The Courts.

Alexandra Herald and Central Otago Gazette, Issue 426, 16 June 1904, Page 5

The Courts.

m MAGISTRATE'S COURT, ALEXANDRA Monday, June 13, 1904." (Before F J Burgess, Esq., S.M.) POULTER V. SOHAUMANN. | In this previously-heard case, His Worship now delivered judgement as follows : The evidence in this case as to the existence of the nuisance complained of Is very contradictory, bnt that in favor of the contention that a nuisance did exist to my mind largely preponderates. lam satisfied on a review of the whole evidence that the refuse water running through the drain of the defendant was, on account of the natural formation of the land over which the street runs, unable to flow freely away; and, lying in the gutter and on the stoeet itself, became offensive to the senses, and, as proved by the testimony of Dr Gregg, dangerous to the health of the neighbourhood. This is suficient, in my opinion, to constitute a public nuisance. Mr Bartholomew urges that though this might be a nuisance elsewhere, it cannot be so regarded in Alexandra, under the circumstances disclosed by the evidence. That shows that it is a practice that very widely obtains, for the residents of the Borough to discharge the drainage from their residences into the public streets, and that in the absence of any system of drainage in the town, this custom is tolerated by the Borough Council and its officials, I think, however, that notwithstanding the existence of these facts a nuisance was created. The act done by the defendant was directly in opposition to law, being forbidden by the * Municipal Corporations Act,' * The Public Health Act,' and of the Bye-Laws of the Borough itself. That others were guilty of similar acts, did not render this one any less a nuisance if in its essence it was one. Nor did their acts cease to be nuisances only beoiuse they were done by many, or because so action for damages had arisen in respect of thesu Probably in the majority of cases, it would be difßoalt to fix the damage upon any particular person, as the drainage from many nooses appears to mingle in the channel of the street. There is, however, one feature that distinguishes the defendant's action, and that is that his drain was run into a street from which there was no escape for the water. In other parts of the Borough means are provided for the drainage water finding Its way along the water channels into the river. To entitle the plaintiffs to succeed in this action it most be shown that in addition to the injmry which they may have suffered in tommoa with the public at large they have suffered special, peculiar, and substantial injury themselves. The evidence of the plaintiff, George Poulter, is that his house was rendered uncomfort ble by the smell from the drain, and, that soon after the drain became in use his wife began to suffer in her health. Is it true that she is not a strong woman, and has for years past been gobjeet to occasional illnesses, but, for some considerable time before the construction of the drain, her health had been good. The Change in her condition for the worse became to marked from this time, that the conclusion was imsistible in the mind of her husfeand that it was caused by the emanations from the drain. Dr Gregg's evidence is particularly strong, and he unhesitatingly attributes thtj illness from which Mrs Poulter era* suffering when he visited her to the affects of bad drainage, and from his own •bserration he ascribes it to emanations from defendant's drain. In view of all the evidence, I can come to no other conclusion than that to a very large extent generally, sad entirely with respect to the ailments for which Dr Gregg treated her, the drainage from the defendant's house was responsible. Ido not agree with Mr Bartholomew that the defendant's - drain was not the proximate •ause of the illness—that the actual cause was the accumulation of water in the street for which the defendant was not responsible, that being the result of the absence of any provision by the Borough Council to carry away the refuse water discharged from the drain pipe The defendant knew the condition of the road and the flooding of the street that must unevitably follow the discharge of water from his drain. The Borough Council was under no compulsion to make a way for the water to escape more especially as they had declined to give permission for the construction of th - drain The condition of things in the street caused *y the outflow from the defendant's drain ens the direct and immediate result of the defendant's action, and the proximate cause •f the plaintiffs injury, and they are therefore entitled to damages. Uadev the oircumstances of the case, taking into consideration the absence of any eygtem of drainage in the Borough, the almost universal custom that obtains of drainiag into the streets, the practical acquies «Jbee in this condition of tilings by the Corneal and its officers, and the difficulty eworn to by the existing in disposing of the drainage from nis house by flaking holes or otherwise, 1 am not disposed to award damages on a liberal scale. At the same time I cannot overlook the fact that the plaintiffs remonstranoe to the defendant with respect to the nuisance were cjntirely disregarded. The plaintiffs evidence is that the offensive smell arrising from the drain rendered Us home uncomfortable, that it did in fact Interfere with "the ordinary comfort of haaan existence "in the house. I think he %ac nude the moat of whatever incont(sjaJtanoa he did experience and though S have no doubt be bad in this respect some ground for complant I am not inclined to •ward damages in respect of it. With regard, however, to bis wife's illness, and the consequent expenses he has been put to, | must award damages. I do not think the fact of her being a woman of somewhat delicate constitution alters the position. The entire expense entailed upon him was, he sajf. as follows:—Doctor's fees, 17s 6d; aaditsace - in the house rendered necessary sy the illness of his wife, £6 ; expenses insomd through sending his wife away by the doctor's directions, £l6. With regard to the claim of £6 for assistance in the house, Vam not satisfied that the whole of this expense was due to illness caused by the ejHdn. Mrs Poulter has been in the habit hem time to time of employing help in her hnstbold work, and judging by the evidence there appears to me a strong probability that some help would have been obtained daring this period even if there had been no drain. As to the expenses of the wife's {earner from home, no particulars as to the Cost of board, etc.. were given, but plaintiff elates that bis board and lodging cost him gl per week: That would, therefore, it seems to me, be a fair amount to allow for Sirs Poulter's maintenance—say nine weeks at £l, *• which must be added the actual of traveling. Besides this, she is entitled to compensation for the pain and suffering she has undergone. The claim for damages on the ground that she will be f r some time unable to perform her household duties I do net allow, as that, in my opinion, is already met by the payment of her expenses while absent from home for the restoration of her health. Cndei all the circumstances of the case I have deoided to allow the plaintiff the sum of £23 as compensation for all the loss and injury sustained by reason of the adsance, and I gire judgment accordingly tar that amount. The costs of the case were £7 I3s. made up as follows :—Costs of Socrt. £2 2s ; Solicitor, £2 12s ; Witnesses, fglsc. SO HE woman who doe her own cooking f is alway* satisfied with the quality of *« Cook o' the Worth Tea."

CIVIL OASES. ) A Kilgour v, John Macdcjnald; claim, £A 6s 9d for goods supplied. Judgment by default for amount claim d, with 13a costs. James Neiper v. W Vallance ; claim, £8 for meat supplied.—Judgment by default for amount claimed with costs, £1 3s 6d.