SUPREME COURT.

Dunstan Times, Issue 693, 30 July 1875, Page 3

SUPREME COURT.

CIVIL SITTINGS. Monday, July 19. (Before his Honor Mr Justice Johnston and a Special Jury.) Rivkr Pollution. OLASSFORD V. REID AND OTHERS This was an action te recover LIOOO damages, caused by damage to plaintiff's land, through defendants having polluted Thomson’s Creek. The plaintiff also sought to obtain a writ of) injunction to restrain defendants from continuing to pollute the creek. Mr Maoassoy, with himMr B. C. Haggitt, for plaintiff,j’jMr '.James Smith, with him Mr Stout, for defendants. It appeared! from the pleadings that the plaintiff is Thomas Glas itord Gordon Glassford, rnnholdcr, and owner of certain free hold laud in Otago. The defendants are Stephen Reid, John Reid, ami others—a party of miners, working on Tinkers diggings, in the neighborhood of Manuherikia. Since tho 20th of May, 18C7, plaintiff lias boon possessed of 92 acres of land, preemptive lighten Run No, 223, owned by plaintiff. A natural stream, called Thomson's Creek, flows through tho land, and plaintiff is entitled to have tho use of the said stream, without being polluted or disturbed. Defendants (wrongfully polluted and disturbed the stream, by throwing into it large quantities of earth, tailings, Ax., whereby the water was rendered unfit for cattle to drink, and also for domestic purposes ; consequently, plaintiffs land, in value, had been lessoned, to plaintiff’s loss and damage. The creek, as polluted, flows through other land of the plaintiff Since the 20th of May, ISG7, plaintiff has been entitled to have the water flowing uninterruptedly through the land in its natural and ordinary couise: yet defendants, well knowing this, and being possessed of certain gold-mines, did, on the.22nd of December, 1873, and since, knowing')-, wren'folly, aud injuriously, cast from their claim into the said stream large quantities of tailings, Ac., whereby the hod or channel of the stream has become obstructed and raised, and the water flows on plaintiff’s land, which, consequently, has become unproductive. Plaintiff requested defendants, hut without avail, to refrain from continuing to pollute tho stream. Defendants plea-’ed a general denial of all the material allegations'in plaintiff’s declaration ; that before the commission of tho acts above-mentioned, her Majesty owned certain lands adjacent to Thomson’s Creek, and had authorised defendants to mine there for gold, to use streams for the purpose of washing away tailings, Ac., aud to construct tail-races for carrying away tho said earth to streams flowing into Thomson’s Creek. In pursuance of that authority they did allow the earth, Ac., so to flow-, and without doing which mining operations could not he carried on. That plaintiff, before he became possessed of his land, knew of the facts above stated, and that he took his land subject to tho said rights and privileges possessed by defendants. It was also stated that defendants had in - timated that it would he urged in mitigation of damages that the alleged wrongful acts had resulted in no actual wrong to plaintiff, inasmuch as the creek had been polluted byother miners ; that what the defendants had done, had been done well knowing they had the right so to do, aud that nothing had been done vcxationsly. That the alleged raising of the bed of tho stream had been, in a great measure, if not wholly-, caused by plaintiff making a cut whereby he diverted Thomson’s Creek, and caused it to overflow. Plaintiff, by his replication, further stated that prior to the alleged acts of defendants, the waters of the stream were confined ■within its banks, and never overflowed, except, perhaps, in time of flood. The stream had now spread beyond its banks over part of plaintiff’s property, and instead of the stream being 14 feet or 15 feet wide, running between well-defined hanks, it had now no defined channel, was filled with sludge and rubbish, and was 40 feet or 50 feet wide ; and plaintiffs homestead, woolshed, and other buildings, erected at a considerable cost, were liable to considerable damage in case of flood. Indeed it was considered within the bounds of possibility that the whole of tho plaintiff’s pre-emptive right might, in time, he covered with water. Mr Haggitt further explained that since this action had been commenced, a case had been heard at the Court of Appeal in this Colony, in which similar questions had been raised, and the decision thereon, as plaint!ff contended, was entirely in his favor. Plaintiff did not desire vindictive, hut substantial damages ; at any rate something more than nominal damages—damages sufficient to indicate the Jury's appreciation of plaintiff’s rights, and of those of any other freeholder, as against persona engaged as defendants were. So far as was known, defendants weio tho only persons fouling this stream ; at any rate, if there were others, the damage was so inappreciable as not to ho worth notice. J. S. Handyside, rnnholdor, and John Elliott, manager for plaintiff, gave evidence for him. Tho Latter stated that of a wall 6 feet high, which had been built on plaintiff’s property, only about 2 feet was now visible, consequent upon the throwing of rubbish into the creek. Tho pre-emptive right property was worth between L3OOO and L4OOO, hut in case of flood it might ho worth nothing to-morrow. Defendant’s party was the only party that sent tailings into Thomson’s Creek—the other parties sent their tailings in another direction, to a

