The Courts.

Alexandra Herald and Central Otago Gazette, Issue 405, 11 February 1904, Page 5

The Courts.

MAGISTRATE'S COURT, CLYDE. Saturday, Febbdaby 6th. Refr.re F. J. Bargeas, Esq, S.M.) /.. S Spain v R Holden, jun ; claim £2/ damages done by defendant's dog to plaintiff's sheep.—Plaintiff was nonsuited. ' Vincent County Council v M Keliher; damages for interference with County water race.—Plaintiff's nonsuited, without costs. Inspector Taylor v C Attfield; charge of failing to keep rabbits down. —Defendant convicted and fined £5, with costs 78 6"d. Same v A Oliver; similar charge.— Defendant fined £l. Same v Broad (owner of a dredging claim on Earnscleugh Flat). —Defendant convicted and fined £2, with costs ?s. Same v M'Gettigan ; similar charge —Defendant fined £l, with costs 15s. Same v M'Lean—Adjourned till next court-day. MAGISTRATE'S COURT, ALEXANDRA. Monday, Febbuaby, Bth. (Before F J Burgess, Esq, S.M.) F Young,' Dog Registrar Borough of Alexandra, v C M'lntosh; failing to register a dog.—Convicted and fined 10s, with costs 7s. Same v Alfred Larsen.—Defendant convicted and fined 10s and costs 7s; - The case of F Young, town clerk, v Jas Rivers was called." The information alleged that defendant did on December 21st suffer foul matter to flow into a water race, being part of the Borough waterworks, contrary to the provisions of the Municipal Corporations Act. Mr Hutton, for defendant, contended that the Magistrate had no jurisdiction to hear the case, as a question of title was involved, which would be dealt with in the case that was to come before the "Warden's Court. Mr Bartholomew, for plaintiff, said the charge was a serious one, and the section of the Act declared that promust be taken summarily. No question of titles was involved, and he submitted the Magistrate had jurisdiction to hear the case. His Worship said he would defer the hearing of this case till the case in the Wardens Court had been decided.

WARDEN'S COURT, ALEXANDRA; Monday, February 3th, iso&, (Before F J Burgess, Esq, Warden.) ADJOUBNKD FBOU PBEVIOUS COUJBTS. Special Dredging Claims. A Williamson, Manuherikia River and Beach.—Adjourned to March 14th. E Appleton (Mr Ryan for applicant), 75 acres, Galloway Flat.—Objection lodged on public grounds.—Adjourned, pending completion of survey, till March 14th; Mr Macgeorge appointed surveyor in place of Mr Blair Mason, who is interested in the appli. cation. J C Thomson, on the. Lower Crawford's, 100 acres.—Same decision as above. Robert Lee, east bank. Manorburn, 100 acres —Same decision as above.. H F Norman, Galloway Flat, 100 acresSame decision as above, R T Wheeler, junr, Galloway Flat, 50 acres.—Same decision as above. Thomas M'Math, (Mr Ryan) section 33a, Block vi, Tiger Hill, 100 acres.—Granted for 42 years, James Rivers (Mr Hntton), section 34, Block VI, Tiger Hill S D,—Granted for 42 years. Water Race. George Simpson and anr, from Edwards' Gully.—Granted conditionally. Amalgamation. Last Chance Co, amalgamation of special alluvial claims 609 a, 251 A, and 144a.—Adjourned to March 14th. NEW BUSINESS. Residence Sites. e~ Wm H Kilgour, west side road —Adjourned to March 14th. tps§j|| Johanna 01 iver, 4-acre, Poverty Adjourned to March 14th. :""_? Annie Miskall, £-acre Stockyard Gully.— Adjourned to March 14th. Patrick Lewis, 1 acre, Springvale.—Objected to by the Alexandra Poultry Com< pany.—Adjourned to 14th March for furfefief' information. BHB

Dry Race. 3f New Golden Beach Co, Conroy's GullyGranted, provided Lye Bow's water-right is not interfered with. Protection. P Carroll and anr, 6 months to licensed holding 224/97 A—Granted for four months. Golden Beach Co, 3 months, to water race 5624—Granted. Application to Carry Water. Golden Beach Co, in water race No 5624 — 1/12/94 in new water race—Granted. Water Races. John Symons, from Station Gully—Adjourned, Catherine Thompson, from Edwards' Gully—Granted conditionally. John C Simes and anr, from Gorge Creek —Adjourned. Special Alluvial Claim. John C Simes and anr, section 24, Block in, Cairnhill—Preliminary hearing disposed of. Final hearing fixed for March 14th. Surrender Absolutely, George H Paul, residence site license 687a—Surrender accepted. J Drummey, surrender residence site— Surrender accepted. SUIT. frank Young (on behalf of the Alexandra Borough Council) v. James Rivers.—The statement of claim set forth that defendant had failed to keep his race at all times carrying at least one head of water fit for domestic use, in accordance with agreement made ; and claiming £2 damages, an injunction directing defendant to keep one head of water fit for domestic use flowing in the said race, and such other relief as to the court might seem fit. Mr J. R. Bartholomew appeared for plaintiff, and Mr C. C. Hutton for Mr Bartholomew opened plaintiffs case at considerable length. He said the matter before the court was one of the utmost importance to the wel-

