An Important Judgment.

Alexandra Herald and Central Otago Gazette, Issue 444, 20 October 1904, Page 3

An Important Judgment.

LETT v ALEXANDRA BOROUGH

I At the Warden's Court, Alexandra, oa thelOfch.inst., Mr Warden Burgess delivered judgment as follows, in the above previously-heard case : The plaintiff in this action is the lessee of a coal mine held under the provisions of « The Goal Mines' Act 1891," and.situated near Alexandra. The defendant corporation is the possessor of a water ' race held under License 5625, issued under the provisions of the " Mining Act 1886," in exchange for title held under former Mining Acts, the original grant having been issued on the sth May, 1864. This water race at one part of its course runs along the face of a terrace and crosses the plaintiffs mine. During the month of April a portion of the coal mine collapsed and the workings became full of water. The injury done to the mine was of so serious a nature that it cannot any longer be profitably worked and must, .be abandoned. About the fame time as* the mine collapsed, a portion of the sur- j f-ce subsided and a rent or fissure in the ground appeared at the edge of the subsidence running across the Borough water race, which it intersected in two points about six chains apart. Between these points the water race was depressed producing what was described in the evidence as a " sag" in the race, the lowest points of the depression being about 18 inches below the former level of the race. Through these cracks the water escaped out of the race and was seeD by more than one witness bubbling out of the side of the hill some feet lower down, So soon as the accident to the race was observed, which was after the " creeping " and collapsing in the mine had begun, and of course after the ground had subsided on the surface, the water was dammed back in the race by some of the coal mine employees, and allowed to flow down the gully away from the injured portion of the race. Out of these facts the present action arises. The plaintiff in his statement of claim alleges that ''during the months of February, March, and April last, the defendant corporation did unlawfully and negli* gently run water,in their water race so that the said water of the defendants, so running therein, did during the month of April last escape from the said race, and percolating through the gravel there under, did flood the workings of plaintiff on the said coal lease and render the said coal workings valueless and destroyed plaintiffs plant therein," and he claims JIGOO as damage s. The defendant corporation denies liability and counter-claims against the plaintiff for that "the plaintiff has negligently and wrongfully, and contrary to the terms and conditions under which he holds the said lease mined on the said area of land under, and adjacent to the said race, and dug for, and got, and taken away coals and earth without leaving proper and sufficient support for the surface of the said area of land, and the said water race, and caused the surface of the said area of land and the said water race to subside and cave in, and crack, and thereby damage the said water race," and claim .£240 as damages. By consent, the claim and counterclaim were heard together. It was sought by the evidence adduced to prove, and it is contended by the plaintiff that he .has proved, that the defendant corporation has been guilty of a breach of the conditions under which they hold their license for the water race in that they have failed to keep the race in repair. [Sub-section 14 of section 142 of" The Mining Act 1886." See also subjection 2 of section 101 of " The Mining Act 1898,"] and that in cleaning out and repairing the race after a thunderstorm they have done so negligently, and have been guilty of negligence in dealing with the said race and in the management, and control of the water flowing therein. The plaintiff also contends that it has been shown in evidence that water from the race has found its way into the overburden of the mine, and the defendant corporation is liable for any damage caused thereby, even in the absence of any negligence on their part, and he relies in support of this contention in the case of Fletcher v Ryiands. The evidence as to the race not being kept in repair and as to negligence of the defendant corporation in the cleaning out, repairing, and management of the race, in my opinion it fails entirely to establish the truth of such a contention. The evidence satisfies me that the race was in a state of repair up to January last, when it was filled np from the effects of a thunderstorm." It was then cleaned out and repaired, only to. be again filled up by a heavier thunderstorm in February, and it was again cleaned out and repaired, The statement of the plaintiff", that in c'eaoing out the gravel and debris brought down by the thunderstorm, the bottom of the race has been disturbed and broken into, and the pervious gravel underneath exposed to the action of the water has been entirely •disproved. The allegation also tbsk the water (in opposition to the tice of all competent race managers), was turned at once f ;irjtb;the empty and dried up race., in a large volume is j shown .to be contrary ~tq fact. In my

