SUPREME COURT.

Timaru Herald, Volume XXX, Issue 1478, 17 June 1879, Page 2

SUPREME COURT.

TIMARU.-Mokday, Juhb 16th. (Before His Honor Mr Justice Johnstone.) Crra Session. Francis ¥ranks v. the Temuka Road Board — Cldim, £1600. Messrs Hameraley and Harper appeared for the plaintiff, and Messrs Jameson and Garrick for the defendants. The following gentlemen formed the jury : Messrs E. Q-. Xerr (Foreman), 8. A. Bristol, F. J. Wilson, E. Bantin, H. Green, B. T>. Hibbard, E. P. Scaly, J. JackaoD, J. Qoodall. H. Ford, and H. J.Sealy. ■ . The plaintiffa declßralion set forth that on the 15th May, 1878. and at other times, the Temuka Boad Board, through their rerrants, caused foal and pollute matter to flow into certain springs of -water flowing through the plaintiff's premises at Temuka, known the Eclipse Brewery, whereby the plaintiff has been injured and preyented from carrying on hit business v a m»lt«ter and breweri and

hra been put lo erpei.bo' m procuring ••••liter, ■Oiercforo ho fouj-ht Vt recover the Bum of £1600. The plaintiff aleo sought, for an iujunciiun from the Court to restrain tho defendants from again polluting the water of the springs. Tho defendants m their picas dcnicl all the mnteri jI allegations contained m the declaration* of tin- plaintiff. Mr Harper having oj;oned the cieo for Ilio plaintiff, und put m us evidi-nce tin; "Canterbury Koads Ordinance, 1872," the following evidence was taken :— John Kelligher ; I urn a licensed surveyor. I prepared this plan produced from an actual survey. Itsliowstheplaintiff'e prrinis.s from tho south and the ptreams us they exiat now. I made this tracing fioin tho plan. Francis Franks : lam thu plaintiff m this cast! and am a browerand maltster at Temuka. The brewery I have goes by the name of the Eclipse Brewer.r. I am the occupant of the premises and have been m occupation of them for cix years, (luring which time I have carried on tho business ot a brewer and maltster. There are certain springs upon my premises. [Witness was then handed a map on which no pointed out the springs on his premises.] I have get a gathering piol m which the springs are. 1 should think that the pool is a chain long by about a quarter of v chain wide, on an average. It i* six feet deep on an average, and where the springs are it is ei^ht feet deep. I get the water out of the pool by a force pump. I have occasionally cleared out the creek when the weeds were grow:ng rather fast. There are springs across the road on the opposito side fro/n my premises, on Mr Bhodeß* property. Thoy are distant about a chain and a hul£ Irom my property. When I went there first tho water from Rhodes' property flowed through a culvert into the pool on my premises. It was a continuous running stream, and is now. Boaidts clearing tho pool I made a dam across it, so as to cut off any intercourse between tho water I waß using and tho drainage from my promises. There is a fall of about eight inches m the pool. There is low land from my neighbor's 'premises, O|<poßita the pool, and I cut a citch so as to bring the overflow of water m time of rain from my neighbor's premises below the water m the pool. This ditch waß m existence m May, 1878, when il. was filled m. My neighbor preferred lo put drain pipes m the ditch to lead the water from his pump. Up to May, JB7B, I had no disturbance of the water m the pool, unless when tho river rose and disturbed the mud m tho pool. That occurred, I should say, about four times m the six years I have been there. Xho drainage of my own or other p'reniifea close by thu brewery coulinot have (list urberl the water m the pool. lam a practical brewer, und havo been brewing for the last fifteen years. The water m the pool is particularly good for brewing purposes. Up to Muy, 1878, I may have had complaints about my beer, but not through any failure m connection with the condition of the water. Ibavea continual series of brows unices I happen to liavo a good stock on hand. I generally brew about nine hogsheads a week. On the 17ih May, 1878, my man drew my attention to n fennentution m the tun. I passed it off lightly ut the time, but, when alcne, examined it, und found v very disagreeable smell arising from it. We continued the fermentation, and tcok it down into the cellar when it was cleansing or discharging the yeast. Tho unoll wns mere disagreeable than before. About tho same time my attention was called to the steep where tho malt is coaknd, und I found