DISTRICT COURT.

Globe, Volume XXIV, Issue 2551, 12 June 1882, Page 3

DISTRICT COURT.

CHRISTCHURCH. This Day. [Before his Honor Judge Ward.] The sitting of this Court was resumed at eleven o'clock this forenoon. H. MASKS V E ELLIS. This case, a claim for £27 10s on dishonored promissory note, was adjourned by consent of counsel, Mr George Harper and Mr Button, for a month for further evidence. E. BEECH y CHRISTCHURCH DBAINAQB BOARD. Mr Garrick, who on defendant's behalf, claimed £IOO damages, stated that Mr Button’s client, the plaintiff, was ill, and wished an adjournment. Mr Qanick had no objection, provided witnesses' costs wore allowed. Adjournment accordingly for a month, coats of throe witnesses for the day to be paid by plaintiff. W, A, BBNN V W. SAUNDERS. Claim for £llO 16s 4d, balance alleged to be due on sale of sheep. Adjourned by consent on application of Mr Harper, for plaintiff. O. DUGGAN Y BEQINA. Claim for £7l 7s 9d damages. Mr Harper mentioned that this case had been withdrawn, J. STUDHOLMB T BEQINA. Claim for £2OO, damage to grass, fences, gatepost*, wire-strainers, &e., igniting through hot cinders falling from a railway locomotive, the Government employee, as alleged, neglecting proper precautions to prevent fire spreading from land along the lino to plaintiff’s land, Mr Geo. Harper for plaintiff, Mr Joynt for the Crown.

A general denial was pleaded; also, that defendant was not responsible, and that an action would not lie.

His Honor intimated that the second and third pleas might first be argued, and mentioned, incidentally, that he had himself recovered damages in a similar case, as, under the circumstances, counsel might deem it expedient to take the case to a different Court.

Mr Joynt said he saw no necessity for this. At the same time the Crown was prepared, if necessary, to take the case to the highest Court of Appeal. He submitted that, even assuming negligence, no action would lie. It was for the other side to show that this particular act of negligence was done, not by a Government servant, but on behalf of the Governor ao distinctly authorised by him or by the Executive Government for her Majesty. Mr Harper sought to place the Crown in the position of an ordinary railway company, working under statutory powers, such a company being unquestionably liable for neglect shown. By the Public Works Aot, 1876, taken in conjunction with the Act of 1881, the Government had assumed the position of a company. It was true, that, up to 1831, farms might have been injured and accidents might have occurred through the negligence of public servants, without redress being available. Mr Harper referred to an unreported case where a man, on appeal, had, prior to 1831, failed to recover damages for being “ almost decapitated’ 1 by contact with a telegraphic wire which had fallen across a street.

Hia Honor stated ho should like to see a copy of the case in Mercer v the Queen, tbo telegraphic wire case. Counsel for the plaintiff having stated that there was a p i ted copy at Wellington, taken from the morning papers, his Honor said that it might bo a point for Mr Harper to argue whether the uee of a particular coal, invariably giving out dangerous sparks, had been specially directed by the Executive Government, in fact by the Minister of Public Works. It seemed not unlikely, so far, that evidence would have to bo adduced.

Mr Harper thought he would have to go on with the case, having witnesses present. Counsel accordingly proceeded to open the ease, and, as a formal matter, called E. B. Levisage, clerk of the Survey office, who produced maps of Hinds township and Government reserves on either side of the railway. The lino ran through a Government reserve from the Lowoliff railway up to the southern boundary of the township. Gross-examined —Where the line of railway intersected the south-western boundary of Hinds township, the width of the reserve 1371 was something less than half a mile. The Court adjourned at a quarter past one o’clock until two, the case of J. QLEALY V P. II'GRATn.

Claim for £l9O 6i lid, wages, being adjourned, on Mr Grassoa’s application, until to-morrow morning.

On tho Court resuming, O. H. Dowding, manager for plaintiff, deposed—On 2nd January last was at tho yards, three miles from the railway, and saw the morning express going Smth, shortly after leaving Hinds station. Noticed smoke in two or thr;e places. Presently a much larger body of smoko arose, and then flam‘B wore observed coming down the plains. Sent a shepherd to the scene of the fire. Afterwards witness went, accompanied by a man. The fire had then burnt out of the larger paddock, containing 1500 acres, into the lower. The larger fronted 160 chains on the reserve, and embraced reserves numbered 30753, 28263, 27015, 27059, 22208, 27914, 28267 and 27913 on plan, besides portions not marksd. Put the fire out in half an hour in the lower paddock. Went through tho big paddock to tho top boundary nearest tho railway. Saw a continuous stream of tiro from the top boundary to tho line through the reserve. Wind was north-west, at times very strong. The gorso fence along the reserve boundary was burning for a length of fifty or sixty chains. The fence was four years old, and pkn'od on a la-k 2ft high. 9 hero was also damage done to stakes, posts, strainers, and a gate—lo2 chains wore burned out of 126. The fence intervening between tho two paddocks was burned for a length of 88 chains. The gate in this fence escaped. Nearly all the grass (native) in the large paddock was consumed. No sharp were on it. A lot of grass in tho lower paddock was burned. The tussocks wore burned to the ballasting on the line. Close to the railway line, on the reserve, noticed two or three cinders as largo as fowls’ eggs. Ground was tceoped out in pieces on either side of the ballasting, while in other places tho ground was level. Fires repeatedly sprang up after trains passed. Had heard that the tussocks on the Government reserve had bren lighted by the authorities since the fire in question, in order to keep the tussocks down. Had had a fire in 1878. and claimed £1670 from Government, but did not get it. The chain was wrrth £1 » chain. There were eighty-eight chain*, which

would cost 6s or 7s for repairs. The Native grass, witness thought, was worth 9i an acre. The use of the paddock was lost for the summer months only. The fence along the Coldstream road was not burned. Cross-examined Two or three minutes affer the train had passed witness saw smoko. The fire was burning from 11.30 a.m. till half aa hour after midnight. Picked up the cinders ten days after the fire. Did not see them until that time had elapsed. In the spring, hut not in the autumn, it is usual to burn tussocks. Put on no stock since because the fences were burned, and there was nothing to eat. The gorae, Ift to 2tt high, would require 6i or 7s a chain to repair properly for shelter. The fence would last for ever, [Mr Joynt said this was a pathetic way of putting it. Laughter.] On Mr Studholrae’s land there were between 2000 and 3000 acres burned. In the large paddock 1100 acres were burned, in the lower from 1200 to 1300 acres. Had 5000 sheep on in October and November. The tussocks were heavy in soma placer, and there was a short growth of undorgrass. Thos. Eastwiok, shepherd on the Coldstream property, gave corroborative evidence. [Loft sitting.]