SUPREME COURT.

Marlborough Daily Times, Volume II, Issue 184, 24 December 1880, Page 3

SUPREME COURT.

Blenheim, Monday, Deo. ‘2O. (Before Mis Honor the Chief Justice.) DODSON V. REDWOOD. For the plaintiff, Mr Conolly and Mr Rogers ; for defendant, Mr 'Travers and Mr Sinclair. The following jurors were sworn ; —\\ . Adams, \V. Atkinson, D. Wemjss, P. R. Mcßae, 0. A. Smith, J. R. Card, J. B, Croon. W, Wclford, A. Lambert, J. Campbell, F. T. Farmin' (foreman), A. J. Norberg. James E. Dodson was fined L 5 for nonattendance.

Mr Conolly, in opening the case, said this was an action brought by the Chairman of the Spring Creek Rivers Board against the Chairman of the W airau Rivers Board, which Boards were constituted

under the Uawkes’ Bay and Marlborough Rivers Act, and the action was brought on an injunction applied for by the Spring Creek Board. The channel and the dam were not in either district, and the question might arise whether either Board had jurisdiction outside its own district, even if the work's undertaken were beneficial. The Sp ing ('reck Board had suffered from the incursions of the Opawa river, and banks had been erected called O’Dwyer’s Bank ! and 'Robinson’s Bank, and in consequence I of works erected by the defendant’s Board : the banks had to he put back. The Opawa | river was a terror to Spring Creek. It i would bo contended by defendant’s Board ; that the Opawa was such a large river and ! the Omaka such a small one that the diver- | sion of the Omaka into the Opawa made no i difference, but he should call evidence to I refute that statement. It would also he | contended by defendants that the two | rivers were never in flood together. Ho I should bo able to show that this was not | always the ease. Witnesses would ho i called on both sides of a quasi-sciuntifie nature, and the jury would have the dillicult duty east upon them of saying which side was the soundest, which was a question it was difficult to decide satisfactorily, and lie regretted, although he had a great respect for juries, that this case should be tried by a jury. The main question was—j Did the works of the. defendant’s Board ! injure the protective works of the other I Board? i J. 0. Western, surveyor, &e., deposed i to making a plan of the locality (produced). | ft shows the protective works erected by the Spring ( ’reek Board and the channel cut by the W'airau Board, and the dam erected by them. The plan and survey were made about a month ago. The chan- ] nel commences at the Omaka liver and runs to the Opawa. It is three or four chains outside the Board’s district. It is IMft Pin wide at one end and about 40ft at I the other. 'The channel has washed wider and deeper than when first cut. It is about M 0 chains from river to river. About 17 chains were originally cut and the rest has been made by the river. The whole of the Omaka water was coming down the channel when I. saw it. The dam originally extended across the river some SO feet, but about 40ft of it was knocked down by somebody. The dam is outside both districts. ! The Opawa is a shingle-bearing river, and j so is the Omaka. There is a fall from the ; Omaka to the Opawa, and at the lower end it is about 7ft. The fall altogether is about 20ft. Witness did not take levels. There is a bank on each side the channel. In a flood some of the water would go down the original stream of the Omaka. The greater part would go down the channel. It would carry a good deal of shingle, and the current would he diverted. The shingle would I be thrown chiefly on the plaintiff's side : and would be apt to wash the hank away. ■ The Opawa Hows from Fast to West. The new channel is from South to North, j There are no protective works at that part. Raul’s hank is higher up. o‘Dwyer’s bank j is about four miles lower down, and Rob- : inson’s about live miles. Opposite tbc i channel the Opawa riverbed is from lfi to 20 chains wide. At O’Dwyer’s it is about 20 chains. Where the water is running ordinarily it is narrower and deeper at O’Dwyers than higher up, and is close under the bank on the North side, and so it is at Robinson/s. The general tendency of the river is to keep to the North. The turning the Omaka into the Opawa would i raise the river. If the wind was Southerly

