SUPREME COURT.

Dominion, Volume 3, Issue 891, 10 August 1910, Page 3

SUPREME COURT.

A DAM IN THE WAIWETU STREAM. FARMER'S COMPLAINT. Tho Chief Justice (Sir. Robert Stout) (lelivorod judgment yesterday in" tho Waiwetu Stream case, concerning tho effect of a flock manufacturer's dam upon land farther up-stream. . Tho action . was brought by Karl Rasmnssen, farmer, of AV;i iwctu £250 damages from Edith Dorothy Ellis and 'John Eli Ellis, Jiocic mamilacturers, and who soughti also ail injunction of the Court restrain-' nig defendants from causiiif flooding or injury to his land. " = . , J V r ;.^ V ' Ward appeared for the plaintiff, and Mr. C. B.;Morison for the defendants. His Honour said ho read his conclusion on tho facts to the parties some time ago, and suggested a compromise, but negotiations had fallen through as landowners above . the, plaintiff's land would riot consent to any arrangement. He would, therefore, proceed to give his judgment. He had visited the ia"ncl_, and from tho evidence adduced at the hearing and his own inspection, I had como to tho conclusion that the only real damage tho plaintiff had sustained was tlip injury to tho land flooded. Ho assessed the damage at £2. As to an injunction, tho question was, could he refuse an .injunction when tho damage would continue, and. when the plaintiff would bo deprived of part of his land so long as the dam remained. Instead of part of his land being free from water save in heavy floods, part of it, perhaps two or three perchcs, would be permanently under water to a depth of from ono'to two' feet. No caso he know of had gone so far as to refuse an injunction, in such circumstances. Ho recognised that, considering tho smallness of the ■ actual damage, and .the,injury to it would be to the defendant to remove his dam, the action of tho plaintiff and the owners above was unneighbourly, but he must follow the law, and he could not, after tho best consideration, find that ho could refuse a'n injunction. Judgment was -for the plaintiff for 40s. damages, and for an injunction. As to costs, the plaintifr was entitled to costs on tho lowest scale, with. £10 10s. for second day. As to ' witnesses' expenses, his Honour, disallowed the expenses ol Messrs: Blair, Duthio, Thorns, Cudby, Pitt, Dornc, Forsyth, Buck, and Burns, as they did not give evidence on tho point on which the plaintiff had succeeded. • Other witnesses' expenses and disbursements would bo fixed by the Registrar. Counsel for defendants was given time to consider tho question of appealing, proceedings regarding the injunction to stayed in; the meantime, if costs are paid and security for appeal given.