CLAIM OF ROBERT GAWN, OF OTAGO (PAPERS RELATING TO).

Appendix to the Journals of the House of Representatives, 1885 Session I, H-37

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1885. NEW ZEALAND.

CLAIM OF ROBERT GAWN, OF OTAGO (PAPERS RELATING TO).

Return to an Order of the House of Representatives, dated 18th August, 1885. Ordered, " That there be laid before this House a copy of all reports, documents, and papers relating to the eluim of Robert Gawn, of Otago."—(Me. SAMUEL.)

Mr. A. A. Catomoee to the Hon. the Attoeney-Geneeal. Sib— 95, Princes Street, Dunedin, 10th August, 1883. Enclosed I beg to forward you notice of action by John Shaw, of East Taieri District, farmer, pursuant to section 28 of " The Crown Suits Act, 1881," for the recovery of damages alleged to be sustained by him, and an injunction, through the action of the Minister for Public Works in cutting or diverting a ditch or watercourse in connection with the Otago Central line of railway, and would thank you to acknowledge the receipt of same. I have, &c, The Hon. the Attorney-General, Wellington. Alfeed A. Catomoee.

[Enclosure.] Hee Majesty's Attoeney-Geneeal in New Zealand, at Wellington, in the Colony of New Zealand. I, the undersigned Alfred Augustus Catomore, as the solicitor for and on behalf of John Shaw, of the East Taieri District, in the Provincial District of Otago, in the Colony of New Zealand, farmer, do hereby, pursuant to section 28 of "The Crown Suits Act, 1881," give you notice that the said John Shaw will, upon the expiration of one month from the time of your being served with this notice, or the same being left at your office, or forwarded by post to you, or so soon afterwards as can be done, cause a petition setting forth the claim of the said John Shaw, as hereinafter mentioned, to be filed in the Supreme Court of New Zealand, Otago and Southland District, at Dunedin, in the Provincial District of Otago aforesaid, for the hearing and determination thereof, and stating in such petition inter alia as follows : — 1. The said John Shaw was at the time of the committing of the grievances hereinafter mentioned, and still is, the owner of and in lawful occupation of a certain piece of land situate in the East Taieri District aforesaid, being Section numbered six (6), Block nine (IX), of the said district. 2. That the Minister for Public Works of the said colony, or his servants, agents, or workmen, under and with his authority, in or about the months of August and September, one thousand eight hundred and eighty-two, made, cut, dug, altered, constructed, or diverted, or caused to be made, cut, dug, altered, constructed, or diverted, in connection with a certain public work, to wit, the construction of the Otago Central line of railway, a certain ditch or watercourse along and through the boundary of Sections five and eleven, Block IX., East Taieri District aforesaid, dividing the land of one Eobert Gawn from that of one John Bell, the owners thereof, which said ditch or watercourse so made, cut, dug, altered, constructed, or diverted, was left to terminate at the north-eastern boundary or corner of the said land of the said John Shaw, whereby and by means whereof a large amount of water, gravel, and silt, in the month of January last, and from thence up to the present time continually, has been caused, permitted, and suffered by the said Minister for Public Works to flow down and through such ditch or watercourse, and wrongfully permitted and suffered to escape on to and cover the said land of the said John Shaw, and to carry away a portion of such land; and by the means aforesaid a large quantity of water, gravel, silt, and other matter, in and since the said month of January last, has been deposited on to the said land of the said John Shaw and remained thereon, thereby destroying the grass and herbage growing affd being on eleven acres or thereabouts of the said land, which became and is wholly lost to the said John Shaw ; and the said land of the said John Shaw became and is injured and of less value to him, and he has been hindered and prevented from using the said land. 3. That the said John Shaw claims two hundred and fifty pounds (£250) for the said damage, loss, and injury to his said land, and also praying that the said Minister for Public Works, hid I—H. 37.

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agents, servants, and workmen may be restrained by injunction from continuing the wrongful acta hereinbefore complained of, and that the said John Shaw may be at liberty to prosecute his complaint in the said Court for such further or other relief as the nature of the case may require. Dated at Dunedin this tenth day of August, one thousand eight hundred and eighty-three. Alfeed A. Catomoee, 95, Princes Street, Dunedin, Solicitor for the said John Shaw.

