SUPREME COURT.

Wairarapa Daily Times, 13 March 1925, Page 6

SUPREME COURT.

Sjp THE TARATAHI CASE. jj JUDGMENT FOI£ PLAINTIFFS. * In the Supreme Court yesterday afternoon, before Ilis Honour Mr Justice Macgregor the ease in which Gcoigt McKenzie ’and Thomas McKenzie proceeded against the Taratahi Dairy Co. for £49 3s general damages, and £2OO fcpeeial damages, for alleged pollution iof plaintiffs’ water races, was concluded, judgment being entered for plaintiffs for a total of £3O damages, and a writ of injunction. Thos. McKenzie, plaintiff, gave «violence as to the damage done to his property and the pollution of the watei a’ace caused by the whey and «asli matter from the factory. Witness had ibcen compelled to put down a well and erect a windmill to procure a supply of water for household purposes, as the water race was polluted, the windmill cost ]S l.ld, and if cost £.14 15s yd rto erect it. The claim in connection with the windmill was for £4(5, as tliev still had the windmill. There were also some legal costs. Replying to Mr Hart, plaintiff said Ills main cause of complaint, was the pollution of the house water stream, and also the fact that whey was still -coming on to his property. .1 lie pollution of the house-water race did not affect him so much now since ho had •put down a well further away from the polluted stream, if lie could not get the water in the race clean, he did not want it when it was polluted. The contents of the sump holes put down by the factory had come over his property Jhrec or four times, the last occasion jbeing about last November. His Honour: Supposing a heavy rain came now, Mr McKenzie, would the stuff come over your paddocks again?

Witness: Absolutely, Your Honour. There is nothing to stop it except a •bank about four inches high, which is all broken by stock grazing in the padblocks. Mr Hart proceeded to cross-examine witness as to damage done to the property. when His Honour interjected that' the only evidence of damage he could see so far was the cost of putting in the windmill. Mr Hart said, in that ease, he would wot question witness further regarding the damage. His Honour remarked that it appeared to him that this case should have been settled. Mr Hart: The defendants are willing to settle, Your Honour. His Honour: Well, why do they not agree to an injunction? Mr Hart: There are reasons why we cannot agree to an injunction. His Honour: Well, I don’t see any. Mr R. McKenzie pointed out that the plaintiffs had been 'trying to get something satisfactory from the factory directors for a long time past. His Honour agreed that this appeared to be the position, and that the factory people had not done anything definite, but had adopted temporary expedients to deal with the whey which had not proved satisfactory. Georga McKenzie, plaintiff, gave evidence corroborating that of liis brother.

Further evidence for plaintiffs was given by A. Anderson and Colin Campbell, farmers, of Clareville, who stated that their properties adjoining McKenzie’s had been damaged by the wliev. THE DEFENCE. Mr Hart, in outlining the defence, emphasised the fact that the water race was an artificial supply granted to the factory in- 18S2, under »the defendant’s control, and belonging to them. Plaintiffs did not want the water cut ■off, as they drove their pump with it, but they wanted the defendants to supply clear water down the race. If the injunction were granted it would be injurious to both sides. The main cause of complaint (was as to the domestic water supply, but this had been j)at in by plaintiffs, who were practically getting a loan of it gratis from the company, who were drawing no benefit. His Honour: Why don’t they cut it off? The only point to decide is whether the water is being polluted, and if so, to what extent. James Fisher, farmer, chairman of directors of the Taratahi Dairy Company, said the company always had the light to the water supply, liver since the factory started all waste matters were poured down the water race tintil the plaintiffs took the property. McKenzie suggested tha't the waste be piped over the road and helped to make an open race to take it away over another part of his land. McKenzie later ploughed a paddock and stopped the -outlet. The race overflowed and naturally caused a smell. There was no chance of the domestic supply being polluted, as it was contained in a piped drain. Jt was impossible for the flood water to carry whey across McKenzie’s and on to Campbell’s property, as the land was graded the opposite way. Ilis Honour: Do you suggest that the •previous witnesses are telling me a lot of lies? They have stated that it did Itlow over. Yet you suggest it is a physical impossibility. At present 1 must decline to believe you. •Ilis Honour, to counsel: If you have not a stronger defence than this it will save a lot of time Mr Hart: I a.m calling the Dairy Inspector. lli,s Honour: But we don’t want a lot of theory. We have the facts that plaintiffs’ land is being polluted by vour company, and unless you have evidence to deny those facts we are wasting time. I am not concerned with any other flood water. Mr Campbell stated that the water ace was polluted. and it has not been denied.

J. R. Curie, Dairy Inspector, said lie ]iad received no complaints until Die water had boon flowing' down McKenzie’s property for 12 months. The pits :it- present at the factory were sufficient to vary ail the waste and keep it off McKenzie’s. The solids from the pit Jiad never been shifted by the flood or anything else. Witness sampled the water at McKenzie’s and found it all Tight. Further evidence was given bv T\ A. Milne, W. Fisher, C. field, R. MeKaren and 11. Adams. At the conclusion of (lie evidence, Mr Hart quoted cases from the law reports, and stated that if the damage was not great, or if the causes had ceased, the right of injunction would not lie. HIS HONOUR’S JUDGMENT. His Honour said the dispute had been going on since ItlL’l. It was admitted by defendants that at times refuse had found its way on to plaintiff’s property. Soon after they acquired the land plaintiffs complained of the pollution. No doubt the company had done its best, but the effort had not proved a complete •success. It had been stated in evidence that it was impossible effectively to dispose of the

waste unless it could be got away to a larger river. Probably the granting of the injunction was the best thing that could 'happen to the company, so -that they could make adequate provision for' drainage and consequent disposal of waste matter. It probably would be an expensive matter, but it had to be faced. He did not doubt that plaintiffs had sustained considerable damage, and considered that £SO covering both special and general damages would adequatelv compensate them. He further suggested that the company be given a period of months in which to effect The improvements. On the suggestion of counsel for the plaintiffs, six months was agreed upon. Judgment was entered for plaintiffs, wit'll £SO damages, and a writ of injunction. Co-sits were allowed on the lowest scale.