that, it was in n complete stute of fermentation, which it would iut have been with dear water. I felt- convinced tlia 1 ; there must be somct'.iing wrong, and nent to look at the puol with which I buw nothing wrong until 1 came to theinlet where tbe^tream discharges tho water into the pool. There was a slight discoloration of the water there, but nothing to attract attention. I examined further into the culvert on tho other sido of tho road, and found a str. am of rod-looking wot.r flowing into the main spring vchi' h supplies the culvert into the pool with water. I could not account for this stream of water, as there wns then no fri'sh m tho river, and nothing else to have caußcd it. I followed the stream up until I dime to tbo enil of a creek where the flax is very high, and I found that thi:i stream was coming out o! that creek on to tho side of tho roail. This stream was of tho same red color. I followed it up through properly m the occupation of Mr Carr, m a continuous stream, until I c -me to a culvert under tho Waitohi roud. On crossing the road I fouud ti deep cutting which had been imde ucrosß eonio land known us Mr Hetrlings' laud. I had never seen this cutting before. I followed it until I caum lo Vinestreet, and on the lower sitle of that street I came upon a muds of rutrid matter. There was a culvert under Vine street, and thi! upper end of it was equally bud. There was no water, except rain water,' above that. Thedißtancefro.n where I foundthis accumulation of sewane to my brewery would b<' about a quarter of mile, lliero waß one continuous stream of the putrid matter flowing to my brewery. In following the stream up to my brewery, I found that the old gully had beeu deepened. There waß a cutting made m the gully and then an intermission to where the cutting I found had be> v continued up to the Wailohi culvert. There was no i.ne with me at that time. On getting to the brewery on the same day I and a neighbor washed fifty busheis of barley vlhich was damaged to some extent. I conseqnence of what I fouud m this creek X saw tho Board's Surveyor, Mr Mucpherfon, the next morning. Mr JUacpherson was going with me to the place where the filth was deposited, but he went away from me when near the Post Office. He did not seem to want to visit the place. I afterwards saw Mr Talbot, the Chairman of the Jioird, who went with mo to where the filth was deposited at the Wuitohi culvert. I think Mr Gray accompanied us. I attended a meeting of the Road Board on the following Tuesday, and hvd my complaint verbally before them. I said thut their Surveyor, by making a cutting, had let the sewage flow down Vine 6treet to my premises and that m consequence my business was at a standstill. The Chairman said that they would attend to the matter. I asked them (o pay the cost of putting down a pump for malting. I asked them to do co btcau-e their surveyor had told me m the first place that he would attend to the culvert, but that it would bo a matter of time ; and I wanted the pump for malting purposes. I did not expect to get •water at once good enough for brewing, but I wanted to go on malting. The process of malting takes about a fortnight, and that of brewing about the same tirao. After I asked the Board to pay for a pump, one member, Mr Barker, raid that they must look up the Act and see how far they were liable. On the Chairman telling me that they would attend to the matter 1 left them. After that I found a cessation of the flow m the ditoh, and after waiting a few days, until I thought the pool had cleared itself, I brewed with the water from it, and the beer turned out all right. I paid particular attention to that brew. The water I used with that brew went through just the same process as did the water which I had used with the previous brew. The foreign •woter began to flow down within a week after that, when I should have brewed again if the ■water had been all right. I went to see •whether the eewage was conr.ng down again, and when walking up the paddock I noticed that since I bad first visited the creek a few cods had been cut and thrown into it to stop the flow of tee water, and that these aodi had given way. The water was as impure as before. This was about the end of May or the beginning of June. I attended a meeting of the Board, and told them that the eewage was Sowing down as before, and asked them what they inteuded to do, as it was a very serious matter to me, and I urged upon them