SUPREME COURT.

Globe, Volume XX, Issue 1461, 22 October 1878, Page 3

SUPREME COURT.

SITTINGS AT NISI PIUUS. Monday, October 21. (Before Ilia Honor Mr Justice Johnston.) The nlsiprius sittings of the Supreme Court opened at 10 a.m. HEWLINGS V. RANGIORA AND MANDEVILLE ROAD BOARD. In this case Samuel Hewlings was plaintiff, and the Rangiora and Mandeville Road Board defendants. The plaintiff by his declaration alleged that he was the mortgagee of certain premises situate at Rangiora, viz., a section of land upon which is erected the Red Lion Hotel, &c, and that the defendants, on or about the 13th July, 1877, and on divers other days, wrongfully and without the permission of the plaintiff to the permanent injury of the reversion of the said messuage and premises, undermined and broke down divers fences, and cut and dug a drain or ditch through the said premises, and put and placed mounds and banks of earth upon parts of tho said premises, whereby and by means of which said several premises the plaintiff has been and is injured, prejudiced, and aggrieved in his reversionary estate and interest in the said messuage and premises. Wherefore the plaintiff sought to recover ,£2OOO damages, and claini3 also a suit of injunction to restrain the defendants from a continuance and repetition of the said injuries, and the committal of any injury of a like kind by the defendants. To this declaration the defendants pleaded that they paid into court the sum of 40s, which they averred was enough to satisfy the claim of the p aintiff. Tho plaintiff's replication was to the effect that the sum paid into Court was not enough to satis'y the claim of the plaintiff in respect of the matter to which the plea is pleaded. Mr George Harper, with him Mr J. B. Gresson, for plaintiff. Mr Joynt for defendants. Mr H. H. Hennah was chosen foreman of the special jury. Mr Gresson read the declaration and pleadiags in the case. The following were the issues sent to the jury for their answers thereon : 1. Ts the sum paid into Court in this action enough to satisfy the demand of the plaintiff in respect of the matter to which the plea is pleaded? , 2. What further sum (if any) is the plaintiff entitled to recover?

Mr Harp r then proceeded to call evidence in support of his case. T. D. Triphook deposed to having made a plan of tho property comprised in the declaration. Witness also described the course of the drain through the plaintiff's garden. On cross-examination by Mr Joynt, the witness stated that the ditch followed mainly the direction of the old gully, though in places it went into fresh soil.

On re examination, the witness stated it _as his opinion that there was no reason for taking the water through the garden of the plaintiff at all. Albert Parsons, who was chairman of the Eoad Board in 1877, deposed to a resolution being passed by the Eoad Board, on the advice of their solicitor, to re-open the drain through plaintiff's property, which had been closed up. 'I he Road Board servants went to cut the ditch through plaintiff's garden, who, so soon as they hat cut it, filled it up again. A letter had been received by defendants from plaintiff's solicitor, prior to the trespass, warning the defendants that if they persisted in sending the water through the plaintiff's laud application would be made to the Supreme Court for an injunction. Before the plaintiff tilled up the watercourse, the water used to go through it. On cross-examination by Mr Joynt, the witness stated that before the Road Board made any cutting through Mr Bassingthwaite's land he filled up the pully, and before this the water used to pass through his property on to the railway ditch.

