the water, and could do with the stream exactly as he liked. He wanted to put it into its original course, which was his boundary. To Mr Mackenzie: The creek had been in its present course for 50 years. He objected to the board taking the fence down and removing it altogether. The Nightcaps Town Board had been compelled to summons him to keep the stock off the road.

Mr Mackenkie, who appeared for the board, asked that the appeal be dismissed, as defendant had submitted no defence in support of it. W. Excell (chairman of the board) gave evidence that the stream under discussion was under the jurisdiction of the board. In three different places a dam was blocking the flow of the water. The willows were lying in the stream and were starting to grow, and would ultimately make an effective dam. Brighton was the occupier of the land. Rubbish would be collected, and floods would occur to the detriment of the land of the Ohai Railway Board, which had asked the Nightcaps Board to take action. There was no necessity to shift the creek:--.to prevent miners mining coal. The fence erected by defendant had the effect of diverting the water. There was very little stock on the property, which would only be of value if it was fenced. If the willows were removed from the stream he considered this would be sufficient to clear it. Defendant could not divert the water without the consent of the board. F. Eric Williams, assistant engineer, Ohai Railway Board, produced a plan of the locality. He had inspected the stream where the obstructions were. The bed of the stream was 3ft 6in below the ballast on the railway line. A complete dam was formed by fallen' willows, and there was every necessity to keep the stream clear to protect the board’s line. It might be practicable to divert the course, but would entail a considerable amount of work. It had not caused any damage so far to the line. He agreed with the previous witness that if the willows were removed this would meet the case. The Magistrate said he had inspected the place and he could not see any justification for defendant failing to obey the order, and he could not uphold the appeal. Defendant must remove the obstructions, and he could carry out any straightening work. The appeal was dismissed, with costs £4 2/-. A. H. Thomson (Mr Hodges) proceeded against J. O’Brien (Mr Mackenzie) for £9 for work done. A counter-claim was made for £l4 13/-. Plaintiff, in evidence, said he was a farmer living at Ringway. It was supposed to be a cash transaction. Defendant asked him to do some ploughing, and said he would pay him whatever he would charge. He had given defendant three days and had never charged for them. He was ten days altogether, and he supplied his own feed and used about nine bags of chaff on the first occasion. He was then asked to disc seven acres and he consented. It was found afterwards the land had to be ploughed and then disced and he supplied the chaff on this occasion also. He had used 22 or 23 bags the last time. O’Brien carted this with his van. He had enough to feed his own horses, a four-horse team. Two years ago O’Brien informed him he was charged £2 per day and he expected to get that. He borrowed a plough from O’Brien, a single-furrow, which he only used twice to scarify the ground for poisoning rabbits. O’Brien borrowed a horse from him and he had to go for it when he wanted it. No arrangements were made regarding grazing at any time. He had not charged for the full ten days because he had allowed for various things. He and O’Brien were neighbours, and he charged a reasonable price. He supplied the implements and the horses. Defendant only supplied the plough for three days. When he was finished there was no question as to payment. Defendant sometimes assisted him to shift his sheep.

H. R. Perriam, fanner, Qtautau, said he had considerable experience in contract ploughing, and charged 35/- for three horses and 42/- a day for four horses. He found all his own horse feed and very often his meals. He considered that plaintiff had done the work too cheap. He would not mind lending a plough, and if he borrowed one he would not make any allowance. He used three or four bags of chaff a day for four horses . When a horse is lent one did not expect to pay for grazing. Plaintiff, recalled, said he gave the paddocks two double cuts, and was four days discing, and three days ploughing. Stanley Davis, labourer, said he saw O’Brien in company with Thomson. The former had somewhere about ten bags of chaff on his spring cart. Mr Mackenzie said that as neighbours they mutually assisted each other. J. V. O’Brien (defendant), in evidence, said that as far as the statement of claim was concerned both assisted each other. When he wanted ploughing done plaintiff agreed to do it. There was no suggestion of payment, and the first intimation he received was a letter demanding payment for the work. He remembered bringing some chaff and he brought seven bags of chaff on the first occasion. He had some chaff, probably 20 bags of his own. Plaintiff used some of his chaff. The arrangement was that one paddock was to be disced, and it was understood that the next one would need to be ploughed. His plough was used, but towards the end he borrowed a plough from James O’Brien. He had always assisted plaintiff very often with sheep and in other ways. He bought a plough'in Invercargill and plaintiff borrowed it to plough furrows for poisoning rabbits. Plaintiff ploughed 27 acres with it. The hire was worth 5/- a day. He contracted with defendant to do his work and borrowed a horse to do some ridging. The horae would not have done more than a week’s work, after which it was turned out

on his property. It was worth 3/- a week to graze the horse. The ploughing was done in May. He could swear that plaintiff was using his plough. He could not tell how many days Thomson was working for him. He remembered going for chaff on one occasion. He did not expect any claim to be made. He could not remember what chaff was left when the job was completed. He had no dispute with Thomson. He counter-claimed for the use of the plough, £5 or £5 10/- a ton for chaff and the grazing of the horse at 3/- a week. He paid £4 for the plough. He was definite that Thomson suggested grazing the horse in the swamp, where there was plenty of feed. He looked after Thomson’s team when he was away for the week-end. The Magistrate said that disputes between neighbours were stupid and foolish. It seemed that Thomson must be paid something for ploughing and he allowed £6 15/-, and on the counter-claim he allowed half a ton of chaff. He was not allowing anything for loan of implements or grazing. Judgment was entered for plaintiff for £4. Archibald D. Pulley v. S. Hibbs, judgment summons for £8 8/7. Judgment was given for payment forthwith, in default seven days in gaol, judgment to be suspended if £1 was paid.