RESIDENT MAGISTRATE'S COURT.

Wanganui Chronicle, Volume XVII, Issue 2602, 28 November 1874, Page 2

RESIDENT MAGISTRATE'S COURT.

Friday, Nov. 27th, 1874.

(Before Major Edwards, R.M.) ASSAULT. B. Vickory charged James Donnelly and James Willcox with the above offence. In both cases the defendants were fined 20s, or 7 days imprisonment. Thomas Vickery charged James Willcox with assaulting him and using threatening language. Bound over, in the sum of £20, to keep the peace for the space of 6 months. James Stimpson, charged with assaulting Thomas Vickery, was discharged with a caution. CIVIL. William Vivian v Isaac Emery— Claim £2 14s, balance of account. Mr Denniston appeared for the plaintiff, and Mr Hodge for the defendant. The plaintiff deposed to having supplied the goods mentioned in the bill of particu-' lars, and the defendant and his wife positively denied ever receiving same.

The R. M , contrary to the rule in such cases, g;ive judgment against the preponderance of evidence — that i&> f®r the plain tiff ' Frederick Whitlock v Parsons and Purcell. Mr Denniston appeared for the plaintiff, and Mr Hodge for the defendants. This was an action brought by the plaintiff, to recover the sum of £50 for loss and damage sustained by the plaintiff through the wrongful diversion of a Water-course by the defendants. In opening the case Mr Denniston said he would call witnesses who were well acquainted with the whole district: in fact, some of the oldest settlers in the place, who could prove that the watercourse in question was' a natural creek. Mr Denniston farther quoted several authorities on matter of diverting streams, and cited cases from same bearing upon his case. : The first witness called by Mr Denniston was, Henry Claylands Field, who, on being sworn, deposed that he was a Civil Engineer and Surveyor ; he had resided in the district of Wanganui since 1851 ; he was well acquainted with most of the streams and creeks in the district ; he knew the stream iv question ; it had been a natural creek ever since he knew it ; the outlet had always been, and still was, through the land at present occupied by Mr Whitlock ; the streem ran in a serpentine manner to its outlet until a ditch and bank fence had been erected, forming the boundary line between Mrs Hair's and Mr Russell's land ; the stream then ran in the ditches on either pide of the fence, most of the w.^ter running down Mrs Hair's side ; he had been on the ground a few days ago, and found that an aperture had been cut through the bank so as to convey part of the water from Mrs Hair's to Mr Russell's side ; Russell's side had been deepened, and the old outlet, further down the ditch, had been stopped, and a new ditch had been dug along, the west side of London Street, by which the water so abstracted from the ordinary course was conveyed through Parson's and Purcell's land, and thence through Wright's drain to the river. Mr Hodge submitted this witness, and the others called by the plaintiff, to a very searching cross-examination, gathering from them many points of note bearing upon his own case. The next witness called by the plaintiff was Mr W. H. Watt, whose evidence was mostly corroborative of Mr Field's. At the condition of Mr Watt's evidance the Court was adjourned till a a quarter to 2 o'clock. On the R.M resuming his seat, the case for the plaintiff was continued, and Mr Denniaton sailed Charles Small, who said he had been born in Wanganui ; he was now 27 years of age, and as far back as he remembered the stream in question had been a natural creek ; his father had had a mill on the stream ; he thought it originated in a swamp ; there were trees growing in and all about the creek, and flax and toi in the swamp from which it had its source ; he had often walked across, only wetting his boots. S. Wall, sworn, said that in March, 1873, he had been employed by Messrs Parsons and Purcell to cut a drain through their land ; all he knew about the matter was that he and his mate had erected a boundary fence for the defendants. John Richardson, the next witness called, being an old settler, gave evidence mostly corroborative. Frederick Whitlock, the plaintiff, then gave evidence as to the nature of the damage, and partly corroborated the testimony of the former witnesses as to the creek being a natural stream. This closed the case for the plaintiff. ]\lr Hodge in opening the case for the defendants said he would pursue much the same course as that adopted by his learned friend, and call for his witnesses a number of the oldest residents in the district, who would prove positively that the water-course in dispute never had been a natural stream or creek, but that the water had spread all over the swamp, and had found its way to the river, not by any natural course, but had rippled over the bank here and there, in fact, in every and any direction. Mr Hodge then quoted from " Broom's Common Law," and " Broom's Legal Maxims," pointing out the legal bearings of his case. The first witness called for the defence was Mr George Wright, who said he had been a resident in Wanganui since the year 1851 ; he owned land on the river bank adjoining Mr Whitlock's ; he went to the place and saw the ditch, the subject in dispute, before coming into Court. He said the land originally, when it was first known to him, was entirely a swamp ; it was now partly drained ; the land was quite level, except perhaps a gentle slope towards the river ; if the drain was removed, that is if there was no drain there at all, the water would flow as it did when he first knew the locality, all over the swamp, finding outlets over the river bank in all directions. He further said that Mr Small never had a mill on the stream ; he might have had a Scotch mill — a " snuff mull " — but nothing else. Mr George Brooking and Mr J. S. Russell gave evidence for the defendants corroborative of Mr Wrights, strongly denying that the water-course in dispute had ever been a natural creek. Mr Hodge then addressed the Court for the defendants, and Mr Denniston replied on behalf of the plaintiff. At the suggestion of Mr Hodge, his Worship reserved his decision until after he had paid a visit to the place where the disputed water-course runs, which he will probably do this afternoon in the company of the legal gentleman interested in the case.