at a time of flood it ■would drive the water against the North bank which would ho cut away. The rapidity of the current would also do damage to the banks. By Mr Travers :—1 never gauged the Omaka or the Opawa. It would be very difficult to guage the Opawa. At present the W’airau and the Opawa carry about the same quantity of water. The Omaka is fed by swamps and springs between Blenheim and the channel. There is a large body of water in the Opawa at ordinary times. It is a large powerful shingle-bear-ing river, with swift current. Its average breadth is 20 chains for upwards of 7A miles, with banks averaging f> feet. The river goes right against the bank at Robinson's, and then turns to the Southward, In a big flood the Opawa overflows its banks. The velocity is about 12 miles an hour in flood at the narrow places, it would average about S miles an hour from Blenheim to the W’airau beach. This would give a speed of 2M7 yards to the minute. The Omaka in flood would carry about a twelfth of the Opawa. The Omaka drains an area of about 80 square miles. It is in Hood some live or six times every year, The chief cause of floods in the W’airau are the North-west rains and melted snow. The source of the Omaka is some 2000 or MOOO feet above the sea level. In a dry season there is very little water in it near Renwick. The W’airau lias always a large volume of water "Witness has not tested the specific gravity of the rocks in the Omaka and Opawa rivers. There may be a difference. The shingle of the Omaka is small, much smaller than that of the Opawa or W'airau. At the point where the channel is made, the eddy would cause a bank to form. The hulk of the water in the Opawa is in some places on.thc South side.

By Mr Conolly A hank is beginning to form already in the Opawa at the channel. There would he a stream running through the channel in flood 7or 8 feet wide. There is a rise of about M feet with the tide at the Omaha Bridge in Blenheim. His Honor said it had been suggested to him in Chambers that it 'would he well for the jurors to visit the locality. Possibly many of them* were familiar with it, and if so it might it not he necessary. 'l'lie Foreman after consulting with his brother jurors said several of them thought it would desirable to visit the place. It was then arranged that Mr Dobson and Mr Douslin and the Sheriff or his deputy should go with the jury, and the case was then adjourned until 7 o’clock in the evening.

Oil resuming, George Dodson deposed:— I am a farmer residing at Spring Creek, and Chairman of the Rivers Board. Have been in the district 2(i years. Remember a channel being cut from the Onialca to the Opawa. and also the erection of dam. This was done about (i months ago. Before it was done part of the Omaka in flood time would go over the bank, but now in ordinary time. Now the whole of the water is diverted. Report’s have been made by the Inspector to the Board of the effect this has had on the Opawa water. Robinson’s hank was chiefly constructed by the Board. Works have lately been undertaken at it by the Board. A portion of the hank has been put hack as the river was working underneath it. If Robinson’s hank was destroyed a large amount of damage would he caused to valuable property. _ 400 or 500 acres or more would lie injuriously affected. Both the Omaka and Opawa have been water courses ever since I knew the district. I have not seen the rivers in flood together, but I know that this has occurred.

By Mr Travers:—Before Robinson’s bank was erected the water of the Opawa in flood time would overflow the bank. Robinson’s bank was about three chains from the river at the nearest point. The banks of the river are steep, and about S or 10 feet high.

'flic banks are easily undermined by water. The Opawa at present flows dead against Robinson’s bank. It has done so for two years past. The river has cut into the the bank, and is continuing to do so. Possibly Robinson’s bank may have to be put further back ; but it is hoped that the river will create for itself a dead water, and not eat away the banks so much. There are one or two places on O’Dwyer’s and Robinson’s land where the old bed of the Opawa is visible. It bears no resemblance to the present riverbed. The vast mass of water eomingdown the W’airau Valley has created the present course. Formerly it was a narrow and harmless creek as compared to the present river. The’protective works of the Spring Creek Board were erected to keep out tiie water from the Opawa. I know Mr Paul s property. The shingle is not hanking up all the way on liis side. I dont think the great bulk of the Opawa water is towards the south side. I remember the Provincial Ooverinnent subsiding protective works above Paul’s, to protect Jellyman’s and other land. It has not the effect of sending water on the south side.

