LAW REPORTS.

Dominion, Volume 4, Issue 941, 7 October 1910, Page 3

LAW REPORTS.

COURT OF,APPEAL. THE DAM IN WAIWETU STREAM. ■ MUST IT BE REMOVED? •'-,- SEVERAL .OWNERS INTERESTED. The appeal against the Chief Justice's judgment in the case concerning 1 the milldam.inthe Waiwetn Stream, Lower Hutt; was further considered by the Court of Appeal yesterday: Tho Bench was occupied by Justices Williams, Edwards, Cooper, and Chapman. . ' , The Waiwotu dam has been for some time a subject of dispute. .On one oc-. casion three' owners of land, higher up the stream sought .to. move the Hutt County Coiincil; to take • it .away, in exercise of the powers conferred'on such bodies by the Drainage Act. .The Chief Justice, .however, decided > that those powers, were not applicable to such a case. Then followed an action in which Karl Rasinussen,- farmer, of Waiwetu, claimed/. ,£230 damages from Edith Dorothy Ellis and ; her husband, John Eli Ellis, and asked for an injunction, ordering; the. removal of; the; dam, which had been erected.in;the; stream for. the purposes of the. defendants' flock-mill. Plaintiff allege'd : that the dam caused over-flow-of the stream, above/the mill, so as to. submerge/partCof his :land, to erode the '.bank; :and to; destroy a young'plahta-: tion: of native, trees. -The; Chief. Justice, after, an unsuccessful endeavour, to induce, the. parties^to .agree; to a compromise,, ■assessed, the ; damage ; at forty . "shillings, and -give judgment accordingly. He also granted, the injunction ,for the. removal of. the 1 dam.■;■■'' ■'. '-..','-■'-'

'. Against; this judgment the 'defendants brought the present appeal, on'-. the grounds,: inter alia, that; in-order.to be. entitled, to an injunction the .'defendant must ; ptoyesubstantial/damage; that he had virtually acquiesced, in the'existence 'of the 'dam; that the ,C6urt : .had ignored evidence 'against a for,, a mandatory injunction l to.remove a completed ■work, «^distinguished'from' a'preventive injunction; that, as .an; : alternative ground, the; claim; .was. barred by the Statute of Limitations,'the alleged ..damage.- having beeh-dohe.when'the dam was' erected by the'' '-.former Vowner ; of..:' the' -flock-mill/ Samuel. Smart 'Mason;-and, .finally," that the ■ respondent•: was-.entitled only - to his .remedy.'atlaw. for damages. -:.,,:; "•■ "■-.-■■ ; ;;Mr.'C. B. ; Morison appeared ''for"'the Appellants,;and'-Mr.. W: F.'.Ward for-tho respondent':.- ,':Their arguments;' have.;' already, occupied .the' Court' two days. -Mr." Ward..finished';at,';i.3o 'yesterday : after--,no,on;'.and Mri Morisori will-reply- when the "Court ./resumes-at ::10.30> aiin. "on 'Monday. :'-\>''•;•'; ;,.-•-■':: ■ ;.'■■) .-■ .■•;■;;••■■■::■; -■-":.-

:i."Paring, .the -hearing.; yester'day:. it was mehtipned that another action concerning the:same dam:by:.riparian owners' above Kasmussen j.was being, held -over: pehdingthe; judgment.of the. Court in the present case. 1 ,',:'■!'.,:\V.'■•■•■ •>■:■■'•"'■' ■:■•';:<■,: '■"■. '.'■;.