THE COURTS.

Marlborough Daily Times, Volume II, Issue 128, 11 June 1880, Page 3

THE COURTS.

Blenheim, Thursday, June 11. (Before H. Alclutire, Esq., R.AL] DIVERSION OF THE OMAHA RIVER. Thomas .Atkinson Dickens, William Dob* inson, Cornelius o‘Dwyer, Charles Waters, Samuel Bowler, and James Andrcll, of Spring Creek, settlers, were chained on the information of Charles Redwood, Chairman of the Lower Wairau Rivers Board, with feloniously, unlawfully, and maliciously damaging a certain dam of the river Omaka, at section IG4, Omaka District, by means whereof certain land was in danger of being overflowed and damaged, against the form of the statute made and provided. Air Sinclair appeared in support of the information and Air Rogers for the defendants.

Air Sinclair said the information was laid under the 30th section of the Alalicious Injuries to Property Act, by the Chairman of the Lower Wairau Rivers Board, on their behalf, and according to their instructions. The dam in question was completed by the Board before any injunction was obtained by the Spring Creek Board to stop the works. It would be contended for the defence that the defendants had not acted maliciously in the technical sense of the word, if they were acting in what they believed to be the exercise of a right, but he submitted that the act was illegally and wilfully done, and that it was not for this Court to decide the point whether defendants committed the act in the exercise of a supposed legal title; that would be for a higher Court to decide, if this Court was satisfied that the act was committed. He quoted the case of the Queen against Palmer —determined in the New Zealand Court of Appeal in 1573. The land where this dam, was situated was on the land of Mr AJelvor, who had given the Board permission to construct the dam in question, which protected his property. Charles Redwood, chairman of the Lower Wairau Rivers Board, <fcc., deposed : —I am the informant in this case. The Board has diverted the Omaka river into the Opawa at section IG4. The work was performed by Air Desmond, contractor under the Board. A dam was constructed across the Omaka about a chain in length and a channel was cut into the Opawa, the effect being to turn the water of the Omaka into the Opawa. Before the construction of this dam the Omaka has at times inundated a large area of land—between 2000 and 3000 acres and a portion of the town of Blenheim is periodically damaged by the overflow of the Omaka. The effect of the dam would be to prevent the damage to the town. Air Ai’lvor is the owner of section IG4. The Board had his permission to construct the dam. The Spring Creek Board brought ar action against the Wairau Board to rest n the latter from proceeding and sen l me with an injunction. I went up to the works yesterday afternoon and saw a number of persons vigorously at work destroying the dam, which they succeeded in doing to a great extent. William Robinson, Witliey, and Andrei! were at work removing the dam. They had not received permission to do this. I told them they were doing wrong. They all came round me like jackdaws, and I said I would talk to them one at a time. Mr Dickons was served with a summons, He said he was only a spectator. Summonses were served on the others. The value O; the dam was about LSO. It will cost L2O or L3O to repair the damage. If a flood occurred the whole would be carried away. Every year the Omaka river has got nearer to the Opawa. The site of the present clam was dry land two years ago. The injunction served on me makes no mention of a dam [Copy of injunction put in.] The work will effect no injury to the Spring Creek Board but the reverse ; they will now only get one-third of the water instead of two-thirds of it as they formerly did. Paul’s bank is considerably above the point where the Omaka flows into the Opawa. The Opawa river-bed is half-a-mile wide at this point.

Cross-examined by Mr Rogers : —The Omaka going into the Opawa will never flood the latter. The two rivers are never up together. The object of the diversion is to reclaim a lot of land now periodically flooded and to save tlio town of Blenheim, and will injure nobo</y. We did not get the permission of ev6ry owner of land on the Omaka below the dam to divert the stream, nor of the owners of the land facing the Opawa. This dam is not in our district. It is on Mr M’lvor’s land and he gave bis assent. When the work was inaugurated we had no reason to suppose the .Spring Creek Board would oppose it. Subsequently we got a letter from them objecting to it. I told Mr Desmond, the contractor, I would like him to get the work done as soon as possible. I decline to say whether this was done in order to have the work done before an injunction arrived to stop it. Dickens told me he had better counsel than we had. I understood him to mean that they were acting under legal advice. The Omaka was diverted into a new channel altogether. The dam was entirely completed and the channel partially so when the injunction was served. By Mr Sinclair —There have been no complaints made to me by owners of land fronting on the Omaka below the dam. They say if they had the power they would have me knighted for what I have done for them, which has improved their prospects, so that they will soon be independent gentlemen instead of mudlarks. I am being everlastingly stuck up by people in the streets, congratulating me. This dam is the most important of our works, and without it the rest would be useless. There is plenty of water now in the Omaka below the dam for all practical purposes. Gustave Bary, overseer, for the Vairau Rivers Board, deposed to seeing the six defendants at the dam yesterday. Dickens, Bowler, and o‘Dwyer were on the bank looking on ; the other three were working

the dam. They had horses and carts to carry away the stuff. Thomas S. Harrington stated that he was foreman, in the employ of Mr Desmond, contractor, said he was at the works yesterday. He saw the defendants there. Mr Bowler was one of the first to commence removing the dam. Witliey and Andrell were working. Dickens did not work himself, but lie pulled a bottle out of his pocket and tried to get the cork out with a knife, but could not manage it, and handed it to Wm. Robinson. Dickens told the men to go on with the work. They had a drink, and more liquor was afterwards fetched from Renwick.

Police-Sergeant Cullen deposed to the service of the summonses on the defendants yesterday afternoon. Dickens, Bowler, and o‘Dwyer, were on the bank, and Witliey, Robinson, and Andrell at work in the dam, digging it down, arid carting the stuff away. The three kept on working after the summonses were served. Robinson told the men to take no notice of the summonses but go on with the work. John Molyneux corroborated the testimony of the witness Harrington. Robert Mclvor, settler, Renwick Town, stated that he is- the owner of section IG4, Omaka, on which the dam in question was erected by the Lower Wairau Rivers Board who had permission from him. The river has been running over where the south part of the dam is since ISOS. Previous to the flood of that year, the Omaka never kept more to the south than it now does. In the past two years more than half of the flood water has gone into the Opawa. Yesterday there were as many as 20 men at the dam, amongst whom were the defendants. Y\ itness told them they were on private property. Witness bad not given any of them permission to remove the dam. 5\ itness has agreed to sell a portion of his land to the Wairau Board, but the place where the men were was not that portion. In reply to Mr Rogers, the witness said in his opinion in case of ordinary flood, all the water would go down the new channel if the darn was left. The site of the dam has been river-bed since 1808. 'This was the case for the prosecution. [The case for the defence was proceeding when we went to press.]