VARIOUS SUPREME COURT.

Hokitika Guardian, 2 April 1921, Page 4

VARIOUS SUPREME COURT.

SITTINGS AT HOKITIKA. II li FRIDAY, APRIL Ist. —— ci (Before his Honour, Air Justice r* llerdman). n w A FT K R NOON SI TTIN G. l'i The Court resuniecf at 2 p.m. a PFTITION OF RIGHT. « (Continued.) t Kapitea Gold Dredging Coy. v. His Majesty tho Kino. f Air Joyce with him Mr Kiteliingham or petitioner; Air Park tor rcspon- ( lent. 1 A claim lor £952 Pis 5(1, general .. and special damage arising out of the a Company’s dredge at Kapitea (lock. Gerhard Fitzgerald deposed he was a . car driver at Kumara. He drove -Mr , Rochford and others to the Gig dam on i Tuesday, April 27. Heard Barratich tell Rocliford that if the gates had , been up in the usual way three times as much water would have gone through. There was two feet of water in the byewash. Water was over the Loopline road where he turned the car. There was water between the Little Kapitea and Waimea, on the road that hold them up. Returning, was told by the roadman that water was over the Little Kapitea bridge. On slh June went back to the big dam. The seven gates had been taken up and the water in the dam was level with the bye-wash. David Bell deposed he was a gauger on the Government water race. On April 271 h went out to the big dam. Found seven gates burst out. The water was up to the stringer to the Loopline bridge. Robert Burrell deposed he was a mill- . wright at Kumara. Produced a plan that he had prepared of the gates from the bent screw s. II is observations - were made a fortnight ago. Edward Steels deposed lie- was a . gauger on the Kumara water race. On j April 21, there was a big flood, the | largest he had known for 12 years, do- | jug damage on the roads that bad never i been washed out beiore. The Little; Kapitea was iu very high tlood. It | rained very heaivly trom S in the morn-! ing till -I in the afternoon. Went out j to the big dam on .May 3rd and took out the damaged gates and roads. Donald Behan deposed he was caretaker of the Wainihinihi water races. There was a big flood in the Waimea creek in the afternoon, in some places i 12 feet deep. To Mr Joyce.— Have seen Hoods as big before. Vincent Pfeifer deposed on Anzac Dav lie was at Stafford. The Waimea creek was in a very big Hood alter 2 o’clock. Henry Bui land deposed lie w as a miner On Anzac Day it was very wet in I Inkit ika. On June lib \ isiicil the diedge and loiind it silted up. To Mr K itehinghnm.—The Hood icse in i ho afternoon and was one ol it •* highest. 'The 1913 tlood was a iv'-oid one. the Anzac Day Hood 2in higher, and Inst Boxing Day -I inches higher m (~ Robert Millson deposed lie was a gauger on the water race. On Aai it 21ih ii was raining very heavily in the afternoon. 'On the Saturday previously the little dam was 10ft down. Saw the Kapitea creek on the Monday morning. There was a very big Hood in the creek, with about 3000 beads coming over the little dam embankment. It would be 2: i dee]) and nearly 20011 wide. The Hoed was then starting t<> fall, owing to the slackening of the rain. To Mr Joyce He told Barratich to keep the dam full. Had .seen the dam full to the top of ihe gates IS months ago. Considered it would take water (i hours to travel from the little dam to the dredge. Had only soon one Hood before, some two years ago. as this one in the Kapitea creek. James Rochford deposed he was manager of Government water races at Kttmara. Anzac Day was wet from 9 a.in and it rained heavily all day. About ti p.m. Barratich reported that the gates of the dam had lifted and that be was afraid the dam would carry away owing to the extra water. Told him he did not think there was any danger. Went out on Tuesday morning and four gates were in position and six wort* pushed out of position. At that time about 10(1 or 100 heads were going over the by-wash. The gates had often been opened on other occasions, allowing fit)!) to 700 heads to How inLo the little dam, without doing any damage, sometimes when the little dam was full and it would then run over the little dam down the creek. This practice lias been followed since the gates were put in by his predecessor, Mr Aitken, in the year 1900, and no damage had been caused to anybody, lie did not think that the wttler from the by-wash had any effect in the stranding of the dredge. Had the gates been in order, they would have been lifted and more water would have gone down thp creek than did when the gates pushed out. On the Tuesday there was a very big . Hood in the creeks, both little and big Kapitea. The gates saved 20 million feet of water from going down the ■creek. To .Mr Kitehinghnm—Assuming Barra ticli’s statement was correct the whole of the rainfall, with an additional foot of water over the whole mien had gone down the creek, lie admitted that the gates had been pushed out owing to the condition of the timber. He disagreed with Mr Barratich as to t!-e height of the wnt T of the dam. James C. -Mnefarlnno deposed -he was an authorised surveyor. lie visited the Loopline dam on 23rd March. The uprights of the gates of the by-wash were had. He made a calculation that when the gates were damaged 270 heads would go through. John Blnnehiield recalled by Mr Kilcliingbam, stated (lie width of the creek was 3J chains and two years ago where the dredge was it was li chains wide. This completed the evidence and tlm Court adjourned at 5.45 p.m. till next morning at 9.30 .o’clock when Counsel will address the Court. SATURDAY, ARRTL 2nd. His Honor took his seat at 9.30 a.m. | , Mr Park addressed the Court. Tie ! held that if the gates had not broken uvny that more water would have let mt by the caretaker, while there was in evidence when the four gates of the ioven had broken away. The evidence a

