RESIDENT MAGISTRATE'S COURT.

Kumara Times, Issue 1095, 3 April 1880, Page 2

RESIDENT MAGISTRATE'S COURT.

ThuksdaY, 31st March. [Before J. Mackay, Esq., R.M.]

MURPHY V. BLKWMAN AKD OTHERS,

This was a claim for £IOO damages sustained by plaintiff through the water from the tail-races of defendants running over his freehold property at Westbrook.

Mr Perkins appeared for the plaintiff, and Mr Seddon was allowed by the Court to appear on behalf of the' defendants.

The following is the additional evidencd adduced in this case :--•

John Hayes, sworn, deposed : I am a contractor, in- charge of the Greenstone road. I know the road well fo • thelast five years. I know the l hea > of tailings on the south side of" th 5. road; it was originally all bush thee ■ with a swamp'through it. The swam . ended in a water-course about twent • yards from the lower end of Murphy * land, and emptied into a creek. -The drainage of the terrace came into th ; swamp, and from there into the creek. 1 know a hollow in Murphy's groun I where the water has been laying latel ?. Tudball's store stood on the very spib were the water now spoken of is "a; present, and it was always sloppy an I muddy there. I have seen the wat j • crossing the road on several occasion since July last. I sent notices t> Sheedy and party, and also Corrig 11 and party, about the water coming ov .• the road. They have erected a sto - bank since, and I have not lately se 5 1 any water crossing the road to spe 1; of. The tailings have encroached o.j the road a little.

To Mr Seddou : I cannot say Tudballs store stood on the exact spr. where the hollow now is in Murphy's paddock. The water would not effee; the hollow unless a culvert had been stopped in the *oad. I have never seen a culvert at the spot marked in the plan produced. The swamp and hollow ground are nearly-level. T" ie holes opposite Murphy's were never cut for a drain; they were merely to get gravel out for the road. Wluu the culvert was put iu above Murph/'-f house the swamp was hot filled wilh tailings. It would be about four or five months ago since I saw the water crossing the road. The water I saw then did not go into Mr Murphy'a garden. I had seen grass growing in the hollow, previous to the Ist July last.

Re-examined by Mr Perkins. I have been eon tractor for the road for two and a-half years, but I have never looked for the culvert referred to by Mr Murphy. To the Magistrate : I know every culvert on the road, as it is my duty to keep them clear. The-Greenstone Creek has been filled up with tailings of late, and this aftected the road; bub I cannot say if it has aftected the road at Murphy's. I have never seen the Greenstone Greek come over the road at Murphy's or on to his ground. Patrick Foley, sworn, corroborated the previous witnessed evidence as to the nature of the ground, and added that he knew of no culvert in the road at the place referred to in the plan. William Bourke, sworn, deposed : I am a miner, and knew Murphy's ground before the sluicing commenced at Westbrook. There was a watercourse and a little creek where the tailings are now. M'Gill and Blewman's party helped to fill up the creek. Some of the water from the terrace goes over the road. I have seen the hollow in Murphy's paddock filled with water. The paddock was not so bad until lately ; when the sluiciiag started, the water went over. I only saw *he water in Murphy's garden, but 14ttd not see it come across. To Mr Seddon :. It is over twelve months ago that I worked for Blew man. I expect they were filling the creek up during the time I was working for them. I would be about eighteen months ago since I last saw the creek. If the flood was very high in the creek, it might come over the road. I have never seen any culvert on the road

there. . The creek was about a chain in from Mnrphy's and about two or three feet deep in places. [The Court here adjourned from 6 o'clock to 7 p.m.] On the Court resuming, Mi' Perkins Said that, although he had closed his case before the adjournment, he wished, with the consent of the Court, to call two additional witnesses who were absent at that time, but were now in Court,

Mr Seddon objected to any fresh evidence being heard, as the case for the plaintiff was closed. The Magistrate said that in a case of this nature he would sooner bear additional evidence than otherwise, and would allow the witnesses to be placed in the box.

