The Courts.

Alexandra Herald and Central Otago Gazette, Issue 410, 17 March 1904, Page 5

The Courts.

WARDEN S COURT, CLYDE, Saturday, March 12th. (Before F J Burgess, Esq, Warden.) Special Dredging Claim. Dunstan Lead Gold Dredging Company, section 49, Block VII, and part of section l"9i Block I, Leaning Rock.—Adjournment granted on application of Mr Hutton, who stated that the manager of the company had not returned from Dunedin. Vincent County ouncil (Mr Hatton) v Robertson, —Interfering with Clyde water race. Defendant pleaded guilty to taking the water, but said that he had not made the cuts in the race. He thought the amount of damage fixed (£2) was excessive. —judgment for £L damages, with-costs 11s. MAGISTRATE’S COURT, CLYDE. Saturday, March 12th, • (Before F J Burgess, Esq, S.M.) Stock Department v D M’Lean.— Charged with failing to keep down rabbits on his land.—After hearing evidence, defendant was convicted and fined £3, with costs 15s. Vincent County Council v H Thomas.—Charge of creating a nuisance by leaving fish near the . county road at Chatto Creek.—Convicted and fined 10s, with costs £1 Bs. H Mollock (Mr Bartholomew) v Jas Carline; claim, £5 12s fid, for goods supplied.—Judgment by default for amount claimed, with costs 13s. Same v L Carline; claim, £1 10s Bd.—Judgment for amount claimed, with costs 4s. MAGISTRATE’S COURT, ALEXANDRA. March 14th, 15th, and I6th. (Before F J Burgess. Esq, S M) UNREGISTERED DOGS Frank Young, Collector of Dog Tax v H M‘Elwee; charge of keeping an unregistered dog.—Fined 10s and costs 7s. BREACH OF POISONS ACTW Murray, registered druggist, was charged by the' Police with (1) having sold poison without being registered as a vendor of poisons under the Poisons Act; (2) with having sold poison without taking the signature of the purchaser at the time ; and (3) with failing to produce his Poison Register when asked for the same by Constable Dale, Defendant, who pleaded guilty, said he had never been aware that it was necessary for a registered druggist to be also registered as a vendor of poisons. When Constable Dale called to inspect his Register, the book had been inadvertently mislaid, but as soon as it was found be allowed the constable to inspect it. Regarding the second charge, the person to whom he sold the poison was known to him personally, and he was satisfied as to what use the poison was to be put. The signature was obtained subsequently. He was always very careful in the giving out of poisons. His Worship said he had no option but to enter up a conviction. Defendant would be fined the minimum allowed by the Act—viz, 20s on the first charge; 10s on the second ; and 20s on the third, with costs in each case. COMPLAINT. In the previously-called case of the Alexandra Borough v James Rivers (a complaint that defendant had polluted the water-course, supplying the town, with impure matter from a dam), His Worship held he had no jurisdiction to hear the case. Defendant was allowed £1 Is, solicitor’s fee. AFFILIATION. Philippa H. Hesson charged William Hesson with failing to provide for the maintenance of complainant’s illegitimate child, of which she alleged defendant was the father. Mr Bartholomew appeared for complainant, and Mr Hutton for defendant who pleaded “Not guilty,” The complainant, in the course of her evidence, said the child was born bn January 3rd. Witness recounted several instances of intimacy with the defendant from March 14th to August 23rd, at Hesson's farm and at Bald Hill Flat. She signed a paper with drawing the allegations of paternity against the defendant, but she only did so on the strength of promises made by defendant. Several witnesses were examined, in support of complainant’s case. The defendant, in his evidence, denied in ioto the allegations made by complainant as to improper conduct with her, though he had visited her house on several occasions. Complainant signed the • piper, referred to of her own free will/ and inMojng so was not unduly influenced by witness. Several witnesses were j examined in‘< support of defendant’s case. The evidence as to defendant’s statements on being charged with paternity ‘was contradictory. The hearing of the case occupied the greater part of Monday, and on giving judgment His Worship said, inter alia, that he did not attach much importance to the evidence given against complainant’s character,. Thefe was l nothing to satisfy him that she had' acted in an improper way with other men at the farm, though she might have been indiscreet. Considering the relationship between the parties, there was nothing improper in defendant visiting complainant’s house, and there was no evidence to support the contention of improper conduct thereto® procreative act, however, must have taken place previously at the farm, and the evidence regarding what took place subsequently was not material. Complainant’s evidence was given in a remarkably consistent manner, and it was unlike y she could tell such a long story without some inconsistencies or contradictions. There

