DAMAGES CASE.

Dominion, Volume 6, Issue 1580, 25 October 1912, Page 9

DAMAGES CASE.

[Beore Court of Appeal.] RAINSTORM, FEBRUARY 1911. ONE OF ITS EFFECTS. . CITY COUNCIL MUST PAY. The exceptionally heavy rainstorm of February 25, 15VV1, which has caused previous litigation in Hid Supreme Couvt, has also leii to argument in i\ie Court ot Appeal. Yesterday three Judges were engaged in hearing an appeal against a decision which Air.''Justice Chapman delivered , in. Wellington last month. The Chief Justice (Sir Hubert Stoul) presided, ami associated with him were .Mi'. Justice JJi'iinistoii arid Mv. Justicc i'divard;. The parties were tlie Wellington City Corporation, appellants, and John Wallace Hassan and Percy (j'eorge Uatson, of Wcllingion, respondents. i The Supreme Court Proceedings. I'rom evidence tendered in the action in the Court below, it appeared that plaintiffs (the Dii--sc>/i.«) were Die owners of three houses, in (.irafton lioad, Itoseneath. In 1903, by arrangement; between the borough ot' Melrose anil Ihe owners of (ho land oil either tide of Grafton Jload, sufficient land was dedicated to make the road liCtt. in width. In consideration of this tliu Borough of Melrose undertook certain work, in particular a reduction of parts of .the grade. This work was completed by tho Wellington City Council, into which the Borough of Melrose was merged iii April, 11)01. Plaintiffs alleged that, by the reduction in the grade of Gralton lioad, storm-water was led out of its accustomed channels, and on l/ebruitry 23, 1911, a large quantity was turned on to plaintiff's 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 inadequate to take the place of a natural wat-er-course, which had been blocked by the work in 100N, and that this (witli the alteration of Ihe grade) and the closing of a (train, had been responsible for tho damage, in respect of which plaintiffs (the Kassous) churned .CiaO. Tha City Council denied liability, and declared that the water which had flowed into plaintiff's lands had been occasioned by the act of God, and not by negligence, plaintiffs were not entitled to damages. Moreover, tho fact that plaintiffs had excavated their land to form a basement for one of the houses, without providing any structure to replace the loss of h'ternl support, was primarily responsible for causing tho damage. His Honour, after viewing the hDnses, heard evidence and legal argument, and subsequently gave judgment for plaintiffs (the Eassons) for .£350 and casts. ■ In the Court of Appeal Yesterday. It was from this decision that llie City Council now appealed, oil the ground that it was erroneous in law and fact. Tho City .Solicitor (Mr. J. O'Shea) appeared for the council. Mr. T. C. A. Hislop was for'the respondents. At. the outset, Mr. .O'Shea raised tho point that the Court had no jurisdiction since the net in question was a public work. - The Court expressed doubt as lo »vhc- • ther such a point could bo raised at that stage, but Mr. O'Shea was permitted to argue it. After hearing argument on both sides, the Judges delivered an oral decision. The Chief Justice held that Mr. O'Shea ■could not now raiso tlie point- that the blocking of the sump was ft public work. Kven were he allowed to do so, it would .probably be decided against him. His Honour agreed that tho judgment 'in tho Court below was correct, and that the appeal Should bo dismissed. .Mr. Justice Henniston and Mr. Justice Edwards concurred in tho view taken by the Chief Justice.

JURY'S VERDICT.

POINT. RAISED IX. APPEAL. ;. The last case on the Court of-Appeal list was reached yesterday afternoon. This was ft special case reserved by Sir. Justice Chapman in connection with the finding of the jury in a criminal trial at Oisborne last month. On tho Bench yesterday were tho Chief Justice (Sir Robert Stout), Sir. Justice Drnnteton, Mr. Justice Edwards, and Mr. Justice Chapman. It appeared that at the Supreme Court at Gisborne Francis Hill Creamer was arraigned upon a charge that on or about. August 4, 1912 (1) he did steal a sum of money iiom one William Burgess; (2) ho did steal a cheque drawn for .£l2 10s., the property of William Burgess; (3) ho did receive and have a sum of money well knowing the same to have been dishonestly obtained; (4) ho did receive and have a cheque drawn for .£l2 lfte., wellknowing (he same to have been dishonestly obtained. Accused, for whom Mr. L. T. Burnard appeared, pleaded not guilty. Thojury returned a verdict of not guilty on the ifirst three counts, and could not agree on the fourth count. His Honour said he would take tho findings of the jury and order accused to be re-tried at the next sittings of the Supreme Court. Addressing counsel, his Honour said that apparently there was n complete verdict as far as Nus. I, 2, and 3 counts were concerned. He, however, thought it was necessary to got the decision of the Court of Appeal as to tho effect of the verdict, and as to whether it was necessary to Proceed with tho fourth count. Accused was allowed bail in two sureties of .£SO or one in .£IOO. When the point came to be argued yesrerdav Mr. T. Xeave appeared for the accused", while Mr. H. It. Ostler, of the Crown Law Office, appeared for the Argument had not concluded when the Conrt adjourned until 10.30 a.m. to-day.