LAW REPORTS.

Dominion, Volume 4, Issue 1190, 27 July 1911, Page 3

LAW REPORTS.

COURT OF APPEAL SITTING.

RIVER SILT CASE. LIABILITY. OF LANDLORDS. The Court of Appeal yesterday delivered reserved judgment in the case of George Cooppr v. Jakob Bertelson and Rudolf liusmussen, 'formers, of Taeroa. The appeal was against » decision by Mr. Justice Cooper in a Supreme Court action by Kertelson and Rasmussen, to recover damages for alleged loss through the Hooding of a farm, which had been leased to them for twelve" years by Cooper. These Hoods, it was stated, came from the Ohinomuri Eivcr, and it was alleged that they had deposited .quantities' of silt on the farm. The Court had found for Bertelson and Rasmussen for ,£'65G as. damages, and costs amounting to «£2JG 10s; Id.

At tho hearing of the appeal it was set out that, in the Supremo Court action, plaintiffs had alleged that the land had (ever since the Hood of 1907) been totally covered with silt, and had consequently been valueless for grazing, or any other useful purpose. The jury decided that the damage had been occasioned through the defendant not taking reasonable precautions in maintaining the structures on a boundary drain. This neglect had practically destroyed the usefulness of the farm for a femmt on a short lease.

It was further set out, for tho purposes of the appeal case, that on jvlay z3, 1899, the appellant Cooper, who was tl»?n owner of 216 acres, had leased the land to tho respondents for 12 years as from December 1, 1898, but there was no covenant of (juiet enjoyment in the? lease. The laud was adjacent to the bank of the Ohiuemuri River, but a small area, bituaUd betweeu the leased block and the river, was held by the defendant. The leased hnd was lower than the bank of the river, but the only practicable and effective uiauher of draining it was, and is, by means of an outlet drain into the liver. An open drain for tho leased land had been enlarged by Cooper, who took precautions to prevent the inrush of flood waters from the river, but exceptionally heavv floods, which had occurred in-1902 aiid 1903, and again in 1907 and 1909, had carried the protections away, and tho drain had allowed the silt-laden waters to flow over respondent's farm. The appeal waa on points of law. At tho hearing, Mr. T.' Cotter, with him Mr. I". H. Mueller, appeared for appellant, and Dr. Bamford lor respondents.

The-Chief Justice (in giving judgment) pointed out that tho respondents, contended that tho appellant was liable on one of three grounds: (1) As for a nuisance as found by his Honour; (2) as for a breach of covenant for quiet enjoyment; (3) as for a derogation from the grant of the lease. . ' ' ' Dealing with these'in their order, the question aroso as to .whether appellant Cooper was liable for having created a nuisance, or, to put it in another way: Having connected the drain with the river, was ho bound to maintain such an efficient Hood gato as would have kept out the river water? . After a lengthy review of tho cafes bearing on the • point, the Chief Justice said that lie was of opinion that a duty to keep the sluice-gate in repair could not. bo inferred from the'relationship of tho parties in'tins ease. In regard to tho two other,e'rotwo's on which it was sought to make the appellant liable: (1) That there was a breach of the covenant of quiet eiijovment,' and that that covenant, was implied; and (2) that, this was a derogation from the grant of the. lease. His Honour said. that the respondents took the lease knowing of the drain, and had- obtained no covenant that the appellant would keep it in repair. On what principle, then, could his liability to repair depend ? Not.'a, single,authority had been cited to show that such a liability could arise. He was not bound,, so lar as his own land was concerned, to maintain it! The respondents' were his tenants and took the lease without having asked for anv agreement that he should maintain the' drain and its structures. On this ground his Honour was of opinion that the appellant was entitled to succeed. Their Honours Sir Joshua 'Williams, Chapman, and Sim concurred in this judgment, but Mr. Justice Edwards was of opinion that the appeal should have been dismissed.

AN AGREEMENT REPUDIATED. There was further hearing of the appeal case of John Joseph Curry v. Bertha I'ainc, which was commenced on Tuesdnv before tho Chief Justice and Justices Sir Joshua Williams, Edwards, and tiiift. Mr. A. W. Blair, with him Mr. G. H. Fell, appeared for the appellant, and Mr. H. V. Bell, with hfm Mr. I\. M'Callum, for the respondent. # _ The appeal was against a decision ot Mr. Justice Chapman in a case decided at Nelson. It had relation to an agreement bv Corn- to purchase a wharf at Blenheim, from Paine. which agreement r.-as subsequently repudiated. The history of the case was outlined in yesterday's issue. Argument had not concluded yesterday when the Court rose.