was, However, '-rib '/Corroborative evidence of any- kiricf to""support -her evidence. He; would therefore; •dismiss the information, without prejudice! Defendant was allowed £l ls solicitor's: fee. ~-^*^r.*?\*?:?-*f;\ OYCXE'EIDINa ON FOOTPATHS*T ' *VOn the information of the Inspector of Nuisances, Charles B Allen, J Stark, S Irwin, and H Excell were each fined ss, with costs 7s, for riding bicycles on a footpath within the Borough of Alexandra. ILLEGAL POSSESSION OF OPIUM. Collector of C ustoms v Chow Kee.— Charged with having illegally in his possession four tins of opium, suitable for smoking purposes. Mr Bartholomew appeared for the Collector of Customs ; and Mr Hutton for defendant. Dr Gregg stated that the opium in question was of a kind suitable for smoking. Evidence was given by A Budd (who stated that the parcel in question was delivered into Chow Kee's private box at the post office, and was addressed: to «' Mr Bill "), and Constable Dale, who gave evidence as to seizing a parcel containing four tins of opium which Chow Kee had taken from his post-office box. For the defence, Chow Kee stated he had no knowledge of the contents of the parcel, which was addressed to Mr Bill. Letters and parcels for various persons were left at his board-ing-house. Did not know who Mr Bill was. Defendant was convicted, and fined dS4, with costs amounting to £4. old Age pensions. The applications of several old age pensioners for a renewal of pensionwas granted. WARDEN'S COURT, ALEXANDRA. March 14th, 15th, and 16th. (Before F J Burgess, Esq., Warden.) SUIT. The Eureka Dredging Co v Golden Beach Company.—Suit for JSOO damages caused by depositing tailings on complainant's claim, and in a channel granted to them. The .complainant company also prayed for an injuction restraining defendants from a further continuance of the operations complained of.—The defendant company put in a counter claim for ,£700; damages for alleged encroachment on their ground by the Eureka Company. —Mr W C Macgregor (with him Mr Bartholomew) appeared for the Eureka Company; and Mr W A Sim (with him Mr Hutton) for the Golden Beach Company, The hearing of this case occupied the greater part of two days, after which His Worship reserved judgment. A report will appear in next issue. BOROUGH OF ALIXANDRA V. JANES RIVERS. In this previously-heard case, his Worship now delivered judgment as follows: In this case the Corporation of the Borough of Alexandra sues the defendant James; Rivers for damages arising out of a breach of ■ covenant contained in a contract entered into between them with respect to the sale of an interest in certain dams and waterraces near Alexandra; The evidence shows that the said Corporation, desiring to ob tain a supply of water for the use of the inhabitants of Alexandra, entered into negotiations with Mr Rivers for the acquisition of an interest in his water-races and dams, and on August 22nd 1902, Mr Rivers executed a deed of assignment to the Corporation by which he conveyed to them one undivided tenth share in the said dams and races, so as to secure to the said Corporation one sluice head of water fit for domestic use. By this deed he bound himself, intmr alia, as follows : '• In particular the assignor shall at the expense of the assignor Keep the said dams and races in good and substantial repair, order, and condition, as to the said races from the intake or respective intakes thereof to the point where the.said head is taken by the Corporation, and shall keep the said races at all times carrying at least one Government head of water fit for domestic use to the said last-mentioned point, and shall employ an efficient caretaker whose duty it shall be, inter alia, to watch over the said races, aud so far as possible to keep the same free from ice ana other obstacles and to repair breaches, but so that the Corporation shall be under no liability to the caretaker in any shape or form and whether for wages, accident,? or otherwise. If the said races be frozen up or broken away by flood, the assignor shall not be under any liability during the time of such freezing up or breach by reason only of the non-flow of the said head of water, but shall take all reasonable means to keep the races free of ice and shall forthwith repair the same after any breach thereof or injury thereto whether by the act of God or otherwise,". On the 19th January last the defendants by his servants cleaned out one of the dams, known as the Stockyard dam, and for the greater part of