Walter Levett, sworn, deposed : I am a storeman. I know the property at Murphy's as I have been in the habit of crossing the ground since January last. I have seen water coming from the opposite side, and washing the road away ; it was coming out of a big tail race. From this side it would be a little above Murphy's honse. My attention was chiefly directed to a hian who was clearing away the stuff with a shovel to prevent the water wasting away the road. To Mr Seddon : I was spoken to this afternoon by Mr Murphy as to "Whether there was any water in the hole when Tudball's store was there, and T replied " Yes, when the creek was flooded.'* I was only at Tudball's about five months, and I only saw a great flood there once. I saw the water running over the road between Corrigan*s and Murphy's. The water was running across the road towards Murphy's. The water 1 saw was coming out of the largest tail-race, that is boxed. The amount of water crossing the road would be np to my ankles, and about 16 fedt wide where I crossed it.

Re-examined by Mr Perkins: There was grass growing there but the ground was not usually flooded.

To the Magistrate: I was going to the Greenstone when I saw the water referred to, attd three hours after (when I came back) there was still water in the road.

A witness named William M'Gee also gave "evidence on oath, but his evidence was withdrawn" by the learned counsel for the plaintiff. Mr Seddon, for the defendant, took exception to the plaint as also the title of Mnrphy to the ground in question, and called the following evidence for the defence:—

John Corrigan, sworn, deposed : I am a wages man in Blewman and party's claim, Previously to July Ist last the space between the terrace and Murphy's ground was filled up with tailings. There was no creek or waterway at that time. Before the sluicing commenced, there was a water-way in tbe swamp ; At the time Brogan and party were sluicing, I was a partner, and we had to buy three acres of land from Keech and Malloy before we could go on with oltr sluicing. We put in a bank or dam opposite Mr Murphy's house to prevent any tail-race goinj; on private property. I know the hollow ground in Murphy's paddock, but I could not call it swampy ground. It was in October, 1879, that the sluicing commenced there. We had been sluicing previously to this in a gully at the back of the terrace. I know that the ground there is reserved for mining purposes, by seeinc; a notice that was posted by Mr Waiden llevell. We deceived notice from Mr Hayes as to our water crossing the road. To Mr Perkins, : We were running Water over the road six months ago, part Was from the tail-race, part from the Erin-go-Bragh race, and some from other parties j it was all going into Messrs Keech and Malloy's paddock. I remember when Blewman lived opposite Murphy's ; there was a bridge or plank across the water in front of his hcuse. The dam wa3 put in by Clunes and Eckett's party, to prevent water going on private gronnd. The dam is not there now. We gave Keech and Malloy .£IOO for throe acres of ground, because we could not get our tailings or water away except over private property. The swamp is now higher than the road. The Hat has been tilled up by four parties, and we were one of them. The water broke over the stopbank once in February last, and it swamped Murphy's garden. I turned oft' the hatav immediately the overflow was repwted and the water was only in the garden about an hour. lie-examined by Mr Seddon : There was a very good crop of cabbages in the garden. Ido not think the water did any damage, but rather good, to the garden. I have seen the road flooded from below my house to the rise in the road going.to Mr Murphy's. Two parties sluicing at the same time caused the water to cross the road.

To the Magistrate : I never saw but oncfs the water from our party go into Murphy's garden. I have been engaged on several occasions in stopping the water from crossing the road on this side of Murphy's house. Michael Sheedy, Bernard Brogan, Bernard O'Rouike, and James Kngg were all called, and some of them most distinctly stated that the culvert pointed out on the plan had never existed, but at the same time admitted that they had seen water on Mr Murphy's ground, the first named witness stating that he had seen the water in the garden. Mr Seddon having addressed the Court on behalf of the defendants, Mr Perkins replied, and

The Magistrate, after briefly reviewing the evidence, gave judgment for the plaintiff, for £\ as damage occasioned to his property by the defendants, and also allowed the plaintiff £7 lis for professional and witnesses costs.