howed that there was no sign of a lood at the head of the creek, below lie dam, none of the bridges at the op of the creek being damaged. Tho lood was declared by all witnesses to ( mvc been abnormal. j His Honor said what he had to (le- , •ide was whether there was a sudden ; -scape of water, due to negligence or | iot to negligence, and whether such vater caused the accident. ! .Mr-Joyce then addressed the Court for the suppliants, and referred to dam-, iges. His Honor stated what he . wanted referred to was the question of the escape of the water. , Mr Joyce said he understood the defence was that it was the act of God. j His Honor said there was also the i defence that if the gates had not bur»t, . then Barratich would have lifted the gates and would have allowed as much j water to flow. ! Mr Joyce said "he held that the. gates ; should not have been lifted at all. The gates were put there for the.purpose of increasing the capacity of the dam. I His Honor said the onus of proof was j on Mr Joyce. Does the evidence show the damage was done by excessive rainfall, or was it caused by the How of the dam water. Mr Joyce held the Crown were negligent in allowing the stops ot the gates to become in the condition that they were, and that had they been m proper order the water would have been withheld, whereas when the gates broke away, there was a heavy rush of water that caused the damage. He submitted that if the flow of water bad ang- ! men ted the flood, the Crown were then liable. He contended the Crown bad no right to control the water as they did by erecting the gates and therefore were liable for damage. YERDTCT FOR RESPONDENT. I His Honor thought the plaintiffs have ■ failed to prove their ease. The onus of . proof rested with the petitioners. The main point at issue was a question of j fact. They had to prove negligence, j He could not help being impressed with j the evidence of the conditions that pre- ! vailed. It was quite clear that there | had been an abnormal flood on April | 25th. What; he had to decide was if i the damage done to the dredge was | done by the flood or was partly caused , by I lie flow of water from the dam. j The by-wash had been placed there for | the safety of tbe dam, and for releasing water when there was an abnormal rainfall. The dam had been constructed under the Public Works Act and the Department were entitled from time t< time to release water from the by-wash Instead of releasing at least three gates, the gates were released for the caretaker by the force of water. Dining 1 1 is absence at Kumara a furthei four gates were partially forced open Mo could not go tho length of saying because this happened that the Crowi could he held responsible. He eouli not accept the view that it would liavi been the duly of the Crown to hav< held all the water in the dam. Hi therefore held that the Crown could not be blamed for allowing the escape ol the water from the dam. Could it be held that tbe quantity ol water that escaped on the night of 201 i April from tbe dam contributed to the damage to the dredge. He "as eon vinced the conditions at tbe time wen abnormal. He could not say that tin ad lit ion of 251) heads of water to the 2()()() heads going over the little dam could have had any perceptible effect on the dredge which was ten miles away whereas no damage was done to tin two road bridges only a tew ehaim away. He held that it had not beet proven! that the Crown had been {guilty of negligence or that the Crown "a> guilty of an offence in allowing walei to escape on the night ot the 25th April, Judgment would be given tor respond cut, and costs according to scale am wit nesses’ disbursements to be settled by the Registrar. Counsels’ fee was fixed at 935 for the first day; sei-oiic day at 915 15s, and the third day at L* 7 /s. i A SETT SETTLED, ii. H. Smith v. IV hi ley and Wliilcy claim for two dishonoured promisorv notes £lO-25 13s Bd. Air Joyce for plaintiff, Mr Park for defendants. Mrf Park stated he had served Mi .lover a notice of confession aS thci had a guarantee from the company ' rat the matter would be adjusted. Judgment was given tor pin inti 11 lot 91025 13s Bd.. with interest at 8% Lom Kith. November, 1920, with costs as ; ai scale, witnesses expenses and disbursements to be fixed by the Registiai. A PETITION. In re estate of John Giesking, petition for order for estate, to be dealt wttli ljv the Deputy Official Assigned ; u bankruptcy (Air Joyce). Petition granted. This concluded the business and ‘ho Court adjourned.tit,H.3o a.m.