the day stopped the flow of water in the race, Part of the sediment which had accumulated in the dam, containing very foul matter, was allowed to mingle with and contaminate the water flowing down the race for the use of the Corporation, and, as a consequence, the water in the race was. rendered utterly unfit foi domestic use for three days. On the morning of the 20th the valve admitting water to the Corporation reservoir was stopped without authority by John O'Dowd, one of Mr Rivers' employees, and was not re-opened until the evening of the same day: Until disturbed by the action of the defendant's servants, the foul matter referred to lay in the bottom of the dam, and did not appreciably pollute the water "flowing over it; By the necessitated stoppage of the flow of water in the race while the work was going on, and by the.subsequent defilement of the water caused by allowing some of the off en sive accumulation of the dam to be carried down the race, the corporation was deprived of the use of the water for three days. The greater part of the water and contents of the dam was allowed to escape down a eutly by means of a bye-wash or short channel, and j beyond that point did not flow down the I course of the race; but a part of the sedi- ' ment consisting of silt containing a large proportion of foul and offensive matter was purposely turned down the race with the object of being washed into, and so filling up and repairing cracks and fissures in the race, said to have been caused by the severe frosts of iast winter, and through which, the evidence shows, there was a considerable leakage of water. There was much contradictory evidecce as to whether silt of the J kind liberated from the asm was of toy use

whatever fpr this pprpose, but the weiguu uf my"opinion, decidedly in* favour -of its efficacy That the matter? wmcb was sent down the race and which* was found in the reservoir and settling tank of the Corporation was so foul and offerisivei as to render the water quite unfit for domestic use, is proved beyond question by; the evidence ,of several witnesses, particularly of Dr Ogstoh, District Health Officer, and Dr Gregg,, of Alexandra, medical practitioner. The plaintaffs allege other occasionshi the month of January on which the waterf was not flowing in the race. If on any other occasion (other than those which were the result of natural causes; there was a to supply the stipulated quantity of water, T am satisfied it was without Mr .Rivers' knowledge, and was not knowingly ,or wilfully permitted by his servants, though that of! course would not relieve Mr Rivers of his' : liability. The evidence is, however, by no means definite as to any occasion on which? this occurred beyond that connected witfcr the emptying and cleaning of-the dam, and; I have therefore only taken into account the incident connected with that special period.It is claimed by the defendant that the cleaning of the dam,'with the consequent* stoppage of the supply of water "to the Corporation reservoir, was a necessary and justifiable proceeding in view of his duty to keep the race in good order and condition, and that the act of permitting the silt with the contaminating matter to run down the race' was a reasonable and workmanlike thing to do, as being the only known means available for stopping the leakage from the race. Mr Rivers appears to have consistently held andbeen influenced by this view. On the 13th of January he wrote a letter to the Council, notifying them of his intention to do the act J now complained of, and suggesting they' should make arrangements accordingly. The Council expressly refused to accept his suggestions or permit him to do as he proposed, holding him strictly to the terms of his agreement. Notwithstanding their refusal Mr Rivers proceeded to carry out and carry out his expressed intention, believing, I am satisfied from all I have heard during the progress of the case, that he was within his right, and acting, as he supposed, for the benefit of all concerned. I think he was mistaken as to his rights and that he entirely misconceived his position. He had; bound himself by his contract with the Corporation to supply them constantly with one head of water suitable for domestic use. He now finds it. if not impossible, at any rate extremely difficult, under all circumstances, to do so. But if a man enters into a contract to do a certain thing, and overlooks or fails to recognise a difficulty which may arise in fulfilling the contract, but which; might have been foreseen and provided against by express stipulation, the law will not relieve him from the obligation he has undertaken. This is not a case of physical impossibility of performance apparent on the face of it that would void the contract. It