opinion, f on a, .• QOdsideration of all the evidence, the race" was up to the time of the subsidence in as- good, i. state of repair and as sound a condition as it was practicallypossible ta make it. The long exposure tq,Jthe,, sun, which the empty race had un|; doubtedly sustained, did produce certain cracks in the bottom of the race as described by "some of the witnesses,, but these were aoietely superficial' and

did not effect the hard aedimeut at the bottom of the' race so np <o allow of the escape of watev therefrom. The water was turned into the race very carefully and in small quantity, thus allowing of the gradual absorp tion of the water by the dry soil of the race, and the filling up of all sun-cracks and other effects of a long exposure to the dry weather without permitting any appreciable leakage of water. It is a'so worthy of note that there was heavy rain twice during the time in which the race was empty, viz., on the*.29th February and the 17th March. This race has been in existence for nearly forty years, and, with the exception of one interval (said by one witness to be one year and by another to be five or six, during which the portion race crossing the coal mine was unused and the water conveyed in pipes in another direction), has been carrying water all the time, There is no evidence to show that the condition of the race was any less secure at the time of the collapse than at any former pericd of its existence, nor to lead me to suppose that the sub* sidence was the result of any inherent defect or fault in the race itself, or the cons quence of any unskilful or negligent act on the part of the defendant corporation.' There was nothing in the condition of the race to suggest fat it was any more a source of danger to the mine then, than it had before been. The injury to the mine appears to have been caused by water either getting underneath the mine and causing the floor to swell or « heave," and the pillars to sink into it, bringing about a " creep," or by the over burden becom* ing saturated with water, and the ad« ditional weight thus produced being too much for the pillars to support, causing them to give way beneath the pressure. It does not appear that the collapse in the mine was brought about by any defective method of working or that the pillars left for the support of the roof were insufficient for the pur* pose under the conditions that usually obtained in the mine. The evidence of a number of expert witnesses including that of the Mining Inspector, and the Assistant Mining Inspector, seems to me to establish the fact that there was no carelessness, want of skill or negligence in the part of the plaintiff in working his mine that led to the catastrophe. The damage seems to have been caused by an unusual influx of water, but there is no satisfactory evidence as to where that water came from. There is almost unanimity on the part of the plaintiff s witnesses in ascribing it to the instrumentality of the water race, but this opinion amounts to little more than conjecture. It is a plausible explanation of the pressure of water in the mine, but is not based on any observed facto. Mr Hodson, the manager, who can now see no other possible,source for it than the water race, was at first under the impression that it found its way by gravitation from the Perseverance mine. Mr Howie, for five years manager of the mine prior to December last, has more ground for his opinion, because he states as the result of his observations during his management that the water increased and decreased in the mine as the water in : the race was turned on or off. But even ac. cording to his evidence there was always water in the mine independently of the water race, even if the race was off for a month, Water has on previous occasions come into the mine in large quantities, as the result of, a fall in the mine. A fall in 1898 wjia followed by a large inflow of water. There was during December last a «evere fall from the surface into the miue, and an enor» uious increase of water came through this fall. There was, however, nothing unusual in the condition of the water race at the time to suggest that the sudden influx of water irto the mine was caused by the race. There is also abundant evidence before the court to show that other mines in the district have from time to time encountered water in large quantities, so severe in some instances as to cause the abandonment of shafts that were being sunk, from all the facts before me I conclude that though Lett's mine has been described as a dry mine and the measures said to carry no natural water, water does exist in a natural condition in the mine and surrounding country, and that this mine like other mines is subject to occasional incursions of water that come from some at present unascertained source. The evidence does not convince me that that source is the water race. Unless, however, I reject, Mr Howie's evidence as which I have no reason to do, I must believe that some water does find its way, or at any rate > has in the past found its way into the mine—not by any sudden inrush, but by percolation through the soil; This water mingles with the water natnrally in the mine, and with it is easily got rid of by pumping, causing apparently beyond this no inconvenience. The influx of water on the 15th and following days was quite different in character to* this; and could not, having regard to the condition of the race at that time, have come from the Borough race at all. Mr Howie's evidence referred of course generally to the relation between J the race and'the mine and' not specifically to the month of April. \'.\ (Continued on page 5.)