Mr. A. A. Catomoee to the Hon. the Ministeb for Public Woeks. Sie, — 95, Princes Street, Dunedin, 9th October, 1884. I have the honour, by direction of Mr. John Shaw, farmer, East Taieri District, to write you relative to the damage done to his land at Duke's Eoad during the late flood on the 27th September last, by water flooding his land and washing away some eighteen chains of soil (which cannot be replaced), together with the grass and oat seeds sown thereon, estimated at £30. This damage, I am instructed, is caused by a certain bridge and other works having been made and constructed by the Public Works Department in the formation of the Otago Central line of railway at the north-east corner of Section 5, Block IX., East Taieri District, which are insufficient to carry away the water through the channel constructed for that purpose. Before the construction of such works the water in flood-time never took the course it has now done, or in any way interfered with Mr. Shaw's land in question. Mr. Shaw would therefore invite the Government to cause an inspection to be made of the damage done and the cause thereof, and would respectfully request that such steps may be taken to prevent further injury being done to his land, and also that the Government would see fit to compensate him for such damage. I have, &c. The Hon. the Minister for Public Works, Wellington. A. A. Catomoee.

The Engineee-in-Chief to the Disteict Engineee, Dunedin. Public Works Office, Wellington, 16th October, 1884. Memorandum for District Engineer, Dunedin. Heeewith please find a copy of a letter received from Mr. Catomore with reference to damage sustained by Mr. John Shaw, through the flooding of his land at Duke's Eoad, East Taieri. Will you kindly furnish me with a report on the matter at an early date, and at the same time return correspondence, M.I. 84-1248, concerning the flooding of Mr. Shaw's land on a previous occasion. Walteb Callcott, For Engineer-in-Chief.

The Assistant Engineee-in-Chief to the Disteict Engineee, Dunedin. (Telegram.) Wellington, 29th October, 1884. Be Gawn's and Shaw's drainage at North Taieri. Please say what is position of matter. Is there no way of settling it without Gawn and Shaw going to law ? E. E. Ussher, Esq., Dunedin. W. N. Blaie.

The Disteict Engineee, Dunedin, to the Assistant Engineee-in-Chief. (Telegram.) Dunedin, 29th October, 1884. In reply re Shaw and Gawn, I will forward plan and report in a day or two. I think we will have to take land from Shaw under the Act, as he is most unreasonable. Gawn will do anything to settle this vexed point. I trust my report will give particulars. E. E. Usshee, W. N. Blair, Esq., C.E., Wellington. District Engineer.

The District Engineee, Dunedin, to the Engineee-in-Chief. Ee the Flooding of Mr. <X Shaw's Land at East Taieri. Sib, — Public Works Office, Dunedin, 18th November, 1884. In compliance with instructions contained in your memorandum of the 16th ultimo to examine and report on alleged damage sustained by Mr. John Shaw through the flooding of his land at East Taieri on the 27th September last (vide Mr. Catomore's letter of 9th ultimo to Minister for Public Works), I have now the honour to report that I visited the locality on the sth instant with a view of ascertaining the amount of damage done. In order that you may more clearly understand what I have to say, I enclose a plan of portion of Mr. Shaw's property, through which passes the Otago Central Eailway. On it I have marked the place at Duke's Eoad, where the damage was supposed to have taken place; I have also marked the position of the bridge between the properties of Gawn and Bell, which Mr. Catomore states causes all the damage in time of flood, on account of its not being large enough to carry the water. J have also given some cross-sections of Mill Creek, showing how Mr. Shaw has obstructed the flow Of water with fascines, and by placing wires across the creek. With reference to the damage done to property at Duke's Eoad, I have only to say that the statement contained in Mr. Catomore's letter is entirely without foundation. The small quantity of water which lay on Mr. Shaw's ground at this place was caused by his own action, as the ditch at north end of Sections 11 and 12, Block V., was ploughed in, thereby causing an obstruction to the drainage. The fall of the Taieri Plain at this place is from north to south in a southwesterly direction, to foot of plain. The water of this extraordinary flood naturally flowed towards Mr. Shaw's ground, and had he not ploughed in and filled up the ditch the water would not have remained on the small peice of ground for the short time it did. By reference to the plan you will

