RESIDENT MAGISTRATE'S COURT.

Evening Star, Issue 3218, 13 June 1873, Page 2

RESIDENT MAGISTRATE'S COURT.

Friday, June 13, (Before I. N. Watt, Esq., R.M.) LIABILITY FOR BURSTING OF WATER PIPES. Reid V. The Dunedin Waterworks Company.—This case was heard at a previous sitting of the Court. Plaintiff claimed LIOO damage to garden and loss of seed, arising from the bursting of one of the Company s mains. The Court now gave the following judgment. In striving to arrive at a proper conclusion with respect to the liability of the Company, I have been led to view it in four different aspects 1. The Company being authorised, but not required, by Act of the N. Z. Parliament to construct certain waterworks, do they construct them at their own peril, and are they pnma facie liable for the damage which is the consequence of an escape, when that escape is caused by extraordinary and inevitable circumstances, and when, but for their act of impounding the water, no mischief would have occurred. 2. Are the Company prima facie liable when the escape is not caused by extraordinary and inevitable circumstances ? 3. Is the escape prima facie presumptive evidence of negligence ? ..... . • 4. Has negligence been proved in this partic&s6 ? If the defendants were not authorised by Act of Parliament,{there would be no difficulty in answering the three first questions in the fdhrmative. For Blackburn, J., in Byland v. Fletcher, 37 L. J., N.S. Excheq. 161, says “The true rule of law is, that the person who for his own purposes brings on his land, and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and if he does not do so he is prima facie answerable for all the damage which is the natural consequence of the escape. He can excuse himself by_showing that the escape was owing to the plaintiff s default, or perhaps that the escape was the consequence of vis major, or the act of (rod. But it would seem from the case of Whvtemuse v. Birminqham Canal Company, 27 L.J., N.S., Excheq. 25, decided eleven years previously to the former, that the acts of the defendants being authorised by Act of Parliament, they are not responsible for escape unless negligence be found. And again, from the cases cited in “Addison” (1870 Ed.) p. 727, this reading of the law appears to be overruled. It is not necessary, however, that I should answer the first two question, nor perhaps the third either, as I intend to answer the fourth in the affirmative : but I am inclined to think that Mr Justice Blackburn’s rule should guide the decisions in those cases in which the acts or works are authorised by Act of Parliament, as well as in those in which the acts or works are not so authorised, more especially when those works are done for reward to be received by the owners. To the third question, however, I reply that 1 think the bursting of a pipe should be regarded as prima facie of negligence, it may happen from bad or insufficient pipes, and it may at any time happen from' the improper or careless closing and opening of the valves by the company’s servants, and this may be done without the chance of any evidence of it being forthcoming. We have evidence of the quality, soundness, and strength of the pipe which burst, but none of the manner in which the water was managed previously to the bursting, which last, I think, ought to have been had to negative presumed negligence. To the fourth question, I answer that negligence has, I think, been satisfactorily established. Until the witness Duncan was called, who evidently knew well what he was talking about, and gave his evidence with much intelligence, .1 was satisfied that the leak proceeded from the joint of the pipe, and after reviewing the whole of the evidence, I am still of the same opinion, though not so confident; however, it is not important, as I agree with the counsel for the plaintiff, that it was as much the duty of the defendants to dram the water off in order to preserve the bedding or the pipe, if it proceeded from aspring, as it was their duty to stop it if it was a leak. The facts are as follows The pipe is buried in made ground, consisting of stones, clay, and other earth. The water was bubbling up through the surface, immediately above the place where the pipe burst, for two or three weeks previously. I think it fair to conclude that more or leas of the earth surrounding the pipe was washed away, that the equilibrium of forces, by virtue of which the pipe and the water remained in position, was thereby disturbed, and that the accident occurred in consequence thereof. I could offer two or three theories to account for it, but I do not think it qecessary to burden the judgment with mere speculations. I do not think the plaintiff is entitled to heavy damages, but I thing he is entitled to damages for the actual injury sustained. The value of the seed has been variously estimated at 12s, 14s, 16s, and 24s the pound. I think for the large quantity lost only a reasonable wholesale price should be allowed —l3s the pound appears to me to be such a price. The value of the soil removed has been estimated by one witness at LlO, by two at L2O, by two at L3O, and by the plaintiff at LoO, exelusive of the cartage. It appears ibo me Ihat L 25 would be a fair amount to allow for the damage to the land. Judgment will, therefore, be fo? the plaintiff—For the Wgus seed, L4112s ; damage to land, L 2 5; in all, L 66 12s, Wl Glover'v. M‘Gavin.-Claim for L6O, the value of a horse-wrongly converted by defendant to his own use. Mr Stout for plaintiff, and Mr Turton for defendant. The case for plaintiff was that he purchased a horse from a carrier named M'Kenzie, in the year 1869. He (plaintiff) took possession of the horse, after which it was given back to M Kenzie in loan, by whom it was retained up to the time of his death. Notice was then given to defendant that the horse in question was his property. Despite that fact, defendant sold the horse under a bill of sale granted by M‘Kenzie. —For the defence, the bill of sale was produced, and it was urged that the sale of the horse to plaintiff was bad, under the provisions of the Mortgage of Stock Apt. Judgment was given for the plaintiff, with costs. M‘Glashan v. Wilson.—Mr. Stewart for plaintiff, and Mr E. Cook for defendant. A question of jurisdiction was stated for the defence, which the Court took time to consider.