H.—B7.

[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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