the iiecessity of stopping it. Mr Talbot, the Chairman, asked the Surveyor (Mr Macpher~sod) why the flow of the swamp had not been ' (topped, and the latter replied — " Well, I did stop it ; bat the truth is, the rain coming on has spoiled my work." I asked to be allowed to stop the flow by filling m the cutting leading from Vine street to the Waitohi road. In my pretence the Chairman asked the Surveyor how that would do. The Surveyor replied that it would not do at all, as it would have tho effect of backing the water oh "to the -people m Vine street, and that that had been what all the row had been about. Mr Talbot then said to me— "Well, Mr Franks, it appears that either you or the people mu«t;«uffer;until we can carry out our works whioh we hare in' hand, when a stop will be put to.it.", I.tben left the meeting. I gate up brewing aKer that, and did not

again go up to examine the creek, but I know that the rewago continuod to come into the pool. After tho last interview with the Unord, I received this letter from the Board, but before thut the Chairman had asked me >vhat amount, of damugo I considered I h«'l euaroined. I n-plj.-d thut I could not really estimate the damage, but that if they would abate the nuisance ut once co that I could go on |with my business, ond pay me £100, I would be satisfied, but that offer was not to be considered binding on me unless it was accepted at once. I told Hrn that I was mOBt anxious to continue my business, us they were ruining me. The Board told me that they would consider it. On the following day I got. this letter [read] enclosing a resolution passed at a meeting of the Board — "That should Mr Franks have sustained any damage, ho had better send m to the Board a definite claim m writing, and they will then take the whole matter into consideration." I instructed my lolieitor (Mr Hamersley) m the matter. I had watched the creek nearly every day, and about the end of July I found tint the flow of impure water bad ceased. Mr Macpherson, the Engineer to thn Board, told me that the nuisance had been abated. 1 waited for about a week, and then commenced to brew. Previous to that I had a pump put down, but the water was not suitable .for brewing. What beer was made with it was what is known bb " stubborn," it would not take finings. In time 1 got rid of the whole of this stubborn beer— by throwing some of it away, by mixing some, and by selling some of it cheaply. I continued to nwlt with the water from the pump, but not to brew. 1 saw tho works which tho Board wero carrying out, which led the drainage into the original deep gully near Mr Quinn's. These works consisted of a culvert across the main road, and tho terrace was deepened. Formerly the drnin was an open one, but it is closed newThey wero carrying on these works whilst I was not carrying on my business. Since I resumed business on the let of August there has been nothing wrong with the water. An overflow of the river occurred during the timo I was stopped, but. since the lßt of Atigutt there haß been r. o stoppage to the brewery works. I paid Mr Gray £20 for putting down the pump I have referred to. 'ibc pump ib now m use. The quantity of beer which was spoiled by tho bar! wnter on the 17th of May, wus about nino or ten hogshonds. The quuntity which I threw away was nbout six hogsheads. I could huve sold the hogsheads at an average of £5. I was prevented from brewing from the 17th May to tho Ist August with the exception of one good brew, and the stubborn brew. My usual custom is to brew nine hogsheads por week. I should say the profits on v hogshead of beer i« about. £2. If thinuß had go> c on all right, I would have expected to sell six hogsheads per week, tliH profit on which would have been £12. The cost of turning out. a hog»head of beer ib £2, and the profit £2 10s. When I said that £2 was the profit, on tach hogshead, I was supposing I bought tho malt. I suffered damage through the fnllingoffof my customers, fined rmimed brewing on the Ist of August there hns been a great Jailing of! m my business, which I attribute to thu question of the sewerage becoming known to the public, and consequently i rejudice was taken against my boor, it being believed that tho sediment still remained m the bottom of the crerk. I had only one hired man m the browery. I never discovered the sewerage m Vine street before the day mentioned. The force pump sent water into tho copper, the wutor went to the stoi'p, thence