The elfect was to coniine the river to its natural channel.

j By Mr Conolly : —The great breach took ; place in 181)8. There was a previous breach, and a large sum of money was then spent by the Provincial Ooverinnent in protective works. AMO was subsequently voted in aid of works carried on by the the settlers. The cost was something over CffOO. The Board has since added to the works, which are above the channel. T. A. Dickens deposed:—l am Secretary and Inspector to the Spring Creek Rivers Board, and was at one time chairman. Have lived in the district 1J years, and am acquainted with the protective works of the Board. O’Dwyer’s bank was erected about li years ago. It is about half a mile long. It has cost from ill JO to £2OO. There was a bank there previously which was washed away. Robinson's bank is below it, and has cost about £4OO. I remember the channel being cut. The Omaka ■water runs through it to the Opawa. The velocity of the latter stream has been increased, and we have bad more trouble with our protective works since the diversion of the river. The hanks of the river easily fall in. My opinion is that it has affected the banks. The Board has had to put hack 12 chains of Robinson’s hank, as the natural hank was being eaten away. The river was within M feet ot Robinson’s hank when it was put back. Thu channel was cut in April, and the hank was removed in September last. In June the river was (i feet from the bank. The bank is 20 feet wide and 7or 8 feet high. The river lias washed away the side of the old hank. Some of the most valuable land in the district is protected. There was a dam put across the Omaka. Myself with others cut it down.

By Mr Travers : —A bend was forming at Robinson's hank when it was removed. The channel of the river may grow a little narrower below the bank. The river seethes like a boiling cauldron there. It is very dee]). About eighteen months ago it was shallow. The bank was extended about two years ago. Between then and now three chains were eaten away. The new bank was put back about four chains. Since September the river at one point has eaten away three chains. This is attributable, in my opinion, to the addition of the Omaka water. I have not visited the channel since we broke the dam. 1 have read

“ Macbeth,” and remember the dagger lie saw.

William Douslin, architect, Ac., Blenheim, deposed that for many years past lie had experience cf the rivers, and had a patent for floating log dams for diverting the course of streams. Know the channel referred to. Before its erection there was no overflow of the Omaka into the Opawa, hut in flood-time about one half of it would overflow, part running down the Renwick Old Road. Both rivers are shingle hearing. There is shingle all through the channel. The channel runs into the Opawa at an angle The direction of the channel is the North-east. The Opawa runs from West to Fast. The effect is to create a deposit of shingle, and the velocity of the Opawa would be increased if both rivers were in Hood together. The friction on the banks would be greater and there would be more erosion. The rivers are occasionally in flood together. They were so on the oth of July last. All the rivers of the district were iu Hood at the same time. 1 know Robinson’s and O’Dwyer’s banks. If the two rivers were in Hood together Robinson's bank would be in danger, but if they arc not in Hood it would not be materially affected by the addition of the Omaka water. Since the diversion, the Omaka in flood-time would have a tendency to carry the water towards the north hank of the Opawa. By Mr Travers When there is ample room, the velocity would not he greatly increased. Witness has not measured the waters of the two rivers. At Robinson’s the banks of the river are friable. It is a first-rate place for a dam. \\ itness could put one there which would prevent the mischief.

By Mr Conolly: The tendency of shingle-bearing rivers is to raise their beds. Samuel Bowler, farmer. Grove Town, stated that he occupied Sections 40 and 41, Wairau West. Know the dam referred to. Assisted to knock it down. There was a flood in the Omaka just before that. It left iloodmarks all along the dam. At least eight feet high. There have been several floods in the Opawa since. The smaller floods do more damage than the large ones, as the hanks get undermined. A good flood in the Omaka pouring into the channel would cause a small flood in the Opawa. Witness has seen both rivers in flood together twice recently. Witness remembers the removal of Robinson s hank. The river has cut away more of the hanks since the Omaka was diverted into it. The Board has put up protective works of manuka and wire lately, opposite Robinson’s, to protect the main hank of the river.

By Mr Travel’s: —There wore three others, but there’s only one there now. Two are gone. There was a flood in October and November. The Omaka was overflowing at Blenheim. Did not see it at the channel at that time. The Opawa is cutting into the bank at Robinson’s. Witness looks on this channel as a dreadful thing, and so would Mr Travers if he’d got any property near it. Witness does not consider it an advantage to have a high flood. The shingle in the Omaka is] pretty much the same as that in the Opawa. By Mr Conolly : —My land would he in daiu'er if Robinson s hank was destroyed. I should he a loser by many hundred pounds. X. T. Pritchard, farmer, Wairau West, stated that his land adjoins the Opawa, and is not far from Robinson’s bank. Has lived in the district lb years. Has seen the Opawa continually. There have been no large floods lately, but a number of small ones. The Opawa overflowed in July last, and stopped me from ploughing. There are some protective works on my land. At the beginning of last winter the Opawa was ten chains from the works ; now it is about three chains. There has been more damage done there within the past 0 or S months than for the previous three years. Eighteen

