An Important Judgment-

Alexandra Herald and Central Otago Gazette, Issue 444, 20 October 1904, Page 5

An Important Judgment-

iETT v ALEXANDRA BOROUGH

(Continued from page 3.)

It seems improbable that water to a W measureable extent could have percolated through from the race into the mine during this short time, for only a Email quantity of water was running in the race, and Mr Howie says a full body of water would be more severe on ground below than a small quantity. A small quantity would soak into the sand: and Mr Terry say. that there was no perceptible diminution in the auantity of water in the race between Brennan'B Gully, and the town during that time. The inference I draw from Mr Howie's evidence and the other facts of this case is that, though speakine generally water has to some extent percolated from thewatei race into the mine at times, there is no evidence in the present instance to show that any water found its way into the mine by percolation from the race. No water had been running in ton January to March 28th, with the of about a week in Janoary.

If wa'er had percolated after it had i(c ui' o«l into the race we should e>.j t v ciint more water would have to l. pumped in consequence, but theie is no evidence of any increase in th- mine l ef.ween tie 2Sfc'i March, when the i water was turned into the race, and the 14th -\pii' ! , when the subsidence took j place. On the contrary, Mr Hod son says there was no u iusuil quantity if I cannot c nc'u ie o'n the evidence before me, that, the colla;.se in the mi e was attributable to the water race. The disturbance in the mine appears to have brought down the water race and ciused the rents iu the enth through which, probably soim water goc into the mine. For thi-, water, however, the corporation was not liable as it was through the default of the plaintiff, that the water escaped. (Fletcher vR\ lands) As to any water that may have got into the mine after the race had been i\ stored, by leakage from the race, the defendant corporation is not responsible, for they had the consent of the plaintiff to bring the water in by an open race instead of by tluming, and ou the principle of law exemplified by the maxim " Vol*nti*ot fit injuria" he cannot claim for any injuries, not caused by negligence, which may have resulted therefrom. But, even if water had soaked through the soil from the race, I do not think without proof of negligence the defendant corporation would be liable. It is urged by the plaintiff that this case comes within the principle laid down in Fietcher v Rylands, and that the defendant would be liable notwithstanding the negation of negligence. The Corporation contends that the race having been granted in pursuance of statutory provisions they are excused by the principle acted upon in the case of Dunn v The Birmingham.Oanal Ooy. Without deciding the question on thus point or going into the question as to whether the principle of Fletcher v Rylands applies universally to owners of water-races in mining districts, it seems to me that this case is distinguishable from Rylands v Fletcher on other grounds. In his judgment in Dunn v Birmingham Canal Coy., Cockburn, C.J., said:—" But there is more than one obvious and striking destruction between the case of Fletcher v Rylands and the present. In the former case the mine owner was workihg his mine before the defendant began to construct his reservoir. He neither knew, noi had reason _ to sup pose that the reservoir was being placed over old workings or that these old workings communicated underground with his mine, There was no negligence or wiltul incurring of danger on his part. In the present case, the plaintiff saw the danger, and may be said to have courted it. They had good reason to believe, that if they proceeded to work their mine under the canal, they would bring down the water upon their works. In all probability they set to work on the calculation, that, if that result should follow as it probably would, they should get the value of the coal by bringing an action against the Company. In this most important particular, this case appears to me to differ essentially from that of Fietcher v Rylands and not to be within the principle involved in that case." The facts. h°re as against the plaintiff are not as strong certainly as in the case referred to. Ido not think the plaintiff can be said to have mined under the race with a belief that he would probably bring the race down on him, but the race was in existence years before the plaintiff or even his predecessors in the mine began operations, and he knew that the race was there, and that the possibility existed of percolation through the soil, and of his workings disturbing the race, and he voluntarily incurred the risk. When it was first brought in it was constructed on Grown Lands, with the consent and license of the Crown, and the lessee of the mine took his lease from the Crown Subject, to the rights of the owners of the race (Section 14 Coal Mines' Act 1891.) But it is further contended by the plaintiff, that if it be not proved that the water which caused the damage to the mine escaped while running in the water race, that there is evidence before the Court that water was turned out of the race and allowed to flow down Brennan's Gully, and that this water or some of it found its way into the mine. Mr Sim, for the defendant corporation, objects to this agpect of the question being entertained by the Court, on the grounds that injury from this source was not included in the grounds, specified in

the notice of intended action served upon the corporation, under section 102 of "The Municipal Corporations