Is not even a case where impossibility has. arisen since the contract was entered into There, no doubt, is a serious difficulty in carrying out; the covenant in its entirety. It is not however insuperable. Evidence was given that by making a bye-race from a point on the main race a short distance above the dam and carrying it parallel, or nearly so, with the race to a point below the bywash already referred to, a supply of pure water might have been maintained during the time the dam was being cleaned out, while the contents of the latter could have been discharged without affecting the Borough supply. The only objection urged to this course, beyond its expense, was that the water, flowing through a newly-cut race, is certain for some time, variously estimated from a few days to more thaffa week, to be ,more or less charged-with earthy sub- | stances. The matter of the expense is outi si<y the question; for Mr Rivers, having ! undertaken to supply constantly a head of water fit for domestic use, it is to be presumed that he has taken into consideration the probable cost of providing means for so doing. If he has not done so then it is an oversight which will not relieve him from his undertaking. As to the pollution of the water by the soil which will find its way into a new race, it is questionable if the presence of such earthy matter in suspension in the water would render it unfit fo?J domestic use; for, unless it were in great abundance, it could have been got rid of by settlement in the tank provided for that purpose without any deleterious effect upon the quality of the water. If, however, the presence of this earthy matter should render the water unfit for use then it is incumbent on Mr Rivers to obviate this result, either by constructing this by-race beforehand and using his own water to tighten it up, or by some other means. The earthy matter in suspension carried by a small stream of water running through this side race would probably not be noticeable it the water were mingled with a much larger volume flowing in the main race. If this should prove impracticable, Mr Riveis must adopt such means as his ingenuity suggests to carry out the arrangement he has entered into. The same observations apply to the act of using the foul and unwholesome contents of the dam to fill up the leaks in the race, It is urged that it is impossible to stop the leakage in any other way. If so this should have been foreseen by i Mr Rivers before entering into the contract and provided for in the deed; It is, however, difficult to reconcile the statement that there was no other material available for this purpose with the evidence of several witnesses that a newly-cut race would be so charged with earthy matter in suspension as to be unfit for use.

Counsel for the defendant contends, however, in opposition to the view of the law which I have expressed, tha,t in determining whether there has been a breach of covenants relating to the use of water every stipulation must not in all cases be literally construed ; that implied qualifications and exceptions are necessary to carry into effeot the intention of the parties, to be collected from the whole contract; and that a mere temporary suspension of supply or deterioration in quality, not manifesting a deliberate purpose to withhold the water or impair its purity, would not amount to such a neglect to furnish water or deliver it fit for use, as would constitute a breach of the contract. To have that effect it must be a substantial refusal or neglect. In support of §»is argument he refers to decisions in American Courts as quoted by Augell in his work on water courses (7th iSd, p 437) —(See Salmon Falls Manufacturing Coy v The Portsmouth Coy (46 N.H, 249), Winipissiogee Lake C and W Manufacturing Co v Perley (46 N,H. 43) and The Mill Dam Foundry 0 Hovey (21 Peck 417) ). Reference to the reports of these cases shows that the implied qualifications and exceptions referred to relate to interruptions in the use resulting from the operation of natural causes or in some way consequent upon them. It seems only reasonable to suppose that in a contract where the subject matter, as in the case of running water, is in a special sense the creation of nature and directly subject to its operations, and where there is consequently a certainty, or a very strong probability, that conditions beyond human control will arise at uncertain intervals, rendering at any rate for a time, the performance of the contract impossible such contingencies and possibilities must have been in the contemplation of the parties at the time. A reservation, therefore, with respect to liability for any suchrinevitable breach must, if not definitely expressed, be inferred from the knowledge of the parties. If in. this case it had been shown that the failure to supply the water or its impure condition was attributable to such causes I do not think tbe plaintiffs would be entitled to succeed. But the cause of complaint was brought about by the direct agency of the defendant, fiia aot wm clvUbvnteatod