to thu cooler, and thenco to tho tun. I used to pump for each brew the water that I needed. To llr Qurrick : Thero is not a pipe from Rhodes' land to the brewery. I get tho water fioin the spring on my own land. There was ix cask sunk on my own land over one of tho spring!, but this did not prevent pollution from getting into the water. I think the pollution would percolate through the cask. The cask was there cix years ago, but I did not see it since. The water coming down the channel by tho road was di«colored. Before the Wailohi road wus formed the channel would run ncrosß near Q.umn's hotel. All the sewage ran into a hole behind Vine street, which has beeu filled up, but if this hole filled up and overflowed, the water would flow into the terrace gully, nnd ultimately would have gravitated to my browery. I have put drainage pipes from Lee's Btoro to a point below where. I take tho watsv for the brewery. 'I'his was because Mr Leo preferred having a close drain. Ho found the pipes, and 1 put them m. This was before I was flooded i ut. No offensive mutter came down that way. Hip vfutor-shed water would flow down the gully, by Quinn's Hotel, beforo the making of Waitohi road and Vine street. My attention was not particularly directed to the scwßge until it affected mem 1878. There wus rain from the. 15th of ilay to the end of July, but I do not think it was ruining continuously. During tho six years 1 huve been m Temuku, a great, number of houses have beon built, and the eewage has consequently increased. To Mr Harper : Tho gully by Leo's would naturally flow into the creek. There is no culvert t hrough tho road to connect it with the other side. The road would prevent the water from getiing into Iho gully by Lee's premises. William Wills : I am Clerk to the Temuka Road Board. Tho map produced is that of the Road Board district. The brewery is within that district. The book produced is the minute book of the Temuka Road Board, and it is kept by me. The m nutes i>how that m Mar, 1878, Mr Franks attended a meeting of the Board and complained of certain damage. I accompanied Mr Franks afterwards to inspect the damage complained of. Mr Franks afterwards attended the Board, on the 2nd of July, 1878, to ask what had been done m reference to the sewage, and proposed that tho matter should be left lo arbitration. On the 7th June, the Board resolved to have a concrete drain built to carry the drainage from Vino street by the Star Hotel. The contract for making the drain was let to William Weir. I was then a ratepayer of the Temuka district. The back of Vine street wns m a wretched state when I inspected it with Mr Franks. When the cutting was made the sewage went down to the creek near the brewery. To Mr G-arriek : Mr Franks told me when I went to inßpeot the place with him that the sewage should go down Baupo creek. A. culvert was put across Vine street when the gully was full. The drainage was done by the Local Board of Health, and consequently I do not know anything about the contract. The Road Board paid for it. The Local Board of Health keep a minute book. William Weir: I am an expreesman m Temuka. I- had a contract from the Temuka Road Board m 1877 for cutting a drain from Vine street to Waitohi road, and down through the gully. I put culverts across Vine street and the \S aitohi road. I began to cut the drain m the creek near the brewery, and when I cut across Vine street foul water ran down the drain. Tho sewage at the back of Vine street went down the drain. John Talbot : I amOhairmin of the Temuka Road Board. I succeeded Dr Rayner m 1877. I was a member of the Board when Weir's tender was accepted. The contract was let by the Road Board. Macpherson was surveyor at the time. In May, 1878, 1 accompanied Mr Franks over the drainage ground, to inspect the drainage complained of. To Mr Garrick : The sewage went to the brewery before the formation of Vine street and Waitohi road. I have been m the district ten years, and m my opinion no sewage came down that way ten years ago. If there was any sewage it would have to go to the brewery, as it had no other outlet. Keith Forbes Gray: I am an engineer residing at Temuka. I have lived there about 14' years. I know the creek from whioh Mr Frankß get his water. There were only one or two houses at the back of Vine street when' I first knew the place. There are 20 or 30 houses there now. I saw a cutting made between Vine street and the Waitohi road. I