SUPREME COURT.

Globe, Volume VI, Issue 654, 25 July 1876, Page 2

SUPREME COURT.

SITTINGS AT NISI PRIUS. Monday, July 24. (Before his Honor Mr Justice Johnston.) BUSH V LIGHTS AND AND ANOTHER. The following is the continuation of our report from the time of going to press yesterday : William Pearce, Inspector of Nuisances, deposed to having been in the plaintiff's house during the continuance of work in defendant’s factory. In his opinion the noise proceeding therefrom was such as to render plaintiff’s house uninhabitable. The chimney of the factory was, on representation to defendant raised, but he did not know when. Walter Hogg, contractor, deposed that he resided in Hereford street, about two chains from the boot factory. When the factory first started be noticed a great noise of machinery working and hammering; This continued during November, December, and January he believed. It was perceptible from his house when the door was open; but he could not say that it was any annoyance to him. There was a very disagreeable smell from burnt leather at first. He should consider it a great annoyance to people living close by. Cross-examined by Mr Garrick—He was a contractor for the manufacture of waggons for the Government and perhaps made a little noise. He was sure that the noise from the hammering was greater in November and December than now.

Hubert Joseph Chattaway, pianoforte tuner, deposed to having been in plaintiff’s house either the last week in November or first week in December. He went to tune a piano in the sitting room, but was unable to do so on account of the noise proceeding from the defendant’s factory. It caused a general vibration throughout the piano which rendered it impossible for him to tune it. Cross-examined by Mr Garrick—He afterwards tuned the piano between 7 and 8 p.m when the factory was not working. John Vogel deposed that he was a milkman, He had passed the house of plaintiff three or four times a week in the months of November, December, and January. He heard a hammering and a kind o! clinking noise proceeding from the factory of defendants. It was a loud noise. William Bayley Bray deposed that he was a civil engineer, residing at corner of Hereford and Manchester street opposite defendant’s factory. He recollected the factory being completed. The building is a large galvanized iron one with about twenty windows and nineteen ventilators to let out the noise on the northern side. The noise was so great in the summer season that he had to close all the windows to keep out the noise, and in the morning his wife, who was an invalid, was frequently awakened from sleep by the noise of the factory. He had heard it at times as if a dozen men were dancing in wooden clogs on the floor. The noise was continuous but varied at times in intensity. The noise continued during the months of November, December, and January, and the nuisance of the smoke was very great. The burnt leather smell did not continue, but the smoke nuisance did and doesuowto some extent. The chimney was raised, he believed, at the end of March or beginning of April; not before then. He had been into Mr Bush’s premies, and the vibratiop apd noise were very perceptible both in the sittingroom and shop. Plaintiff applied to witness soon after his return frorh Auckland; but as the factory was not complete, and be did not know the nuisance of'a boot factory, witness put him off. Plaintiff had since asked him to aid him in some fray to have the nuisance abated. The noises were a great source of discomfort and annoyance to his family, When the windows and ventilators were open the noise would be greater. , The windows and ventilators were open during the summer season. Cross-examined by Mr Garrick—lt was a matter of life and death to his wife to have this nuisance abated, and he therefore had guaranteed the plaintiff’s costs. IJe had an action pending also. The large factory resembled a huge drum worked by steam, or rather a large tin kettle. The floor upon which the machinery was placed conducted the sound to Mr Bush’s house, Mr Allan would not covenant for the suppression of the nuisance, and therefore the terms proposed to settle the action were rejected. They were afraid that so soon as the action was discontinued Mr Allan would resume the nuisance. James Robert Johnston, residing in Hereford street, gave evidence as to the noise heard by him on passing the factory. James Hart deposed that he was an officer in H.M. Customs. He remembered defendant’s factory being started in November last. The noises proceeding from it were very perceptible. Joshua Page gave evidence of a similar character. James Goss deposed to the construction of Ligbtband, Allan and Go’s building, so far as could be seen from the outside, and also as to the relative retention of noise by wooden and iron buildings. James Wood also gave evidence as to the offensive smell caused by the factory, and the noise.