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see that, in constructing the railway, I made provision for the drainage by means of pipes in cattlestops, and under the road at the gate. To the west of Section 12, on the south side of Duke's Eoad, you will see the culvert and ditch marked on plan, showing plainly that provision was made to carry the water along the south side of road, on the inside of the fence. With reference to the bridge referred to by Mr. Catomore as being too small to carry the water, I cannot at all agree with him. The bridge is a 20ft. span, with an lift, span at each end, and, in my opinion, quite large enough to carry all water in ordinary and extraordinary floods, provided the flow of water is not obstructed, and a clear way given. The Mill Creek, some eighteen or twenty years ago, was diverted around the right angles as shown on plan, and the action of those who carried out the work was agreed to by Mr. Shaw. Mr. Gawn, who purchased a few years ago Sections 4 and 5, being adjoining land to Mr. Shaw, has done all in his power to prevent the creek from flooding his own and adjoining property, by means of widening the creek and forming an embankment, and very considerably widening and protecting the angle at Cross-section CD, between his own and Mr. Shaw's property. Mr. Shaw, on the other hand, will do nothing whatever to further the flow of water, which could easily be done by means of a slight embankment on his land, and widening the angle at Cross-section AB. He has always acted as an obstructionist. Mr. Gawn is willing to do anything reasonable to get over this trouble with his neighbour. He will widen the creek at Cross-section CD as may be suggested; but this would be quite useless unless Shaw widened his corner at Cross-section AB; and, as he will not do this, I would suggest —provided we have the power—that a triangular piece, 200 links by 150 links, be taken and the creek cut as shown on proposed diversion at AB, and thus allow Mr. Gawn to carry out this most necessary improvement. Gawn has offered from time to time to purchase the small paddock from Shaw—about ten and a half acres —but Shaw will neither sell nor assist in any way to get rid of the flood-water. The flood referred to in Mr. Catomore's letter was the greatest witnessed for ten or twelve years past. Mr. Shaw would during any great flood receive more or less water on to his property. I have to repeat that the damage referred to is quite imaginary, as I saw none when on the ground. Before concluding I beg to express an opinion why Mr. Shaw is so much annoying his neighbour, Mr. Gawn. By reference to tracing enclosed you will perceive that Shaw's land surrounds Gawn's, and my conviction is that he wants to annoy and vex Gawn so that he may sell out, thereby giving Shaw an opportunity of acquiring the place for one of his many sons. In order to answer Mr. Catomore's letter, and to make you quite conversant with the case, I have been obliged to go beyond the contents of the letter. According to request, please find enclosed correspondence, M.I. 84-1248. I have, &c, E. E. Usshee, The Engineer-in-Chief, Wellington. District Engineer.

Mr. A. A. Catomoee to the Hon. the Ministee for Public Woeks. Sib, — 95, Princes Street, Dunedin, 16th December, 1884. I have the honour to refer you to my letter of the 9th October last, on behalf of Mr. John Shaw, farmer, East Taieri, relative to damage done to his land, and would thank you for an early reply thereto. I have, &c, The Hon. the Minister for Public Works, Wellington. A. A. Catomoee.

Messrs. Macassey, Kettle, and Woodhouse to the Hon. the Ministee for Public Woeks. Ee Bobert Gawn's Claim. Sib,- — Dunedin, 30th December, 1884. Eeferring to Mr. Ussher's report to the Engineer-in-Chief, dated the 18th November last, we have now the honour to inform you that Mr. Gawn has instructed us to apply to the Government to repay to him the amount he has been compelled to pay in consequence of the action of the Government in interfering with the natural flow of the water of the Mill Creek, and bringing it along the Otago Central Eailway line to our client's land, as shown on the plans forwarded by the Government Engineer here. In delivering judgment in the action of Shaw versus Gawn, his Honour Mr. Justice Williams found the facts to be as follows: [Extract from judgment.] "In times of flood, however, the water coming down from the hills made the Mill Creek and the ditch above the defendant's (Gawn's) land overflow, and the water came across the sections generally, but not in any defined channel. This was the state of things after the land had been brought into cultivation, but before the railway embankment was made. . . . The making of the railway embankment, however, had the effect of preventing the flood-water going across the sections, but, instead, this water was concentrated in the Mill Creek and in the drain which emptied itself into the defendant's (Gawn's) drain," &c. It is not necessary for us to place further facts before you, as they are well known to Mr. Blair, and the Hon. Mr. Stout, who will be able to give you full information on the subject. Our client is out of pocket to the extent of over £200, made up as follows : Paid Shaw's legal expenses awarded by Court, £62; paid his own (Gawn's) legal expenses, £80; witnesses' expenses, &c, £61: total £203. We feel confident that, after making yourself acquainted with the facts of the case, you will have no hesitation in recommending the Government to pay our client's demand. We have, &c, Macassey, Kettle, and Woodhouse. The Hon. the Minister for Public Works, Wellington. P.S.—We enclose a copy of Mr. Justice Williams's judgment.