fare and health of the people of Alexaudra, and he explained folly the particulars in connection with the agreement • and the carrying out of the •waterworks. The onus was placed on Mr Rivers to deliver a head of water.at all times, being only excused when the raca : waai frozen up or broken away by flood. Jfc would be shown that the water was turned off at different occasions, and that on January 19th Mr Rivers turned off the water and sent impure matter from a dam along the race, in the face of the Council's objection rJTher evidence of Drs Ogston and Gregg would show that the water was impure at that time. There was no justifiable reason for running the slime along the race, and the dam could have been cleaned out without stopping the Borough's supply. L B Grimstone, manager of the Bank of New Zealand, produced the titles of the water-races and dams in the names of James Rivers and the Alexandra Borough. Frank Young town clerk, sworn, baid, that owing to the water going off suddenly on January 19th, he visited the reservoir, and found there was no water in the race. He went up to the Stockyard dam next day with Dr Gregg, and inspected the race. The water was very dirty, and hid a disagreeable odour. The doctor took some samples of the water. On the morning of the 21st, he again visited the race, in company with Dr Ogston and the Mayor. The water flowing in the race was then still dirty, and smelt disagreeably. He produced letters that had passed between the Council and Mr Rivers. The guage box was put in in November. The total cost of the waterworks was about £B2OO. Gross-examined: He turned the valves at the reservoir when necessary. It was the dayman's duty to attend to the gauge box Mr Rivers complained in one of his letters that the box was not put in properly. He opened the valve on the 21st -and let the water into the pipes. The water was much discoloured. The guage box had not been very satisfactory, as it got blocked with thistles. The box was lowered about the end of January, and a cement bar put across the race. They couldn't get water on different occasions, because there was none there to get. He believed the full supply was now coming in. Re-examined: He turned the water on on the 21st to give the ratepayers water for irrigation. Dr Ogston, district health officer, sworn, said he visited the Borough reservoir on January 21st. The water in the reservoir was like pea soup. He went along the race about 100 yds, and found the water quite opaque and muddy. The debris in the settling tank contained worms and vegetable matter. The water was quite unfit for domestic use—either for cooking or washing.

Dr Gregg, medical practitioner, sworn, said he visited the race on January 20th, going as far as the Stockyard dam. He took three samples of water, which he examined. The first, taken from above the dam, was good drinkable water; the other two samples, taken from the rase below the dam, were of a dirty brown color, and had a disagreeable odour. Under the microscope he found in these deposits of silt and vegetable organisms. The water was quite unfit for domestic use. The pollution came •from the Stockyard dam, James Kelman, Mayor of Alexandra, said he visited the race on January 19, and found there was no water running to the reservoir. The water was running out of a bye-wash further up. There was a lot of silt in the race. Debris was being sluiced out of the Stockyard dam along the race. The silt had a disagreeable smell. Visited • the reservoir again on the 21st, and | |found tHe guage-box and settling tank jin a very filthy state. The dam could ihave been cleaned out without interfering with the town water supply. A. loop race could be made for £lO. f |Did not think the silt was of any use 13for repairing the race, .as the silt would } >gp through wherever water would. No ' juveaks were visible in the race. Cross-examined : Had no experience of races in rocky country. On the 21st dirty water was running into the reservoir. Clean water could not be sent down if the dam was not clean. The Stockyard dam would probably act as a settling tank. Re-examined: When the Borough settling tank was cleaned out it was not run into the reservoir.

Henry Schaumann said he had practical experience of water-races in rocky country. Witness corroborated the evidence of the previous witness as to the state of the race on January 19th. Above the bye-wash the race was full of stinking mud, from 4in to 18in deep, He took a sample of-the water (pro* duced). On Feb. 4th the water was cleaner, but the race still contained a lot of the debris from the dam. Saw no serious leaks in the race. The silt would not fill up cracks in the race. The dam could be sluiced out without interfering with the Borough supply. Cross-examined: There were small leaks in the race. Could not say if there were fissures. The debris from the settling tank was run down the gully, but filtered through gravel before reaching residents lower down. Re-examined : The debris that went out of the bye wash in Rivers' race went down the same gully. Edwin Appleton said he had had 15 or 16 years' experience in water races. He last saw the on;Feb. Ist, when the 'pretty thick. There was 18in oflalt in the settling tank. Silt would not repair. a>ieak in the race. The dam could ;bave been cleaned out without turning off the water, by means ofVa bje-race. Cross-examined; The water would