Bobert Allan, one of the defendants in the action, deposed to leasing part of town section 823 from Mr Packer, and that the boot factory now erected there was in their occupation. At the commencement of the year there were about ninety hands employed in the factory. There were two presses, the rollers, and the steam engine, All were on the wooden floor except the boiler, which was on the asphalte. The rivetting was carried on in the second floor. The chimney was raised about March last. About thirtyfive hands would be employed in rivetting, which was the noisiest part of the work. The walls between the wood and the iron had been padded with sawdust since the action had been commenced. Witness did not notice any very great noise in Mr Bush’s shop when he went in in January. The factory was in full work then. (Jross-examined by Mr Garrick—Witness remembered the interview with plaintiff, as to the smoke, &c. On the 18th January formal notice was served at the office calling on the firm to desist within twentyfour hours from a)l sorts of things. Witness saw Mr Bush in February, and told him that he would have filled in with brick nogs if he thought it was a nuisance. For two years they had carried on business in Colombo street of a similar character, and it was not held a nuisance. In summer time it would not be necessary to open the windows, but it would be the ventilators. By his Honor—Witness considered that the factory was not now at all a nuisance to neighbors. He was quite willing to undertake that it should be kept the same in future. Cross-examined by Mr Garrick—Witness saw plaintiff in April, when he expressed himself satisfied with the improvements made. In June he saw him again, and offered to remove the rivetting room to an adjoining section, and place it in a brick or concrete building, and to pay £3O towards his law expenses. Plaintiff was as anxious as witness was to settle the action, and referred him to Mr Thomas. The nuisance of the burning leather was abated before the action was brought. Since the action was brought the benches had been altered, and placed on a wooden pillar, going through into the ground, so that there is now no noise whatever. The machinery had not been altered since the action had been commenced. He did not think any annoyance could arise from the reverberation of the machinery. He would not believe that the crockery in Bush’s house vibrated from the machinery. It might have been from a cart passing by. Re-examined by Mr Harper—The alterations were made abput the time the injunction was moved for, owing to the padding of the walls the windows would not now open, James Godfrey Warner, railway engineer, deposed to visiting the factory of defendants on Saturday and Monday. He noticed the rivetting machines had been placed on a post fixed into the ground, which would have the effect of deadening the sound. The bench was wedged up at the juncture with the floor, which would have the effect of transmitting the vibration. The steam-engine was fixed upon the floor, which would of course cause vibration. He had never seen an engine placed upon the floor like that before. In the room where the sewing machines were placed, there was considerable vibration. The counter shafting of the machinery below, being fixed to the joists of the rooms, would have the effect of increasing the vibration. "By His Honor—The working of the machinery at the factory and the processes carried on, might decidely be carried on with much less vibration and noise perceptible outside. It might be done without a very great outlay of money. By Mr Harper—Witness could feel the vibration in Bush’s house that morning, both upstairs and downstairs, and also hear the noise. He should not have fixed the counter shafting to the rafters, and would have kept the machine on which the work is rivetted independent entirely of the flooring, so that it could not interfere with the walls. Cross-examined by Mr Garrick—He could sensibly feel the vibration in the factory, and also in Bush’s bouse. He should, he thought, have felt it had his attention not been called to it. Mr Hamper intimated that this was his ase. Mr Garrick called the following evidence for the defence George Croll deposed that he was Government Inspector of Machinery for the Province of Canterbury, and a practical engineer. He had inspected the machinery in Lightband, Allan, and Co’s factory. The engine was seated in a wooden frame, which was placed on the floor. This was not an unusual way for so light an engine, as it only worked up to half its nominal power. Jts nominal power was 21 horse power. There would of course be vibration whereever there was machinery. There would be no more vibration from the sewing machines than in a private house. He was of impression that no part of the countershafting was affixed to the joists. There was another steam power factory. From the small amount of machinery and the small power used to drive it, there could be little or no vibration. The noise from the hammers and the vibration was very small ; indeed there was no perceptible vibration at all. When in Bush’s shop there was no perceptible yibration. Cross-examined by Mr Harper—The engine might be reckoned up to six-horse-power, but it was not working more than one-horse-power. I cannot specially recollect whether the shafting was fixed into the joists or not, but I believe that it went on to a frame provided for it totally distinct from the floor. It is not unusual to see an eugiae of such small power as the one referred to placed on the floor.

Thomas Anderson deposed that he was a blacksmith, residing in the rear of the factory of the defendants. His premises were 7ft distant from the factory. He recollected it being started to work ; he had no cause to complain ; there was no vibration, and he could hear very small noise. He thought that according to the size of the engine it was properly fixed. The power would be from two to three horse power nominal. The counter shafting was carried over two up right joists fixed in the ground, having iron brackets, which would have the effect of lessening the vibration. Before the alteration of the rivetling tables there was a vibration which was perceptible on the lower floor. There was no nuisance from the hammering. He had not noticed any vibration in Mr Bush’s house, though he had complained to him of it. All that was heard after the alteration in the factory was a humming sound. There was no inconvenience to bis bouse from noise,