years ago witness saw all the rivers in flood | together. Witness remembers the removal | of Robinson's bank. By Mr (fonolly The river is working } in towards its old bed at Robinson s bank. | About eighteen months ago it looked as if it was going to form a shingle bed, but it is t now deep there. It strikes against Robin- ! son's hank. Every big flood makes the ; river broader. There was water enough in five weeks ago in the Omaka to turn a mill of 15 horse power. The Opawa would turn a lot of mills.

C. O'Dwyer, farmer, deposed that he is a member of the Spring Creek Rivers Board, and owns land hounded by the Opawa. Knows the channel that was eut, and has observed the rivers in flood time. ()’ Dwyer s hank is on my property. Witness has never seen the Omaka in flood, but has seen it after a flood. The turning of the Omaka into the Opawa raises the water the latter, increases the velocity of the stream, and tears away the hanks. '.I lie river eats away a good dual of my sections. Have lived in the district J 5 years. The Omaka is frequently Hooded in winter. It was flooded last winter. 'The Court adjourned at half-past ten o’clock until next morning.

Tuksday, Dkck.miikii 21st

Thk Conrt sat at 10 o'clock, when the ease of Dodson v. Redwood was resumed. William Robinson, carter, drove Town, deposed : —T have lived in the district MJ years. I occupy land near Robinson's bank, which is named after me. Know the Opawa and Omaka rivers. Since the diversion of the Omaka, on crossing the Wairau to go to Kaituna, 1 have observed the Wairau clear and the Opawa muddy. I attribute this to the Omaka water. The freshes have been more numerous in the Opawa since the diversion. The banks have been eaten away, blit 1 don't know that they have been more so lately than before. Robinson's bank has had to be put back since the diversion. 'The freshes have been heavier lately, and have eaten more into the hank than they did before. Have known the Omaka and Opawa to he often in flood together. By Mr Conolly : —1 know the Wailiopai. It is a little bit larger than the Omaka. The Wailiopai runs a course of (!() miles. The course of the Omaka is, 1 should say, •JO miles. There is very little water in the Omaka just now. 'There have been three or four freshes since the bank was eut away. When the channel was eut, Robinson's hank was JO feet away from the edge of the river. The Opawa water in flood is of a milky color, and the Awatere yellow when flooded. Don’t know whether the Opawa was clear above the eut as the time T saw it milky at Robinson's bank. Have seen the two rivers in flood together .‘>o or 40 times. They were so in March last, and my waggon got stuck up for a day. There had been a good deal of warm rain. By Mr Conolly:—Before the channel was cut some water would go from the Omaka into the Opawa in flood time. 'There are no feeders of the Opawa between the Wairau and the cut. The Opawa water is now clear.

H. Haul, farmer, Spring Creek, deposed : • —1 am the owner of property bounded by the Opawa for about three miles. The effect of the channel is to bring a great deal more water into the Opawa, which will cut the banks away in places where the river is more confined. The smaller floods do more harm to the banks than the larger ones. 'The larger ones overflow and there is less scouring than is the case with the small floods. Have seen the rivers in flood together. In ISIiS all the rivers were in flood. If there is a flood in the Omaka the Opawa would he up before the eut was made, but since thatthere would be a flood. There have been no big floods lately. 'The channel runs in a Northerly direction, and the Ouawa runs from West to blast. It would afl'cet the course of the stream lower down. The water would be driven on to the North side.

By .Mv Travers:—The Opium has been cutting into its banks and widening its bed ever since it was formed. Above Paul's bank it lonics, very dangerous. After that it is safe until below Jackson’s ford. The river is making to the North at Jackson’s cross road.

By .Mr Conolly : —The river separates into two streams near Jackson’s. There is most water in the stream on the South side.