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[Enclosure.] Shaw versus Gawn.—(Copy of Judgment.) In this action, heard on the 20fch September, 1883, his Honour now delivered the following judgment:— In this case the land of the plaintiff lies beside the land of the defendant, but is generally at a lower level. The fall of the land is not, however, at right angles to the boundary, but is in an oblique direction. Originally all the land was more or less swampy, and in time of flood the water came from the higher lai:.ds across both sections. I am perfectly satisfied, both from evidence and personal inspection, that there was never a stream having a defined channel flowing through the land of either party. When the land was brought into cultivation a ditch was made along the south side of the plaintiff's land, which was continued downwards through other land to the Silverstream Biver. Above, along the defendant's west boundary, but on defendant's land, a ditch was made connecting with the ditch on plaintiff's land and at right angles to it. The ditch on the defendant's land continued till it came to the north boundary of the defendant's section, and then turned at right angles eastward along the north boundary to the north-east corner of the section. Above this again there was a ditch connecting with a creek called the Mill Creek. The water therefore flowed down from the Mill Creek through the defendant's drain into the plaintiff's drain, and thence through other drains into the Silverstream Biver. In times of flood, however, the water coming down from the hills made the Mill Creek and the ditch above the defendant's yard overflow, and the water came across the sections generally, but not in any defined channel. This was the state of things after the land had been brought under cultivation, but before the railway embankment was made, and there is no need in considering the right of the parties to go back to any earlier state of things. We find, therefore, at this time an accepted system of drainage, but no protection against flood-water or provision for carrying it off. The making of the railway embankment, however, had the effect of preventing the flood-water going across the sections, but instead this water was concentrated in the Mill Creek and in the drain which emptied itself into the defendant's drain. This water brought down with it a quantity of fine gravel which began to accumulate on the defendant's land. In order to relieve himself of this accumulation the defendant enlarged the drain on the north side of his land, but did not widen the drain on the west side. The natural effect of this was that when a flood came the water came down the enlarged drain in too great a quantity to be carried off by the drain on the west side of the defendant's land which had not been enlarged, and impinged directly upon and overflowed the plaintiff's land, carrying with it a deposit of gravel. It was contended that the defendant had a right to enlarge his drain in this way and to get rid of the nuisance at the expense of his neighbour. Ido not think there is any foundation for this contention. Either the additional quantity of water, and the gravel it brought with it, came into the defendant's drain rightfully or wrongfully. If it came rightfully, then the plaintiff, in his turn, would probably be bound to receive it in his drain, but he certainly would not be bound to receive it anywhere else. If, on the other hand, it came wrongfully, then the defendant could, if he had chosen, have endeavoured to bank it out; and if in doing so he had injured third persons he might not have been answerable. What, however, the defendant did was to lead it through his own land and discharge it on to his neighbour's —a proceeding, in my opinion, wholly unjustifiable. As I before intimated, I think the defendant is answerable for the damage he has caused to plaintiff's land, and I assess that damage at £3. I think also the plaintiff is entitled to an injunction, for if things remain in statu quo the injury will recur, and the plaintiff's paddock will become permanently injured. The defendant will therefore be enjoined from discharging water through his drains upon the plaintiff's land, except into the drain of the plaintiff heretofore in use. That, I think, will be sufficient, as of course the word " water" includes the deposit the water brings with it, and the defendant will have to take such steps as may be necessary in order to comply with the injunction without the precise mode to be adopted being specified. Judgment accordingly for £3 damages, injunction in the above terms, and costs.

The Engineee-in-Chief to the Hon. the Ministee for Public Woeks. Memorandum for the Hon. the Minister for Public Works. I do not think that Mr. Gawn has any claim against the Government, and I do not think Government should admit any liability. As I have heard the law of drainage explained in Court, anyone can lead the water he receives on his property on to the next lowest property, as long as he does so in the direction of the natural flow of the water, and he can do this in a concentrated form, that is, by means of a ditch, and the next owner is bound to receive it; if he will not prepare to receive it properly he must, as I understand it, be responsible for any damage that may accrue to his land. In this case Mr. Shaw does not appear to have provided a drain sufficiently large to receive the water so concentrated, and I am at a loss to understand the judgment given in his favour. Wellington, 2nd February, 1885. John Blackett.