crock called Tinker’s Crook, On being crossexamined, Elliott raid ho did not recollect any material difference in tho creek until tho year 1870. He recollected damage being done to plaintiff's property—tho buildings—prior to 1870. Another witness examined on behalf of tho plaintiff was Hugh Hnndysidc, who said ho considered, by tho tailings and other rubbish having been deposited on tho property, it was depreciated in value L.'iOOO. Tho plaintiff’s case having been coneluded, Mr Stout submitted, on behalf of defendants, that plaintiff, having admitted defendants' pleas, they must ho taken as sufficiently good. If ho objected, he should have previously demurred to the pleas, or move hereafter for a verdict non ohstanto verdict. Ho also pointed out that defendants relied, in their pleas, as well as in notice of mitigation of damages, that they had not been acting as ordinary trespassers—not like men who had no color of right to do what was complained of. They obtained a license to construct a tail-race, ami duo notice was given to all, so that plaintiff could have protested against the license being issued. Instead of that, however, he took uo action until the action now before tho Court was instituted. The learned counsel pointed out, also, 'that this case was important in that it was the first in which a freeholder hadjtaken such proceedings in respect to mining operations. Therefore the question now was, whether miners were to he allowed to continue mining in the Province or not. If this action was given against defendants, the operations of other minors w-nild be stopped, because they also were acting under regulations of the Government. No doubt the Legislature considered that it would be better to have mining, even with its pollution, than that there should be no mining at all. Moreover, defendants only discharged their tailings on the spot pointed out by the regulations when they made their application. But if the Jury considered that the regulations did not give defendants the power which they believed they possessed, then it could not be said that defendants were responsible for all tho tailings, and only nominal damages should ho given. Evidence was then taken for the dofen’ants. The defendant was under examination when tho Court, at half-past 5 o’clock, adjourned until next day, at 10 a.m. The case was continued from the previous day. After evidence for the defence had been given, Mr Smith addressed the Jury on behalf of defendants, and said it depended on the result of this case whether defendants woie or were not utterly mined. Plaintiff not only sought to recover substantial damage - , but an injunction to restrain them from making use of those appliances, tail-races, &c., on which they had expended so much labor and money. It depended upon the result of tho case whether a most important branch of industry would he paralysed iu this Province. It was complained liyp’alntiff that tailings had been discharged from defendant’s workings, and had raised the lied of the creek in such a way as to can- e the water to overflow plaintiff’s land ; thrt large quantities of shingle had thereby boon deposited on plaintiff’s land ; and that the evils complained of wore likely to increase so muck that plaintiff’s buildings were endangered ; therefore, plaintiff asked that defendants should ever be prevented from pursuingtheir mining operation. Defendants answered the complaints in two ways—first they denied that they were hlaraeahle for any of the evils of which he complained to defendants, those evils had arisen from the pursuit of their lawful occupation, sanctioned by the Legislature, and pursued by them in a legal and proper manner, and, consequently, that they ought to be ert’rely free, not only from blame, but from any pecuniary consequences or damage which might have happened in consequence of tho exorcise of their lawful right. He (Mr Smith) also submitted that no evidence had been adduced upon which the Jury could possibly come to the conclusion, as a matter of fact, that that bad been done by defendants. Many other parties of miners had been working in tho neighborhood continuously s’nco 1852, and so far as the disposition of the heavy ractal was concerned, it was tho result of operations of other miner 3. Unless the Jury could say that defendants, by their operation?, had so deteriorated the quality of the water as to render it unfit for man or horse, they could not saddle defendants with consequences. Like Aminadab Sleek, the defendants said, “We may deeply sympathise with you, hut it is not in our way to pay yon any amount for anv injuries which yon have sustained." If, for instance, the Jury were to form themselves into a company to supply better gas to this city— (His Honor : They might easily do that.) If ho (Mr’Smith) sai 1, the Jury were to form themselves into a company for the purpose named, and, authorised by Act they cut up the streets for laying down pipes, so long as they did not keep their trenches open an unreasonaide time, tho law would hold thorn scathless. The same argument applied to tho case before the Court. To do what plaintiff ft iked the Jury to do, would, if done", bo tantamount to placing a loaf in the linn’s of a hungry man, and then bringing him up for larceny if ho ate it. Mr Maeassey addressed tho Jury on behalf of the plaintiff. Ho submitted that every man who was tho owner of land through which water ran was entitled to use it for domestic purposes, provided it was not materially diminished, and provided tho quality of tho water was not deteriorated ; and tho question was, whether tho Jury were satisfied that upon the evidence the stream had not boon interfered with as alleged by tho acts of tho defendants. Having commented upon tho evidence to show that this had been the case, ho submitted that substantial damages ought to bo awarded. On the first count, which alleged tho disturbance, pollution, and fouling of tho water, the plaintiff only asked li dam-

ages ; but nu the second count ho naked substantial damages, the second count referring to the deposition on the plaint id’s land of tho materials mentioned. The learned counsel also pointed out that plaintiff until ho saw that his property was being seriously injured, did not take action ; and ho even erected a retaining wall for its protection ; but as his property was daily becoming still more seriously imperilled, lie asked that defendants should bo restrained from further injuring, by their acta, that property. Ilia Honor summed up,’and, referring to the evidence, pointed out, among other things, that the defendant Reid had state I ’, in effect, that the shingle or deposit, which it was alleged caused tho mischief, did not proceed from defendants’ workings, the material at their workings being of a different character, geologically. If true, that, combined with other extrinsic matters, and the opinion of Mr Mouatt (as to the evils being tho result of natural causes), it would bo a matter worthy of the consideration of the Jury. Then, with regard to the question as to the state of the law of the Colony, he would rule, without jurying that he had any groat confidence of his being right, that, by the existing law of Now Zealand, a person making an honest and fair use of tail-races which had been constructed by virtue of the licenses issued under resolutions made in pursuance of the Goldfields Act, was not responsible for the results. Ho ruled in that way at present, without any absolute conviction that it was good law, but ho must decide in one way or the other, in order to have the opinion of tho superior Court. His Honor then referred at greater length to the evidence, before leaving the case to the fury. The Jury gave damages contingently, Is on the first count (pollution of tho stream), and LSO on the second count (as to the depositing of tailings, &0., on the plaintiff's land.) The Court then adjourned.