Hebert Allan, farmer, llenwick Old Hoad, Lower Wairau district, deposed : Mas lived on section (>7 for seven years. Mis land suffers from Opawa floods. Have not observed much difference in the quantity of water in that river lately. There have been no heavy floods lately. Witness’ land has not been flooded since the formation of the channel. Has known some heavy Omaha floods. 'The channel will be an injury to me, as nearly all the flood water of the Omaha is carried through it into the Opawa. It would be better for witness if the Omaha went down its old course, as before the channel was cut. The rivers are both in flood together at times. \\ itness suffers more from the Opawa. By Mr Travers : —ln February, 1 SOS, and at other times, the Omaha has been flooded and overflowed into the Opawa, which flooded my land. The Opawa water was quite enough without it. The Omaha used to flood a good deal of land between where the channel is cut and Blenheim.

Mr Conolly said time might be shortened if his friend would consent to an alteration of the issue so as to make it—“ That the works complained of benefit a large part of the district,” instead of that they were “ necessary.” This would save calling more witnesses.

Mr Travers consented to admit in the issues that “ the works complained of were the best adapted for protecting, and would protect, if maintained, a large portion of the defendant’s district from inundation by the river Omaha,” and the language of the pleas was taken to be altered accordingly. Plaintiff admitted that tile cut, banks, and dam were constructed by the defendant and (for the purposes of the action), that they were about to re-erect the dam. This closed the plaintiff’s case, and Mr Travers said the attention of the jury would now lie narrowed as to whether the diversion of the Omaha water into the Opawa by means of the channel would have the effect which it was contended it would by the other side. He should call evidence to show that] no appreciably mischievous effect would be caused by the defendant’s works to the plaintiffs protective works. What caused the separation of the streams spoken of by Mr Paul he should show was caused by the wing dam put there by his ingenious friend, Mr Douslin. [lt subsequently appeared that this was not one of Mr Douslin’s dams but Mr Redwood’s work.] The idea was preposterous that the comparatively small quantity of water from the Omaha would affect the large body of water in a great and powerful river like the Opawa. Charles Redwood deposed that lie was acquainted with the rivers, and with the works erected by the Lower Wairau Rivers Board. Their effect had been to protect from inundation a large area of country. Has lived in the district for 17 years. A large portion of the water of the Omaha always went into the Opawa at flood times.

At the point where the diversion takes place the bed of the Oinaka is about onetwentieth of that of the Opawa. The banks of the Omaha at the spot are not more than ;;ft (iin high. The Opawa’s banks would average 5 feet. A hen there is no flood the Omaha is a mere trout brooh. The Omaha is not liable to frequent floods. There are small freshes at times, I have hnown three years to pass without a heavy flood in thr Omaha. In making roads in tin's valley the natural result is to make a course for the water. It was so with the Renwick Old Road, as witness has heard. The greater portion of water in the Opawa has for years been on the South side lor a considerable distance below the cutting. A pile ami wire dam-has been erected above Jackson’s ford. The splitting of the stream referred to by .Mr Paul witness attributes to the wing dam. The Opawa runs against Robinson’s bank. The natural banks have been subject to erosion for years. There was a small Hood in the Omaha in May last. It would have been running over the farm below unless the channel and dam had been there. The yellow water of the Omaha did not get halfway across the Opawa. Witness measured the overflow of the Omaha after a heavy Hood in March last. It went into the Opawa without the aid of any work to the extent of about twothirds. The increase of the Opawa water by tin' addition of the Omaha would make no appreciable diH’erenee. Floods in the Omaha do not last long. The Taylor and Fairhall rivers rise in South-east rains, as do all the rivers in the South part of the valley. The Opawa is a branch of the Wairau and now carries more water. The shingle in the Omaha is much smaller than that of the Opawa, and is of a reddish yellow color. There is no indication of anysplit of it in the Opawa. It does not bring down much shingle. By Mr Oonolly I remember a previous action brought against the Wairau Board by Spring Creek. The former Board desired to make the Wairau take all the Opawa water except in times of high Hood 1 did not think it desirable to decrease the quantity of water in the Wairau. The Oinaka only did harm to the adjacent lands in flood time. I never saw the two rivers in flood together. I do not agree with Mr Donslin’s evidence on that point. Before it was diverted the Omaha did a great deal of damage. It is a narrow stream for the most part, and with high banks. The Opawa at Blenheim does not carry in time of floods all the Opawa water. It overflows at WTatt’s, below the railway bridge. It is contemplated to make a canal from there to the big river. It was a work commenced some years ago but abandoned for want of funds. The works of the Wairau Board will do no injury to Spring Creek. The bed of the Omaha is very small. The addition of the water from it to the Opawa will not increase the volume of the water appreciably, or add to its velocity. His 1 lonor said lie should have thought there was some way of settling the matter other than by a jury, for whatever way it was decided by them the result would be unsatisfactory.

