SUPREME COURT. CIVIL SITTINGS.

Colonist, Volume XIII, Issue 1343, 9 August 1870, Page 3

SUPREME COURT. CIVIL SITTINGS.

(Before his Honor Mr. Justice Richmond, and a Special Jury.) MONDAY, August 8. Alleged Improper Entry on axd Flooding of Land. John Attwood v. Thomas Redwood and Charles Elliott, jun. In this action, which is said to be very complex, both as to points of law and the extent of evidence which will be produced, the declaration of the plaintiff, the pleas of the defendants, and the issues agreed upon for both parties will explain pretty fully to the general reader the nature |of the complaint and the defence. The declaration Bets forth that in August, 1869, the defendants wrongfully entered upon sections 40 and 42, district of Opawa, in the Province of Marlborough, and cut a ditch or watercourse thereon, and also dug a ditch on certain other lands, sections 44 and 45, adjoining the sad sections, whereby the plaintiff was disturbed in his use and enjoyment of his land, and a large quantity of water was caused to flow thereon, and it became flooded, and a portion of the soil and the crops thereon were thereby destroyed. The defendants' pleaß state that £5 is paid into Court as satisfaction for entering and wrongfully digging the ditch or watercourse referred to. For the rest they deny that they committed the grievances referred to, and further deny that the cutting of the watercourse disturbed the plaintiff's enjoyment. They also allege that the sections 44 and 45 are on a higher level than tho plaintiff's sections, and that the natural drainage flowed and ought to How on to the lands of the plaintiff, which are subject to receive such natural drainage. The ditch, it is alleged, was dug before the defendants became possessed of the sections 44 and 45; the former possessors had dug a ditch thereon, extending over the lands of the plaintiff, as specified ; and all that the defendant, Thomas Redwood, had done, was to clear out that watercourse, which had become obstructed with weeds, and insufficient to carry off the natural drainage ; and this clearing was done with the consent of one Holdsworth, owner of a part of section 44. There was no grievance caused to the plaintiff by such watercourse, as it does not discharge more than the natural drainage the plaintiff's lands are subject to receive. The defendant, Thomas Redwood, also says (plea 4,) that a ditch cut in a certain portion of the grounds shown on the plan as being part of the ditch or watercourse complained of, was cut by the said defendant, but tho water therefrom does not flow on to the plaintiff's lands. The replications of tho plaintiff, after stating that £5 is insufficient to satisfy the damage done hy entering on the ground, gave a general denial of the materia! allegations contained in the pleas. The following are the Issues on both sides, aB settled, stripped of most of their legal repetitions: — plaintiff's issues. 1. Did the defendant break and enter the lands of the plaintiff, and wrongfully dig a ditch, or watercourse upon the said lands as in the plaintiff's declaration alleged ? 2. Did the defendant dig a ditch, or watercourse, .in, upon, or adjoining to sections 44 and 45, on tho plan of the district of Opawa, and thereby disturb plaintiff's use aud enjoyment of his lands ? 3. To what damages (if any) is the plaintiff entitled ? defendant's issues. No. 1 asks if the £5, lodged in Court, is sufficient satisfaction for entering on and breaking and digging a ditch on the plaintiff's ground. 2. Are sections 44 and 45 adjoining to and on a higher level than pluiutiff's land ? 3. Does the natural drainage of 44 and 45 of right flow on to plaintiff's lands, and are these subject to receive such natural drainage ? 4. Were the defendants justified in cleansing the ditch or watercourse mentioned in the 4th plea, being part of the ditch mentioned in the declaration ? 5. Did the said ditch (mentioned in 4th plea) at the time of the committing of the alleged grievances, conduct a greater amount of drainage on to the plaintiff's land than would have been carried or discharged if tho said ditch had not been made, or than the lands ofthe plaintiff were subject to receive ; or did tho said ditch cause the lands of the plaintiff to be flooded, or the soil or crops thereon destroyed? 6. Did the drainage from the ditch, mentioned in the plea of defendant, Thos. Redwood (plea 4). at the time last aforesaid, find its way to the said lands of the plaintiff, or did the said ditch cause«the lands of the plaintiff to be over-flowed, or the crops thereon destroyed ? For the plaintiff, were Mr. Conolly, of Picton, MrJ H. Pitt, of Blenheim, and Mr. A. Pitt, of Nelson ; for the defendants, Mr. Allen, of Wellington, Mr. Fell and Mr. Acton Adams, of Nelson, and Mr. Nelson, of Blenheim. Various witnesses for the plaintiff were examined yesterday. The case is expected to last for two or three days more.