Cross-examined by Mr Harper There were no windows on the side next to witness’s house. He remembered telling Mr Bray that he would not mind being inside a boiler while men were at work rivetting it. Vibration would not interfere much with him, as he had been reared for forty years amongst noise. The section upon which witness was now living had been bought by Lightband and Allan. Frederick Edward Sexton deposed to living at the house of the last witness for some months, and being unwell there. The manufactory was then at work, and ho was not annoyed by the machinery or the hammers. George Turner, deposed—That he was a clerk in the Public Works Office, and resided in Hereford street, opposite the factory. It was very noisy and offensive to him after the factory had fairly started. This continued for some months. It had been recently remedied, and they had now got somewhat used to it. Since the summer months, the windows being closed had made the nuisance less. He did not now consider the factory a nuisance. Cross-examined by Mr Harper—The smoke was in itself a nuisance to him until the chimney was raised, Charles Bush, an employe of defendants, deposed that he worked for defendants as a pressman, The main shafting of the engine is not fixed to the joists, but the small shaft ir.'g is fixed to the joists by brackets. He did not consider that the wedging of the tables near the joists had the effect of vibration. There was a slight amount of vibration the same now that was before. Nothing had been done to prevent vibration with regard to the engine. The alteration of the rivetting benches had made a sensible difference in the noise produced by lessening it considerably. The noise of the hammers has diminished since the alterations. Cross-examined by Mr Harper—He had been eighteen months with defendants. There was not such a thing as a brick wall in the building. The partition between the engine room and the rivetting is of wood, match-lined. Samuel Charles Farr, architect, deposed to passing the factory of defendants very frequently. The noise was not very loud proceeding from there. v This was in April. Charles Clark, auctioneer, Christchurch, deposed to having visited the premises of the plaintiff between the 14th and 18th April, and examined them. The machinery was at work on the occasion he went there. There was no vibration, and no noise except a very slight one. The factory was in full work. Cross-examined by Mr Harper—Defendant did not know that witness was going into Bush’s, nor was he in the manufactory. He did not notice the number of rivetlera at work. At this stage of the proceedings, Mr Garrick intimated that his case had closed, but that owing to indisposition he would ask his Honor to allow of his addressing the jury in the morning, He was suffering from severe bronchitis. After some discussion as to adjourning, His Honor granted the request, and the Court adjourned until 11 a.m, this day. VICE : ADMIRALTY COURT. Tuesday, July 25. (Before Deputy-Judge Johnston.) The first sitting of the Yice-Admiralty Court here was opened in due form at 10 a.m by the Deputy-Marshal (the Sheriff). There being no business, the Court was adjourned until August 22nd, the next sitting day. DIVORCE AND MATRIMONIAL causes: His Honor sat under the Divorce and Matrimonial Causes Act at 10.30 a.m. There being no business, the Court was merely formally opened and closed again, SITTINGS AT NISI FRIUS. The Coiirt re-opened at 11 a.m., at which time his Honor took his seat. BUSH V LIGHTBAND AND ANOTHER. The hearing of this case was resumed. Mr Garrick addressed the jury for the plaintiff at some length. Mr G. Harper having replied, His Honor summed up. The jury, after a short absence, returned into Court with a verdict on the issues, as follows : To the first three issues the jury returned affirmative answers. 4. Did the defendants on or about the eighth day of November 1875 and on divers other days between that day and the commencement of the action wrongfully and continuously make and cause to be made in the said building or manufactory loud jarring agitating hammering and battering sounds and noises and also cause to be made in the said building crmanufactory and did they continue thereon and therein divers large fires and continuously cause to proceed therefrom large quantities of offensive smoke and also continuously cause to he made thereon and therein divers large fires and did they burn leather and other rubbish therein and cause to ensue and proceed therefrom offensive poisonous and unwholesome smoke and other vapors and noxious matter and did they also continuously cause to be employed and used in the said building divers large engines and machinery and cause to issue and proceed therefrom loud and agitating noises and shakings and vibrations and have they refused to desist from the premises or any of them as in the fourth paragraph of the declaration mentioned ? Yes, but that the smoke from burning leather was abated. 5. Were the plaintiff and his family by reason of the said hammering and battering sounds and noises and of the said smoke arising from the said fires and of the said smoke and other noxious vapours arising from the burning of the said leather in the said fires entering into and diffusing themselves in upon over and throughout the said land shop dwelling house and appurtenances of the plaintiff and by reason of the said noises shakings and disturbing the said dwelling bouse shop and appurtenances of tbs plaintiff been greatly disturbed and disquieted interrupted and annoyed in the peaceable and quiet possession and enjoyment of the said land dwelling house and shop with the appurtenances and have the said land dwelling house shop and appurtenances been by the reasons aforesaid greatly lessened in value and has the plaintiff been prevented from having so nealthy and bene' ficial a use and occupation of the said laud as he otherwise would have had i Yes. 6. To what damages (if any) is the plaintiff entitled ? £SO. The Court then adjourned till 10 a.m. this day, when the case of Lord v Younghusband will be taken,