Act 1900," and that the escape of water from the race is by such notice

limited to the month of April, The notice states that by the corporation's neglect, and breach of the conditions under which they held their water mce " the water running in the said water race, did during the month of April last, escape from the said water race and percolate through the gravel underneath said race, aid flood my coal pit thereunder and destroy the same." I think the notice is wide enough in its terms to include water liberate i out of the race into Brennau's Gully, but is undoubtedly restricted to the month j of April. Now there is no evidence that any water did escape down I Brennau's Gully during the month of I April unti. after the mine collapsed, and then the water was turned down the gully by the plaintiffs employees. The statement of claim sets out that the injury was caused by negligently running water in the race while it was out of repair, implying an escape of water from that portion of the race traversing the mine; but under " The Mining Act, 1898," I do not think I am precluded from hearing evidence as to the water that flowed down the gully from the raoo during the month

of April. Now, evidence has been given that it has been the custom for years past t > turn the water of the race at times down Brennan's Gully Mr Howie's evidence of what came under his notice during his management of the mine goes to show that when the wat r was turned down the •jury it added appreciably to the water in the mine; more so, he says, than «hen the water was running in the ace. So impressed was he with this conviction that he has on several occasions turned the water back into the race, and Mr Terry admits that he (Howie) had told him he had done so for the reason that they had more •vater in the mine when the water in tbe race ran down the gully than when it ran in the race. There is no evidence in this case that any water except one week in January was turned down Brennan's Gully, alter it was turned off by the storm in January and ran down there. After the race was repaired in January it was again injured by the storm in February as far out as to Springvale, and that water was not again turned into the race until 28th March, and no water turned into Brennan's Gully until the 16th April. So that the statement in the notice to the Corporation that the water escaped from the race in April cannot apply to the water running down Brennan's Gully, unless it be to the time after the subsidence, when the water was turned down the gully by the plaintiff's employees and allowed by the Corporation to continue running there while the race was being repaired. But, bevond the probability that some of this water from the gully may have entered the mine, there is no proof that it added to the injury already in progress. It certainly could not have been the cause of the collapse in the mine, The water continued to rise in the mine for some days after this, and in view of Mr Howie's evidence, there certainly seems a possibility that some of this additional water may be attributed to the water turned down Brennan's Gully finding its way into the mine, but if it did there is no evidence' to show to what extent that occurred or whether it added anything to the in jury already suffered by the mine. The only evidence offered by the defendant corporation against the contention that the race water S9aked into the mine from Brennan's Gully i? that there are natural springs in Brennan's Gully which might account for the water in the mine, and' the whole of the gully consists of a clay bed impervious to the water. It rests on the plaintiff to prove his allegation. He has not done so to my satisfaction. \t the same time the defendant corporation has adduced very little evidence in disproof of it. lam left in doubt on this point. lam not sure that the water did enter the mine and add to the injury, while I am not convinced that it did not. Under these circumstances, I cannot decide absolutely in favor of the defendants, and my only course is to nonsuit the plaintiff. As far as events up to the 16th April are concerned, I would have recorded judg ment for defendant, but as I think I must treat the case as a whole, I nonsuit the plaintiff in the whole claim with costs.

As to the counter-claim—As the plaintiff hag failed to throw the responsibility for the collapse in the mine upon the defendant corporation, and as it is clear that the subsidence of the land over which the race runs could not have occurred if the natural support had remained in the soil, it appears to me, upon the authority of Humphrey v. Brogden and the New Zealand case of The Great Extended Co. v. Hales, that the corporation is entitled to damages. I do not think the plaintiff's mine has been carelessly or negli* gently worked, or that the subsidence complained of has been brought about by any improper or unskilful method of working. On the contrary, I think the evidence shows that the mine has been worked with care and judgment. The granting of the water race by the Grown carried an implied right to support, and the subsequent grant of the coal-mining lease to the plaintiff was subservient to the defendant's right, and the defendant is entitled to the subjacent support. The result of the plaintiff's mining has been to remove this, and he is liable in damages for the loss sustained by the defendant by reason of the subsidence. In my opinion they would be entitled to the cost of repairs and any lose of profit though non-user; but I hardly think they have made cut a case for the los* of rent from the Molyneux Company. The corporation were not supplying the water at the time of the accident. There had been no demard by the company for the water in terms of the agreement. There was a postscript

to a letter on another matter asking when the company might expect the water, but there was no reply by the' Borough Council fixing any time, and there is no evidence to show that the Borough would have supplied the water even if the accident had not occurred. Six weeks of the three months specified for the supply of water to the company had gone by, and up to the date of the collapse no steps appear to have been taken to supply the company. There, was no evidence as to what time the company would have used the water or when they were ready to receive it. On the whole I think there is not sufficient evidence before me to include this demand in the damages allowed. As to the damage to the water race I disallow the amounts connected with the fencing of the race, and give judgment for .£8 lis, with costs totalled .£62 Is.