premeditated and was not forced upon him .by.; any natural exigenoy. The neglect to deliver constantly a sluice head of pure' water cannot be attributed to the operation of physical causes except in an indirect and very remote degree, that is to say by the lodgement of sediment in the dam. This was however something that both parties must I have known or should have known would oo- j cur and; that it would neaessitate the occasional emptying and cleaning of the dam; but at'affords, no ground for oonoiading that each party must have contemplated as a consequence an intermission in the supply of water or a deterioration of its quality. If Mr Rivera, with a knowledge of these matters, undertook to have a sluice head of water fit for use constantly running in the race and did not stipulate for any exceptions i or qualifications the presumption is obvious that in his own mind he foresaw the means by which it could be accomplished; and it is only reasonable to suppose that in the absence of any representation to the contrary the other party relied upon his being able to do so. When we take into consideKation the purpose for whioh this water was acquired and the use to which it was to be put the neoessity for a .constant and more especially a pure supply is manifest. Moreover this purpose and use and the consequent need of a strict compliance with the stipulations as to supply an& fitness must have been present in the minds of both parties j and if under any circumstances a relaxation or waiver of this stipulation was to be permitted it was Mr Bivers' duty in his own interest to seesuoh provision was made. Having failed to do so the Court cannot relieve him of his responsibility by reading into the written contract exceptions and qualifications not, contemplated by the parties and notjustifiad by the circumstances, for "when the party by his own contraot creates a duty or charge upon himself he is bound to make it good, if he may, notwithstanding any aocident by inevitable necessity beoanse he might have provided against it in his contract." (Paradene v Jane, Alyn 28)— In this ease the difficulty falls far short of being an accident of inevitable neoessity. More than this it is to be noticed that provision is made in the deed* that any breach of the contract caused by the freezing up.of the race or its being broken away by flood shall not bring the assignee under any liability. On the authority of the maxim Mqprwwn faeit cesmro temtwn it appears to me that the fact of this exoeption being deliberately made precludes the idea that it was the purpose of the parties to imply pther.eyoeptions. I think therefore the breach of contract has been proved and the plaintiffs are entitled to damages. No aotual damage haß been proved and the judgment therefore can only carry nominal damages. Under the circumstances I do not consider the damages claimed are more than nominal and I give judgment for that amount with oosts. With regard to the injunction asked for I am of opinion that this is not a case in which an injunction should be granted. What is sought is practically to enforce the carrying out of a contraot which is positive in its terms, and whioh moreover would extend over an indefinite period. The breach of the covenant complained of, though,a serious infraction of the agreement does not amount to a substantial repudiation of the contraot, It seems to me, however, that a breach of a contraot to supply water is a matter which could not be altogether compensated by a money payment, for it by no means follows that with the money water could be obtained elsewhere; and the Court I think could, and probably would, restrain the defendant from persisting in any specific act which threatened a continuing interference with the assignee's rights, or from putting into effebt any contemplated purpose likely to do a lasting injury. \ I do not think this is a case in in point. Injunction is not a compensation for a past injury, it is a means for preventing a future wrong, and there is nothing in the evidence to lead me to suppose it is the defendant's intention after judgment in this case to repeat these acts. The breach complained of was only of short duration, and was in no sense of a continuing character, and what inquiry was caused ceased with the act. The injunction asked for is refused. Judgment is given for plaintiffs for the sum of £2 and co3ts £l2 Is 6d. Mr J. R. Bartholomew appeared for plaintiff and Mr 0 0 Hutton for defendant.