went with Mr Franks to the gully behind the old foundry, and went through the cutting going to the brewery, and thence to the brewery creek. There was stagnant water m the cutting. It was dirty sewage water. I have no doubt it would flow into the brewery creek. There was another gully by the Star Hotel, coining through the sections between Vine street and Mam South road. In the early days this gully was open, and bad no connection with the gullies leading to the brewery. I believe there was a culvert/across the Waitohi road when made originally. Only m fresh .time the , water would go aorpsi the Waitohi '.road? Mr Franks Bent for, mv to pat m some pipes, and I then taw malt m

the Bteep. It appeared lo have a frothy appearance. I did not taste the beer because it smelt. In the early days the sewage w ent hetween Tine street and the poßt-office. To Mr Giirrick : Vine etreet was rnised above the naturul leva 1 , and formed a barrier to the passnge of the water. To Mr Harper : The water would have gone through the gully behind the bell tower and by Quinn's hotel only for the formation of Vine street. John Hayhurst : I was a member of the Temuka Road Board m 1877, when Weir's contract was let. I know Vino street. There wbb no culvert through it. The Board never intended to lead the wator to the brewery. The Board afterwards changed it. To Mr Oarrick : I have been m Temuka 20 years. The water from the pool where the stnbles are now, could never have gone to the brewery. It /would have gone across to the Post Office. The pool was filled m several yearß ago. The formation of the main south road would have prevented this flow, but I do not know whether or not there was a culvert made m the road. The water could not possibly have gone aoross Vine etreet. The water between the Waitohi road and Wood street must have found its way to the brewery whether Vine street was formed or not. To Mr Hamersley: If there was no Vine street or Waitohi road any sewage colleoled at the back of Vine street would naturally go down by the back of Quinn's Hotel, and would not go to the brewery. The gully by Quinn's is deeper and wider and nearer to Temuka thnn any of the other gullies. William Williamson : I am an engineer. I have known Temuka for the last seventeen or eighteen years. I have beem practising my profession for the last seventeen years m the district ; first for tho Provincial Government, and afterwards for the Road Boards. I took the lnveU of the now sewer. I took my levels from the head of the sewage. There is a general fall towards the couth m the Temuka Road Board district. As regards the fall to the brewery without any arlificiul drainage, the natural flow of tho water from the river on the west lo the river below the brewery, is towards the brewery. All to the ratt of a terrace ne»r the Post-office would flow to the browery. Of three outlets for water, two of them flowed to the brewery, and the third, which runs by the Star Hotel, does not. Ido not think the making of Vine street altered the condition of tho ground. Tho Waitohi road stopped the main drain, which flowed towards tho Star Hotel, and turned the drainage down to Vine street, where it spread out. on to tliu tabln land, and renamed there until it evnporated. There was a imlural obstruction win. h prerented it flowing further. In case of heavy rain, the bulk of the water would flow to the browory, the remainder would rest there until it evaporated. I saw Weir making the drain referred to. I know tho new permauent drain. I took tho levela of the drnin. The land from the main sewage on the west side of Main South road and north of Vine street to the table land below the terrece is practically level, but then* is a fall of lft. 6in. to 8 chains I hence towards the browery. There is a fall of 4ft m 18 chains of the new drain. There was a culvert undor the Waitohi road before one was put there by Weir. The culvert was m a line with the gully leading down to the Star Hotel. To Mr Garrick: With regard to the naiural drainage, two ehium'la out of three would have their way towards the brewery. There wbs nothing for the wnter collecting on the table land but to evaporate. The effect of cutting the drains was t> concentrate the sewage and take it dire.et to the brewery. Before, tho sewagejwas stagnant iv Vine street and created a nuisance. The water would not have gone to the brewery had not the drain been made. The Court then adjourned until 10 a.m. to-day.