Messrs. Macassey, Kettle, and Woodhouse to the Hon. the Ministee for Public Woeks. Ee Bobert Gawn's Claim. Sib,— Dunedin, 23rd February, 1885. We have the honour to draw your attention to the fact that our letter to you of the 30th December last has not yet been answered. Will you kindly favour us with a reply ? We have, &c, Macassey, Kettle, and Woodhouse. The Hon. the Minister for Public Works, Wellington.

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The Disteict Engineee, Dunedin, to the Engineee-in-Chief. Ee the Flooding of Mr. John Shaw's Land at East Taieri. Memorandum for the Engineer-in-Chief, Wellington. When the Hon. the Minister for Public Works was in Dunedin a short time ago, Mr. Charles Kettle, solicitor, waited on him re the above matter, and asked that the Government would make good any loss that Mr. Eobert Gawn has sustained in the way of law expenses, &c. As the Minister had not time to consider the subject, he asked me to give him some information on his return to Dunedin, but as I was in Invercargill at that time, taking over the district, I had not an opportunity of seeing the Minister; will you therefore please give him my report to you on the above case, dated 18th November last, which deals pretty fully with the whole matter. I beg to enclose you a copy of the judgment" delivered by Mr. Justice Williams on the 24th January, 1884. Mr. Blair knows the circumstances connected with the case, and doubtless will give any further information that the Minister may consider necessary. E. E. Usshee. Public Works Office, Dunedin, 25th February, 1885. District Engineer.

The Undee-Seceetaey for Public Woeks to Mr. A. A. Catomoee. Sib,— Public Works Office, Wellington, sth March, 1885. In reply to your letters of the 9th October and the 16th December last, relating to an alleged damage done to Mr. Shaw's land at East Taieri, caused by the Otago Central Eailway having obstructed the flow of water during a flood which occurred in September last, I am directed to inform you that an exhaustive inquiry has been made into this matter, and it cannot be found that the railway was in any sense the cause of the water remaining for a short time on Mr. Shaw's land; on the contrary, in fact, the Minister is advised that the damage done to Mr. Shaw's ground was the result of his own action in ploughing in a ditch that formerly carried off the water, and as the flood was one of extraordinary severity tbe result was that the water remained for a brief period on Mr. Shaw's land. The Minister is therefore unable to entertain Mr. Shaw's claim. I have, &c. C. Y. O'Connoe, A. A. Catomore, Esq., Dunedin. Under-Secretary for Public Works.

The Undee-Seceetaey for Public Woeks to Messrs. Macassey, Kettle, and Woodhouse, Gentlemen, — Public Works Office, Wellington, sth March, 1885. In reply to your letter of the 30th December last, claiming, on behalf of Mr. Gawn, the sum of £203, being costs in the case of Shaw versus Gawn, I am directed to state that, as this has already been the subject of litigation in the law Courts, the Minister for Public Works does not see his way to interfere in the matter, or to entertain Mr. Gawn's claim. I have, &c, C. Y. O'Connoe, Under-Secretary for Public Works. Messrs. Macassey, Kettle, and Woodhouse, Solicitors, Dunedin.

Messrs. Macassey, Kettle, and Woodhouse to the Undee-Seceetaey for Public Woeks. Ee B. Gawn. Sib,— Dunedin, 16th March, 1885. We have the honour to acknowledge the receipt of your letter of the sth instant. Mr. Gawn is somewhat surprised at the position which the Minister has taken up, seeing that the Government officials here, who know all the facts of the case, are all of opinion that the claim made by our client is a fair and reasonable one. Our instructions are to take further action in the matter. We have, &c, Macassey, Kettle, and Woodhouse. The Under-Secretary for Public Works, Wellington.

