RESIDENT MAGISTRATE’S COURT.

Evening Star, Volume VII, Issue 2021, 27 October 1869, Page 2

RESIDENT MAGISTRATE’S COURT.

Tins Day. (Before A. C. Strode, Esq., E, M.) DBUKK AXD DISORDERLY. Jolm Kidd was fined 10s, or 24 hours’ imprisonment, for being drunk ; Mary Jarvey, for a like offence, being a habitual drunkard, was fined L 5, or 14 days’ imprisonment, Civil Cases. Geo. Thomson v. Macdonald.—A claim for L 5. The plaintiff did not appear, and a verdict was therefore given for the defendant. Hugh Ross v. Win. Roebuck.—L2o Gs 4d. There being no defence, a verdict was given for the plaintiff by default. Alexander v. M'Gavin.—A claim of LSO, for damage to property in M aitland street. Mr Howorth for the plaintiff, Mr .Stewart for the defence. Eobert Kilgour, who lodged with Mrs Alexander, knew her property in Maitland street. The access to it was approached by Steep street, but in consequence of quarrying operations by the defendant in Steep street, the gate had been carried away. The house was at the back of the property, wdnch was fenced. The fence w r as several feet from the edge of the rock. Before the ground fell away, the fence would be about ten or twelve feet from the edge, and there was a pie.ee where people used to walk, outside the corner of the fence across the section. He never spoke to the defendant until the Monday morning after the fence fell. Other two men were present employed in quarrying, "whom he had seen before. He told them on various occasions they were coming too close to Mrs Alexander’s property, The first fall took place on the 22nd August. The defendant and the witness went together up Mrs Alexander’s garden. Witness told the defendant he had made a nice mess of the property, and he replied he would make it right with Mrs Alexander. About six feet of the fence, the gate-way, and part of the gravel-walk, with several shrubs, had fallen away. The defendant placed some rubble against the face of the rock, when the witness told him it -would do no good, as it would soon fall. A second fall took place several weeks afterwards. Between the points now standmg there is a distance of 28 feet. It is now nepeasapy to go rqundto the Town Belt to reach the house and tq enter by the back-door. In Ids opinion it would require an outlay of L2O or L.'IO to repair the garden alone. Mrs Alexander was an invalid, not having been able to leave her chair for several years. In reply to Mr Stewart, the -witness said the section was GO fo.:t wide, the usual width of a quarteracre section. He could not say whether there were men working at the place under Inspector Barnes, between the Grst and second falls. There was a temporary fence put up by the Corporation to prevent people falling over the precipice in Steep street. A fence ran across the section, and ground had fallen away from both sides of the dividing fence. —J. Smith, jphier and carpenter, lived opposite the plaintiff in St’eep street. On two or three occasions he had seen men blasting at

the quarry iu Steep street, about a couple - of months ago. He saw a blast fired about thre ■ or four yards from the ooruer of Mrs Alexander’s ground. The last blast fired was a heavy one. Prior to that blast being tired Mrs Alexander’s property was perfect, but afterwards the bank ■ gave ovay, and brought down a great portion of tbp garden along with the fence and gate. There had been several slips ; the first took away part of the road, and the others took away the gitea and fencing.— C. H. Street, land and estate agent, had inspected Mrs Alexander’s property. He described the damage done, which he estimated at least at L3O, irrespective of any inconvenience to which the plaintiff was subjected.—John Barnes, Inspector of Works for the Corporation, knew that the defendant began quarrying iu Steep street about four mouths ago, and continued to do so until about six weeks ago. He should have worked under his (witness’s) directions, but did not fobow them. He told both defendant and his men they were going too cl >sc to Mi s Alexander’s property. The bank should have been made to slope from the first. His instructions were never followed from the first. The last time he saw defendant’s men lie found great fault With the manner in which the work had been done. The rocky pillar* that had supported the bank' had been taken away, and in consequence the top surface might have slipped about six feet, and some had gone into the quarry. With very little expense the ground might he made belter than before. It might cost Lls to L2I) to make it as good as before. It would then be safe to put a fence on, but not a building. It never was safe to put a building on. The contractor had no permission either from himself or the Corporation to blast, but he saw evidence that blasting had been done by the appearance of the rock. Quarrying to a small extent had been carried on since by the Corporation He bad cautioned the defendant not to take some stuff from the quarry but he had done so notwithstanding. Hobert Howlison, architect and builder, had made a plan of the property, which he described. Ho estimated the damage would require L 35 to repair, apart from depreciation of the rest of the property. A new pathway and roadway would have to he made. Mr Stewart said it was not clear what interest Mrs Alexander bad in the property, for supposing she was a leaseholder the freeholder might sue again for damages. He therefore asked that those damages should be of the lowest class. Though throe causes of action were mentioned the only one could be maintained was that of careless blasting. As he did that under sanction of the City Council, and as they were not liable for damages neither could the defendant be held liable. For the defence B. G. Stratton, architect and surveyor, was called. He produced a plan. In Ins judgment to trim the ground down aud make it useful would require GO cubic yards of earthwork at Is a yard, and fencing ami gate L 4 10s, together L 7 10s. That would not restore it to its former level, which had been artificially raised. Ho proposed to slope the garden gradually to the level of the street.—George M‘Gavin, the defendant, said he was quarrying about eight feet from the fence. He was quarrying across the street. The cause of the slip, in his opinion, was that there was a sort of conglomerated rotten rock, in which the bed rock lay at a slope; and there was a sort of wet clay bed on the bed-rock, and whenever the water got at the back of it, it slipped away —the water got into the made ground of the garden. He could have made good the first damage for 30s. The second slip took place on the 24th September, while the Corporation men were working. His men left ou the 4th. He thought Lid would make the ground good. He did not estimate the damage at so much, as he offered Mrs Alexander, which was L 5 cross-examination, the defendant said he did not recollect being warned thet he was too near the boundary of the property. The danger of damaging the property by a blast depended upon how near it was to the property. The blasting took place after the first slip.— James Newton, who was quarrying for Mr M‘Gavin, recollected the slip taking place. There was only one slip before he left the quarry. He considered they were quarrying eight feet from the boundary of the property. The blast was fired about twenty-four feet distance from the ground, Both were fired before before the big fall took place. The little fall took place previous to the second blast. Mr Kilgour spoke to him ; but if he were to pay attention to what every man said, he might go with his hands in his pocket. Every man valued his own life, and if he and his mate had thought the ground would fall they would not have worked under it.—The Magistrate thought the evidence was conclusive as to the damage, and that the defendant had caused it. It was quite possible that only one slip took place before the defendant left the quarry, but the second slip was consequent upon it. It appeared also that the defendant exceeded the authority given by the City Council, but tq plead that permission had been given by the Council to do that which would damage private property was absurd. The defendant had admitted his liability. Looking at the whole circumstances, he const lered the plaintiff entitled to L2O. \ erdict accordingly.