LAW REPORTS.

Dominion, Volume 4, Issue 956, 25 October 1910, Page 3

LAW REPORTS.

»-— — COURT OF APPEAL. THE DAM IN WAIWETU STREAM. JUDGMENT ON. APPEAL. Judgment in tho ease concerning the mill-dam in tho Waiwetu Stream, Lower Ilutt, was given by tho Court of Appeal yesterday. Tho Bench was nccupiccl by Justices Williams, Edwards, Cooper, and Chapman. In tho Supreme Court action, Karl R-as-mussen, farmer, of Waiwetu, had claimed .£250 damages from Edith Dorothy Ellis and her husband, John Eli Ellis, and asked for an injunction ordering tho removal of the dam, which had been erected in the stream for the purposes of tho defendants' flock-mill. Plaintiff alleged that the dam caused overflow of the stream above the mill, so as to submerge part of his land, to erode the bank, and to destroy a young plantation of native trees. The Chief Justice (Sir Robert Stout) assessed the damage at forty shillings, and gave judgment accordingly. Ho also granted the injunction for the removal of the dam. The appeal was against the whole of this judgment on the grounds, inter alia, that in order to bt entitled to an injunction the defendant must prove substantial damage; that he had virtually acquiesced in the existence of'the dam; that tho Court had ignored evidence against a claim for a mandatory injunction to remove a completed work, as distinguished from a preventive injunction; that, as an alternative ground, the claim was barred by the Statute of Limitations, the alleged damage having been done Avhen the dam was erected by. the former owner of the flock-mill, Samuel Smart Mason; and, finally, that tho respondent was entitled only to his remedy at< law for damages. f Mr. C.B. Morison appeared for the appellants, and Sir. W. 1\ Ward for the respondent. Mr: Justice Williams, in the judgment which he delivered yesterday, said. he thought the facts showed that' the respondent was ■' entitled. to recover . more that mere nominal damages. The appellants had permanently deprived the respondent of the use on an appreciable quantity of land. It'would be no answer to say that it was useless to him. In regard to the claim for an injunction, his Honour said that the injury to the plaintiff's legal fights was. small. It was capable of being estimated in money, and could be'adequately compensated by a small money payment. The plaintiff himself admitted that the injury in this respect was trifling. His real grieyance was that the. backing up. of the water caused other mischief. This he completely failed.'to .establish Furthermore, tho case was, one in which ,it would be oppressive to the defendants to grant an injunction. "They had an ' established business for. vvhich i they' used the' water •power, and to take away the power would .inflict serious, injury , upon them.. The' dam had been in existence for 12 years, and although there, might not have been sufficient acquiescence oh tho part of the plaintiff to deprivo him of his right to damages; there was, in his Honour's opinion, sufficient evidence of .acquiescence to deprive him of any right to an injunction. The damages would be assessed at ,£2O. ' The judgment .of the Court below for the respondent for forty shillings damages and costs on the lowest scale would stand, but the granted would be dissolved, and Mm damages given instead. Each' side having been partially successful ■ on the appeal, there would bs no' costs. . ''. The other, judges agreed with this'decisioh.. '!'.•' •..,',-'.-