Messrs. Macassey, Kettle, and Woodhouse to the Hon. the Ministee for Public Woeks. Ee Bobert Gawn and. Shaw. Sib,— Dunedin, 17th June, 1885. Eeferring to our previous letters to you on this subject, we have the honour to state that Mr. Eobert Gawn has again instructed us to draw the attention of the Government to the fact that unless some immediate steps are taken to carry off the flood-water which, owing to the interference with its natural flow by the construction of the Otago Central Eailway, has been brought on to his land, serious damage may be done. Mr. Gawn further instructs us to say that, in the event of his being again sued by Mr. Shaw, he (Mr. Gawn) will hold the Government responsible for all damages and costs. We have, &c, Macassey, Kettle, and Woodhouse. The Hon. the Minister for Public Works, Wellington.

The Undee-Seoeetaby for Public Woeks to Messrs. Macassey, Kettle, and Woodhouse. Gentlemen, — Public Works Office, Wellington, 30th June, 1885. I am directed by the Minister for Public Works to acknowledge the receipt of your letters of 16th March and 17th June respectively, again requesting the Government to take some steps in the matter of the drainage of Mr. Gawn's land at East Taieri.

* A copy of the judgment is attached to Messrs. Macassey, Kettle, and Woodhouse's letter of the 30th December, 1884 (vide page 4).

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In reply, I am to state that the Government do not consider that your client has any claim upon them, and therefore the Minister is unable to give you any other reply than that already communicated to you in letter of the sth March last. ~,...- I have, &c, Messrs. Macassey, Kettle, and Woodhouse, H. J. H. Blow, Solicitors, Dunedin. For Under-Secretary for Public Works.

The Chaieman, Public Petitions Committee, to the Undee-Seceetaey for Public Woeks. Sie, — Public Petitions Committee, 3rd July, 1885. I have to enclose for your report the petition of Eobert Gawn, which you will be good enough to return to me at your earliest convenience. I have, &c, A. Tuenbull, Chairman, Public Petitions Committee. The Under-Secretary for Public Works, Wellington.

[Enclosure.] Copy of Petition. To the Honourable the Speaker and Members of the House of Eepresentatives of the Colony of New Zealand. The humble petition of Eobert Gawn, of Taieri, in the Provincial District of Otago, New Zealand, farmer, Showeth, — 1. Your petitioner is the owner and occupier of certain lands in the East Taieri District, in the Provincial District of Otago aforesaid, consisting of, amongst other sections, Section five (5), Block nine (IX.), of the said district, shown on the plan hereto annexed; and one John Shaw is the owner and occupier of the adjoining land, viz., Section six (6) of the said block. ■2. Previous to the construction of the Otago Central Eailway the floodwater of a certain stream in the said district, called " The Mill Stream," flowed naturally over Sections eleven (11) and twelve (12), and down to and over the said Sections five (5) and six (6). 3. Owing to the construction of the said railway the said floodwater has been prevented from flowing in its natural course as aforesaid, and has been collected and brought along the eastern side of the said railway to point A on the said plan, where it turns into the said section numbered five (5), and runs along the northern boundary thereof, thence down the western side of the said section five (5), and thence through the land of the said John Shaw. 4. When the said stream becomes flooded, the floodwater, being concentrated and collected as aforesaid, flows in large quantities over the land of your petitioner, and into and upon the land of the said John Shaw. 5. About the month of September, 1883, the said John Shaw commenced an action in the Supreme Court against your petitioner, claiming damages for injury done to his land by the said floodwater, and praying for an injunction. 6. The said action was tried before His Honour Mr. Justice Williams in the said month of September, and in the month of January following the said Judge delivered the following judgment: [A copy of the judgment has already been printed in the earlier part of these papers, vide enclosure in Messrs. Macassey, Kettle, and Woodhouse's letter of 30th December, 1884.31 7. Your petitioner directs your attention to the facts of the case, as found by the said Judge. 8. The said litigation has cost your petitioner the sum of £203, made up as follows : Plaintiff's taxed costs, £62 ; your petitioner's legal expenses, £80; paid for witnesses' expenses, &c, £61. 9. Your petitioner craves leave to refer you to the reports on the subject sent to the Government by the Public Works Department at Dunedin. Your petitioner therefore prays,— 1. That the said sum of £203 may be paid to him by the Government. 2. That steps may be taken by the Government to protect him from further damage; and your petitioner, as in duty bound, will ever pray. Dated this 22nd day of June, 1885. Eobeet Gawn. Witness —Keith Eamsay, J.P.