not be as dirty when the dam was low as it would be when cleaning out the dam. He put a cement bar in the race so that the guage-bbx would take the last 'head of water. The bar would cause silt to run into the reservoir 1 The Borough did-no*; object to the dam , being cleaned out, but to the water ' being turned off, < ■ Re-examined: The dam might have been cleaned out before the water got so short. . John Pattison said he had had over 40 years experience of water-races. He .inspected Rivers' race on Feb. 4tb, and saw a slight sweating in places. Cracks made by last winter's frost ought to be apparent before now. Slime was no good to tighten eracks. Cross-examined : Have repaired races in similar country. Have tried silt, but found it no good. Re-examined: Saw sweating in Rivers' race after it was said to be tightened. James Travis, Borough dayman, said there was no water in the race on several days in January. On the 19th it was cut off and turned on again on the 21st. On the 22ad and 23rd the water was not clean. Cross-examined: Before the cement bar was put in, he used to put stones in the race to turn in the water, but when the water was turned on full again the stones were swept away. The box was occasionally blocked with thistles. There was no water running past on the mornings of the 19th and 20th.

This closed plaintiff's case. Mr Hutton opened defendant's case at considerable length. The question was : did defendant make a breach of the agreement on Jan. 19, 20, and 21 by cleaning out the dam and sluicing the silt along the race ? Learned counsel quoted from " Angel on Watercourses," showing that all agreements in connection therewith must not be construed literally, and, in support of the contention he quoted the case of Salmon v, the Mill Dam Foundry. It would be shown that it was necessary to clean out the dam and also to send the silt along the race to stop leakage The work was necessary, and defendan, had done all in his power to prevent evil effects accruing. George Campbell, manager for Mr ltivers, said he knew the water-race in question, he having assisted to cut it. He described the race, which had an average fall of 20ft per mile. The speed of the water caused it to be slightly discolored. Ip was customary to clean out the Speargrass dam about Christmas time* This year they were careful to let no silt pass the dam, to allow of clean water going to the town. Previously the silt was sent along the race. Last winter the frost was unusually severe, and caused fissures in the bed of the race. The upper portion escaped, owing to being covered with snow. It was decided to clean out the dam, and let the silt travel along the race to fill up the cracks. The water was turned out at a byewash above the borough reservoir, and only the top*stuff in the dam was allowed to come along the race. It was running for two hours only. The effect had been to tighten the race, and this was the only way of repairing it. Previously, it was necessary to turn on to 2 heads to allow of one head reaching the Borough reservoir, but now three-quarters of a head less would do. There was no suitable fine stuff along the race to put in. If the Speargrass dam had only been built to 30f t, as stipulated, there would be no water at all now. On the 20th, one of his men closed the Borough box down, as the water was dirty. The water was fairly clean on the night of the 20 th, but next day when the full supply was put on it run dirty for a while. The water was always running past the Borough intake, except on three occasions, but the guage box was not properly fixed to take it. It was impossible to regulate a head of water strictly. It would take longer for the water to clean in the suggested ioop race than to clean out the dam. They had done their best to supply the Borough with clean water,

Cross-examined : There was no experiment about sending the silt down the race. He disagreed with the witnesses who said that silt was no good to fill up cracks. The water was drinkable on the 21st, and he disagreed with those who said it was not. Their idea was, firstly, to clean out the dam, and secondly to fill up the crevices. To the Bench: The bye-race spoken of would be about 20 chains in length, and might cost from 30s to 40s per chain.

Edward Terry, Borough race-man, in his evidence said that silt would have a tendency to tighten up leaks. When a leak could not be discovered, dirty water was the best remedy, It would be .impossible to get a head of water steadily in the town, except the intake was constantly attended to. Cross-examined : It was possible to clean out the dam and supply water to the town at the same time, Could not say what a loop race would cost. John Bruce, miner, said he lived near Rivers' claim, The water was off only three or four times, when there were breaks. William Fawcett said he had experience in repairing water-races, Silt would have the effect of stopping leaks in the race. The Borough could not regulate a head of water with the present appliances. J N Robertson said be had experience of water-races at Mt, Criffel, where they successfully used silt to tighten up leaks in their race, which went through rocky country, T Wilkinson said that it was a common way of tightening races to run silt through them, i" John O'Dowd, miner, said the effect of running silt along the race had been to tighten up the leaks, He was in

Mr Rivers' employ* and they had at times done their best to keep the town I supplied with water. _. ', | J M ; Jackson gav> corroboiative j evidence. : - 7 s \ ' , x Jaihes;Rivers detailed the; circumsttncesin connection with hisarrange--1 ment withthe" Council, and in regard to the action he took before cleaning out the Stockyard dam, He had done all in his power to keep the Borough suppliecLwith water. . =";, . Counsel having summed up at length his Worship intimated that he would reserve his decision, which would be given nest court day. Z VivL&£