SUPREME COURT.

Dominion, Volume 6, Issue 1785, 25 June 1913, Page 4

SUPREME COURT.

RAINSTORM OF FEBRUARY, 1911, LUIGI CERCHI'S CLAIM. CITY COUNCIL SUED FOR £450.

The heavy j rain-storm of February 25, 1911, has been responsible for another damages claim against the City Corporation. This case.was heard in the Supremo Court yesterday, before his Honour Mr. Justice Chapman and a jury of four. The plaintiff in the action was Luijgi Cerchi, mechanic, of A\ellington, and tlio defendant was the Wellington City Corporation. Mr. T. C. A. Hislop appeared for Cerchi, whil9 the City Solicitor (Mr. J. O'Sliea) appeared for the corporation. Luigi Cerchi is the owner of a section of land in ttoseneath fronting on the Evans Bay Itoad, and bounded on the west by certain land, owned by Easson Bros. Eas'son Bros.' land fronts on to Grafton Road. It was set out in the statement of claim that several dwellinghouses and outbuildings had been erected on Cerchi's land. During the execution of certain City Council work on Grafton Road in 1903 and 1901, a nineinch culvert pipe "had been placed under the road at a point nearly opposite the north-western corner of Easson's land, for the purpose of carrying away' stormwater. The City Corporation had afterwards caused this pipe to be stopped, and, by reason of this stoppage, the storm water, which fell on February 25, 1911, had been unable to flow ihi'ough the culvert. Instead of doing so, it ran along Grafton Road, turned on to Easson's land, and then found an outlet to Cerclii's land, doing great damage to the land, the buildings, and the contents thereof. In respect of such damage, Cerchi claimed <£150. In the statement of defence,_ the Wellington- City Corporation admitted that the nine-inch culvert had been constructed as stated, and that it stopped up the entrance to the pipe, and that such stoppage prevented the flow of water through, the pipe. The corporation, ' however, denied that, by reason of such, stoppage, any water was carried on to Cerchi s. laud. Moreover, the corporation said that any damage caused to Cerchi's pro-, perty on February 25, 1911, was caused by the fact that the rainfall on. the date j in question was so great as to amount to "vis major," or an act of God. Lastly, the 'corporation said that Cerchi's house is built in a gully which narrows towards the bottom, and that. the. fall of rain on the night in question would have seriously damaged the property, even if there had been no slip on Easson's property. Before evidence: was called, Mr. Hislop suggested that the land concerned in the action should be viewed by the jury. This course was agreed upon, but his Honour did not make the inspection, as he had seen the locality in connection with a previous claini for damages. After the jury returned from Itoseneath. several witnesses were called on .both sido9. Mr. O'Shea asked for a nonsuit, on the ground that the course of action specified in the notice (served by a firm other than Mr. Hislop's firm) was not the cause of action disclosed in the statement of Cl His' Honour reserved this point until the other phase of the case had uceii dealt with by the jury. At 3.30 p.m. the jury retired, and, after . about half an hour's deliberation, they found for the plaintiff (Cerchi) for .£l5O. His Honour then heard argument on tlie nonsuit point, and intimated that ho .would take time to consider his decision.

NELSON WILL CASE., MOTION FOR COSTS REFUSED. 11l the Supreme Court,, in. Chambers yesterday, his Honour the Chief Justice (Sir ltobert Stout) delivered reserved,judgment on an application for costs by one J. A. Ahlstrom, executor and residuary legates of the will of one Mary Thompson, of Nelson, who died in April Inst. The facts, shortly stated, were that in January last Airs. -Mary Thompson, a widow, made her will, appointing 0. A. Ahlstrom sole legatee and executor. On this will being presented'for'probate a caveat was lodged on behalf of an adopted daughter, who was, under a former svill; a legatee, the Public Trustee being appointed executor. The matter came before his Honour at Nelson, when evidence was taken in support of the caveat. Ono ground of- objection was that the testatrix at the time she made the last will was not of sufficient mental capacity to fully appreciate the fact that she was dealing with her whole estate. A settlewent. was arrived at, Ahlstrom withdrawinn- his application for probate, the questiou of his costs being paid out of the estate to be reserved. Last week this question was argued before his Honour, who yesterday delivered judgment, holding that the applicant mu't have known that Mrs. Thompson was not in a fit state to make a will. No costs had-been sought against .him, and the question arose as to whether he was entitled to costs. It was not a case in which the applicant had been misled by the testatrix or by the caveators, nor was it n case in which he was not aware of Mrs. Thompson's condition. In these circumstances, ho was not entitled to costs. I,i His Honour added that counsel, who had prepared the will, had not been informed bv Ahlstrom of Mrs. Thompson s true condition. Had he been so informed, his Honour had no doubt that he would have decliued to prepare the will. At the hearing, Sir John Findlay, K.G., appeared for the Public Trustee, wlulo Mr. A. T. Maginnity, of Nelson, appeared for Ahlstrom.

CONTRACTOR'S CLAIM. In the Supreme Court yesterday, his Honour the Chief Justice (Sir Robert Stout) was engaged hearing further evidence in the contract case—in which the plaintiffs are J. and A. Wilson, contractor" of Wellington, and the defendant, Charles James Stanton Harcourt, land nnd estate agent, of Wellington. Mr. A. Grav. K.C., with D. S. Smith, appeared for J. and A. Wilson, while Mr. A. W. Blair appeared for the defendant. The hearin" was still incompleted yesterday, and it°will bo resumed this morning.