The witness said ho had himself tried all he could to have the two Hoards united so as to act together, and he got Mr Seymour, M.H.R., to get the Rivers Act amended with that object. He was most desirous for the two Hoards to work in unison, but .so far he had not been able to elFeet that object. S. L. Muller, J.P., i&c., said he had for years made observations about the rivers, and made notes of them, and kept a general register of the weather. The Omaka and the rivers on the .South side the valley rise with South-easterly rains. The Opawa, years ago, was a mere soakage from tne Wairau, and where the Grove Road bridge stood the Opawa was a mere brook in 1557, and a person could easily walk over it in ordinary watertight boots. It was then narrow as well as shallow. North-westerly rains produce floods in tin; Wairau. It has a long course and rises at a considerable altitude amongst snow-capped mountains ; and when the snow melts it swells the river. In March there was a flood in the Omaka but none since. Witness bas never seen the rivers in flood together. [Witness referred to his diary.] The Omaka was Hooded seven times from ISfiS to 1880. Floods in that river are infrequent compared to those in the Opawa.

Adam Jackson stated that lie had lived 2d years in the district, and had property between the Omaha and Opawa rivers, about 1j- miles from the cutting. In flood times the water of the Omaha, to the extent of three-fourths, went into the Opawa before the channel was cut. Floods were not frequent in the Omaha. As long a period as two or three years has passed without a flood in the Omaha. The river makes a deposit of silt. The Opawa bounds my property and lias done much injury to it. I don’t fear further danger from the fact of the Omaha water being added to it. The two rivers are not in flood together at any one time. The Omaha goes down very rapidly. The river is making to the South bank at my place, and we have bad to put out a groin lately. If both rivers were in high flood together at the same time, we should have to leave the country.

By Mr Travers -The channel is partly on my land. When it was first proposed f did not oppose it that I remember. I knew that it would lie a public benefit. f don’t know that I am directly benefltted by it. The wire dam was put in by the Wairau Board as a protection to my land, but not as compensation for not opposing the Board’s other works.

Henry Dodson stated that be was formerly a member of the Wairau Rivers Board, and knows the rivers. Has been in the district 22 years. Floods in the Omaha and rivers of that class rise in South-west winds, and the Wairau from Westerly weather. Floods are infrequent in the Omaha as compared witli the Opawa. AlSouthcrly rain is usually cold and the North-west warm, and the latter melts the snow on the hills. Never saw the two rivers in flood together, and do not believe anybody else ever did. The Omaha is merely a flood channel. The Opawa is a large river, with soft banks. The first object is to prevent their being cut away by the action of the water. I have no fear of my property being injured by the diversion iff the Omaha into the Opawa. 1 cannot think it would do any injury to Robinson’s bank or property near it. I have property in the Spring Creek district just below Robinson’s. By Mr Conolly : —A good deal of water in flood times goes from theOmaka into the Opawa, and always did. Ido not for a moment believe that the extra water taken into the Opawa by the channel will have any appreciable effect. Cyrus Coulter, stated that lie had lived here many years and knew the channel. Before it was} made the greater portion of the Omaka water in flood time went into the Opawa. The watershed of the Omaka is infinitesimal compared with that of the Wairau. Witness does not consider any additional erosion will be caused to the Opawa river banks by the diversion. Thomas Redwood said he had suffered a great deal by the erosion of the river banks, but he apprehended less damage in future. He did not think the diversion of the Omaka into the Opawa would have any appreciable effect.