The Undee-Seceetaey for Public Woeks to the Chaieman, Public Petitions Committee. Ee Petition of Bobert Gawn (No. 84), claiming £203, Costs of defending the Case of Shaw versus Gawn. Sib,— Public Works Office, Wellington, 10th July, 1885. In reply to your letter of the 3rd instant, I have the honour to enclose for your information a report on the above-mentioned matter, as requested. The petition under notice is returned herewith. I have, &c, The Chairman, Public Petitions Committee, C. Y. O'Connoe, Parliament Buildings. Under-Secretary for Public Works. P.S.—I would also beg to refer you to the judgment given on this case by Mr. Justice Williams,* which seems to me to set forth the matter very clearly; and also to a memorandum of Mr. Blackett's, a copy of which I enclose.! These, though at first sight being apparently somewhat in conflict, really, I think, maintain the same principle of law—namely, that the plaintiff was bound to receive the water in his drain, but not anywhere else.

* Eor copy of judgment see enclosure in Messrs. Macassey, Kettle, and Woodhouse's letter of 30th December, 1884. t See Mr. Blaokett's memorandum of 2nd February, 1885, printed on page 4.

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[Enclosure.] Copy of Eepoet on Petition of Eobeet Gawn (No. 84), claiming £203, Costs of defending an Action brought against him by John Shaw.—Compiled from reports. In answer to Paragraph 1 of Petition : These facts are not disputed. In answer to Paragraph 2: While admitting these facts, it should be stated that before the Otago Central Eailway was constructed the stream frequently overflowed its banks in times of flood, and rendered the lands referred to more or less swampy. In answer to Paragraph 3 : In the construction of the Otago Central Eailway the stream was not interfered with; it still flows along the same bed as it did before the railway was made. The railway has had the effect, however, of preventing the stream overflowing its banks in times of flood on the side adjacent to the railway, and is thereby beneficial to the adjacent land. The water thus prevented from overflowing remains in the creek, and is discharged into the drain intended for its reception made through Mr. Gawn's property, with the consent of the then owner, long before the railway was constructed. The water was thus legally placed on Mr. Gawn's land in accordance with the law of drainage. It was therefore Mr. Gawn's duty to discharge the water in a legal manner upon the property of the next adjoining owner; and, because he disposed of it in an illegal manner, Mr. Shaw, the next adjoining owner, recovered the damages mentioned in the petition from Mr. Gawn. In answer to Paragraph 4 : The previous paragraph shows what is meant by the water being concentrated, and collected in the stream. In answer to Paragraph 5: Mr. Shaw appears to have been clearly of opinion that Mr. Gawn's action in the matter was the cause of the damage done; otherwise it is to be inferred that he would have laid an action against the Government and not against Mr. Gawn. The result of the trial shows that his opinion was correct. In answer to Paragraphs 6 and 7: The report of the judgment delivered by Mr. Justice Williams very clearly shows that the verdict given against Mr. Gawn was on account of his own action in enlarging the drain so as to make the water therefrom overflow on to the land of Mr. Shaw; and, as the Government is not responsible for the acts of Mr. Gawn, it does not appear that it is in any way called upon to recoup Mr. Gawn the amount of any costs or damages which he may have been compelled to pay to Mr. Shaw. In answer to Paragraph 8: This fact is not doubted. In answer to Paragraph 9 : The report of the matter in the possession of this department agrees with the facts stated by Mr. Justice Williams as referred to in Mr. Gawn's petition. Wellington, 10th July, 1885. W. S. Shoet.

Eepoet of the Public Petitions Committee of the House of Eepresentatives on the Petition of Eobeet Gawn, of Otago. The petitioner states that he is the owner of land in the East Taieri District; that, owing to the construction of the Otago Central Eailway, the floodwater has been prevented from flowing in its natural course, causing it to flow in large quantities upon his land. He prays that the sum of £203, expended by him, may be paid to him by the Government, and that steps may be taken by the Government to protect him from further damage. I am directed to report that the Committee are of opinion that the petitioner has no claim against the Government. E. Tuenbull, House of Eepresentatives, Wellington, Chairman. 22nd July, 1885. [Approximate Cost of Paper.— Preparation, £1 Is.; printing (1,225 copies), £1 la. 8&]

By Authority: G-boege Didsbuby, Government Printer, Wellington.—lBBs.

7

H —37.

OTAGO CENTRAL RAILWAY PLAN SHEWING ALLECED DAMAGE TO SHAWS PROPERTY EAST TAIERI