"William Mitehinson, who bad formerly occupied the premises, deposed to the workmen of the Road Bo.rd entering upon them. They asked permission to enter the garden, which was refused. They, however, proceeded to cut a ditch two feet six inches and three feet wide. This was filled up by Mr Bassingthwaite the next day, and again"opened out by the Road Board. On cross-examination by Mr Joynt, the witnrss deposed to the fact that there was a small drain in the garden prior to the Koad Board men coming to cut the new one. James Bassingthwaite, examined by Mr Harper, deposed to the Red Lion Hotel, garden, &c. being his property and mortgaged, t/e was tola by Mr Aherne, the Clerk to the Road Board who told him that they were going to cut a ditch Witness asked him what authority he had to do so, and Mr Aherne responded that he had been sent by the Road Board. Witness told him to go off the premises, but ha declined to do so. and commenced to cut the ditch. Witness filled up the drain after it had been cut, and the Boau Board men re-opened it. The Road Board then laid an information against the plaintiff for obstructing the men of the Road Board, acting under their orders. This information was dismissed after hearing evidence. Witness had been threatened for two or three years by the Board to have a drain cut t rough his property by them, to which his consent had not been given. A public meeting on the subject was held fn Rangiora, which decided that the water should be taken down through the garden of the plaintiff. On cross-examination by Mr Joynt, the witness stated that before the Road Board made any cutting at all, he filled up a portion of the gully. Before he filled up the gully the water used to come down from Ivory's road through the gully into his garden. In conversation with Captain Parsons, the Chairman of the Road Board, the latter said that they did not intend to send the sewage down upon him, as they intended to divide the sewage and storm water, sending the former in a different way to the latter. , ~ . , , .. . Edmund Dobson, civil engineer, deposed that he knew the property which formed the cause of action. The proper way to get rid of water accumulated on Ivory's road, would be to deepen and widen the road ditch, in which there would be no reason to go throng u the property of the plaintiff. In cross-examination by Mr Joynt, the witness deposed that the gully on Mr Bassingthwaite's land was not a natural watercourse, aud never was. Water had never flowed through the gully before 1859, when a ditch was made to connect the two ends of the gully. The ordinary rainfall could not get into the gullies, because the banks of the gullies were higher than the adjoining land. He considered that the ditch on Ivory's road would be capable of carrying the Robert Aherne deposed to having acted as clerk to the Mandcviilo and Rangiora Road Board in 1877, and to his going on the and of tl e pi lintiff to clear out a watercourse thereon, and to remove an obstruction which had been placed in the w iteivourse by plaintiff. A deviation from the line of the old gully was made at the r-quest of the plaintiff to avoid destroying the plant ition of lir trees. in crosr-examination by Mr Joynt, the witness stated that they had followed the line of the old gully until they arrived at a point about loft, from the south-east corner of the section. The storm water from the township had always flowed through the gully in Mr B/Ssingthwaite's property. To attempt to make a ditch on Ivory's road sufficient to carry off the water would be dang roil::., as the scour would be vjry great. 'j bis closed the plaintiff's case, and Mr Joynt proceeded to call evidence. Albert Parsons deposed that he had never told plaintiff that he could cany through the drain in spite of bim The Board had promised to carry pipes through the garden, but Mr Bassingthwaite would not allow them to do so.

John Cowcll Hoys deposed to having surveyed the hangiora district as far back as 1819 and 18".0. He knew b'aasingthwaite'a gully. He did not, a;rec with iVJr Dobson that it was a blind gully. All the storm water in the district wont down the gully. This closed the defence. The learned counsel on both sides addressed the jury. His Ho'-or summed up. He said there was no question that the action of tho Koad Board was illegal, that was admitted by the payment into Court. '! hen came the question of the amount of damasres. Now, no evidence had been given of the value of the reversion, but evidence had been given by the payment of 40s into Court. It would be for them to say whether the damage done was beyond the 40s. The Koad Boiirds throughout the country hid an important public duty to perform, and gentlemen gave up a considerable portion of their time to the discharge of it. But, whilst this was so, they must also consider that the private citizen had a right to demand that tho law should not be wrested so as be should suffer injury, when, as in this case, the lload Board had without legal right entered upon his premises. Now that they had entered upon a new era of local self-government it would bo competent for them to consider whether the damages they would give, if they determined to give more than tho 40s pnid into Court, should not be such as would be a warning to Eoad Boards throughout the country. They need not give vindictive damages, but it would be competent for them, if they thought proper, to give substantial damages over the 40s paid into Court. The jury then retired to consider their verdict, and after a short absence returned into Court with a verdict for the plaintiff for .£43 or .£SO, including the amount paid into Court. His Honor, on the application of Mr Harper, certified to the case being a proper one for a special jury. ____^__________ l _