Alfred Dobson, civil engineer, &c... ‘stated that lie knew the cut in question,, and had taken levels. The bed of theOmaka at the head of the cutting is 10 ft. S in. The length of the channel is 29 chains. The fall is about 1 in 180. The average fall of X.X. rivers varies vei-y much between the high and low country. The fall in the Omaka is .'!(! ft. in a mite and half. 'The fall of the Opawa from the channel to Jacksons is about the seme. Where the channel was made there was formerly an overflow channel. Lhe channel is not so made as to enter the Opawa at right angles to it, W ltuess lias not observed any shingle bed formed at or near the mouth of the channel, and can sec no difference in the shingle of the Opawa. Floods in the Omaka are not frequent; they are produced by South-east gales. When there is a flood in the Omaka, Taylor, and Fairhall it soon subsides. In reply to Mr (Wily.witness said clear water made greater erosions than muddy, and that was one reason why small floods were more injurious than large ones. Another was that these banks drive the actual channel further out. Wituess does not think the addition of the Opawa watei will make any appreciable difference. This closed the evidence.

Mr Travers addressed the Court, repeating that the main question for the jury was whether the works erected by the defendant's Hoard would injure the plaintiff Hoard’s protective works, and contending that the weight of the evidence went to show that they would not. It was not denied that the Opawa was doing mischief, and the plaintiff endeavored to make out that the work of destruction was increased by the diversion of the Omaka into the Opawa, but it had been proved on reliable evidence that it made no appreciable difference to the Opawa. It was admitted that the works of the defendant Board were the best and most suitable to the purpose for which they were intended and this admismission was a great compliment to the Hoard, and to Mr Redwood whose skill had devised the work.

Mr Conolly said he labored under a difficulty in having to address a jury after his friend Mr Travers, who in his speeches always introduced amusing anecdotes, which, although they had nothin" to do with the ease, served to put the jury in good humor, so that they hardly liked to find a verdict against a gentleman to whom they owed so much. The Omaka, like many other New Zealand rivers, was at times a mere brook, and at other times a roaring torrent, and if it did harm before, the turning it into this other river wouldylo more. All this trouble taken to turn it into a new channel proved that it must been dangerous where it was. Could it make it less so by turning it somewhere else ? He urged that the evidence showed that the pouring of the Omaka water into the Opawa did increase the volume, velocity, and erosive powers of the latter, and the angle at which the channel entered into the Opawa had the effect of forcing the stream to the northern bank some distance below. He asked the jury to put aside Mr C. Redwood's evidence, which was manifestly inaccurate. This action was not brought to recover money, but to put a stop to works which were injurious to the Spring Creek Hoard’s protective works. His Honor summed up, pointing out that tlie plaintiff’s object was to prevent defendant from maintaining the cutting and dam, and it was for the jury to say whether the diversion of the Omaka would have an injurious effect on the Spring Creek Hoard’s protective works. The evidence was conflicting, and the jury would have to say on which side they believed the balance rested. He thought it was a matter of regret that the two Hoards were not united into one body, lmt the jury, ns it was, must endeavor to do justice between them.

The jury retired at twenty minutes past ei"lit o'clock.

At twenty minutes past eleven o’clock the jury returned into Court and stated through the Foreman that they could not agree. The Court said a verdict of three-fourths could be taken.

The Foreman said there did not appear any prospect of three-fourths agreeing. Mr Travers said lie would consent to the jury being discharged, as if they had been in deliberation 12 hours.

The jury were discharged accordingly, the Court observing that it was unfortunate a verdict had not been arrived at, as it involved the parties in large expenses. His Honor, addressing Mr Conolly, said lie wished to say a word in reference to wliat the Foreman of the Crand Jury bad stated that this was an inconvenient time for holding the session of the Supreme Court at Blenheim. He did not see how it could lie altered, unless a change could he made in the time of holding the sitting at Wanganui, so as to have a sitting here in October, and he would see if this could be done.

Mr Conolly said lie was informed that the Foreman of the Crand Jury had taken upon himself to say more than he was authorised by the rest to say. It was not strictly a “presentment,” as it was not in writing and signed. He (Mr Conolly) did not represent any one in the matter.

His Honor said lie was not treating it as a “presentment.” He would make inquiries, and see wliat could be done. It did not rest witli himself to alter the time of sitting.

The Court then rose, His Honor stating that he would take the compensation cases at half-past nine o’clock the next morning.