SUPREME COURT.

Dominion, Volume 5, Issue 1537, 5 September 1912, Page 2

SUPREME COURT.

(Before his Hon. Mr. Justice Chapman.) CITY RAINSTORM LAST YEAR. THE COUNCIL SUED, CLAIM FOR £1,500 DAMAGESRecollections of the exceptional!} - heavy rainstorm of February 25, 1911, wero revived by a civil action commenced in the Supreme Court yesterday afternoon, before Mr. Justice Chapman. The claim was for .£ISOO damages for injury caused to land ns the result of an inflow of water from Grafton Road, Roscncath. Tlio parties to the action arc John Wallace. Enseon and Percy Goorgo Eassou, plaintiffs, and the Wellington City Corporation, defendants. The Wellington Gas Co., Lid., was added as a third party. Mr. C. P. Skerrett, K.C., with him Mr. TV C. A. Hislop, appeared for the plaintiffs. The City Solicitor (Mr. J. O'Slicu) appeared for the Wellington City Corporation, while Mr. H. D. Bell, K.C., with Mr. T. Neave, appeared for the Wellington Gas Co., Ltd. Why the Claim Was Made. • It was set out in the statement of claim that plaintiffs were tho owners of three house?, in Grafton Road, Roseneath. In 1903, by arrangement between the Borough of Melrose and the owners of the land on either side of Grafton Road, sufficient land was dedicated to make the road CGft. in width. In consideration of this the Borough of Melrose, undertook certain work, in particular a reduction of parts of the grade. This work was completed by the Wellington City Council, into which tho- Borough of Melrose' was merged in April, IffO-l. Plaintiffs alleged that, by the reduction in the grade of Grafton Road, storm-water was led out of its accustomed channels, and on February 25, 1911, a large quantity was turned on to plaintiffs'land, and did damage both to the land and houses. It was further alleged that certain pipes laid by the City Council had proved wholly inadef|iiato to take the' place of a natural water-course, which had been blocked by the work in 1903; and that this (with the .alteration of the grade) had been responsible ;for tho damage. Compensation to the amount of ,£ISOO was now claimed. Nature of the Defence. In it.s .{statement of- defence tho City Council admitted (hat an arrangement had been entered into by the Melrose Borough for tho construction of. a street (Grafton Road), 66ft. wide, but tho conn-' cil asserted that tho construction of tho road was a joint enterprise carried out by the owners of adjoining lands, theliataitai Land Company, and tho Borough of Melrose. Tho predecessor in title of the plaintiffs thus consented to the construction and formation of the street, and acquiesced in the construction of the drains. The City Council also affirmed that, inasmuch is tho water, which had flowed into plaintiffs' lands, had been occasioned by the act of God, nnd_not by negligence, plaintiffs were not entitled to damages. Moreover, tho fact that plaintiffs had excavated their land' to form a basement for ono of tho houses, without providing any structure to replaco tho loss of lateral' support, was primarily responsible for causing the damage. A general denial was given to tho,other allegations in the statement of claim. , The Wellington Gas Company, Ltd., as third party, denied the liability of tho City Council, and also denied their own liability to indemnify tho council. •

Jiidne Views-the Road, At the suggestion of Oie parties, his Honour deoided to view the Grafton Eoad locality before hearing evidence. It was 3.45 p.m. before the hearing actually proceeded. Tho Hearing Begun, Sir. Hislop, who opened for plaintiffs, said that in the statement of claim damages had been claimed under three heads: (1) That the road was improperly constructed; (2) that the drains were improperly constructed; and (3) that defendants had closed one of the drains. Counsel now asked to bo allowed to amend tho claim, and limit the claim to the wrong done by tho dosing of the drain. On hearing this, Air. O'Sheo at oneo asked that the third party be discharged. Afr. T. Neave, on behalf of the Gas Company (the third party), asked that his clients be discharged from further participation in the ease, ne made this application irrespective of anything asked by tho corporation. His Honour made an order accordingly. The Gas Company would be awarded costs as if, in an action against it, a nonsuit had been accepted by a plaintiff at that Air.' Hislop then nsked leave to further amend the claim by reducing the amount of dam aces sought to .£750. Afr. O'Shca had no objection to offer on this point, and his Honour allowed the amendment. At 5.5 p.m. yesterday the only witnesses examined were J. W. Easson, one of tlio plaintiffs, and Samuel Berryman, corporation employee. The Court then adjourned until 10 a.m. to-day. \ ' GRANITY TRADESMAN'S WILL. POINTS SETTLED. Jfr. Justice Chapman delivered reserved judgment in the Supremo. Court yesterday on certain law points, preliminary to an action, to set aside the transfer of estate. Tho proceedings were really brought to obtain an interpretation of the will of the late Robert Tonnahill Watson, formerly n' baker, of Granity, in the province of Nelson. The executrix had transferred the estate to one of the beneficiares and, in consequence of this, the will was brought into 'question. The parties to tho action were Lillias Anne Watson, nurse, of Wellington, plaintiff, and Jessie Watson, widow of deceased and executrix of tho will, and iiobert Taunahill Watson, hotelkeeper, both of .Uranity, defendants. At the hearing Air. F.. IC. Kirkcnldic appeared for the plaintiff, while Mr. ('. P. Skerrett, K.C., with him Mr. A. do B. Brandon, jun., appeared for the defendants. The following questions were submitted to tho Court for unswers:— (1) Is the will of Eobert Tannahill . ■ Watson operative to dispose of all his property in favour of the persons (or any of them) mentioned in it? (2) If the will be so operative, what interests (if any) do tho widow (Jessie Watson) and the children of tho testator lake under its provisions? His Honour answered tho first question in the affirmative and in regard to tho second question decided that the widow should have a life interest and tho children a vested interest not conditional on their surviving tho widow. IRREGULAR PROCEDURE. OBJECTION HOLDS. Non-complinnco with one of the rules was the ground on which Mr. Justice Chapman yesterday refused an application for a ttißn.dnmus.to compel a magistrate to hear w we. in which ho had refused Isnve to defend. The parties to the application were §. L. Fl.vger, settler, of Wellington, plaintiff; and F. W. Flvger, law clerk, of Wellington, and Dr. A." M'Arthur, S.M., defendants. Mr. F. E. Petherick appeared in supi port of the application, which was oppo=ed bv Mr.'G. H. Fell. The claim was for ..Cla and the maeis- ! irate lutd refused Ui hear it in I he l/iwer ; Court on account of the il.'l'enee not liav--1 ing been died within the lime required. | An appeal \va- now made to the Supreme Court. In compel the magistrate, to hear the case. Mr. Fell raised the preliminary objection that Rule tGG had not been complied with in that the statement of claim was

not verified by nfTiihivit. lln quoted » case iii point decided by Air. Justice Ed« wards.

His Honour after licnriiift wlint Mr. IVlhcrick liml (u mi.v vntijvd to ponfer with Sir. iihvnnU. Siibwniontly h« upheld tho oijji'clinu and tlio motion was with Xi \h, I'o^ls.