SUPREME COURT.

Mount Ida Chronicle, Volume VI, Issue 333, 23 July 1875, Page 3

SUPREME COURT.

' _ ;:';' ~civiL'siTTiNd-3;'' ; • • <•' Monday, July 19th. (Beforo his ITonor Mr. Justice Johnston and ['.'■■'■■J • • : '■".' =a';Special Jury.) '.., . TT\-;:h- ;'!:TIIVEE.POLIiTJTION. Glqssford v. Held and Others. "Wo are indebted, t0... the ' Otago Guardian' for the following very excellently condensed report. The result of the case will be found ;in our telegraphic column:—' J This was an action to recover £IOOO damages, caused by damage to plain-tifTs-Jand, through defendants having polluted Thomson's Creek. The plaintiff also sought to obtain a writ of injunction to restrain defendants from continuing to pollute the creek.! Mr. Macassey,- with him Mr.; B. 0, Haggitt, ;for ; plaintiff; Mr. James Smith, with him'Mr.'Stout, for| defendants. .: : '.". - ;:'.':..:

It appeared from, the pleadings that the plaintiff is Thomas Glassford Gordon, Glassford, runhblder, and the owner of certain : freehold- lan d in \ Otago. The defendants are Stephen Reid,,John Reid, r and party of miners, working* r on"' Tinkers diggings; iii "the neighborhood of'Manuher rikia,.; Since, the 2pth May, j 18677 plaintiff' has' been possessed' ,of .92 acres of land, pre-emptive right on run No. 223,.0wned byplamtiflWA! natural stream, called. Thomson's I Creek, flows through ancl.plaintiff is to_ have the' use. of the said" stream, without being polluted'dr : 'disturbed. Defendants wrongfully fmlriited and disturbed the stream^by-throwing into,. it large quantities of tailings, &c, whereby the water was. rendered unfit for cattle to drink;' ! and also for domestic purposes; eons'equ'eritly,'plain-' tiff's land, in value; had been lessened,; to plaintiff's loss and damage.; ; The 1 creek, as polluted, flows .through! other ldnd'of the plaintiff: '-Since2othMay-, 18G7j plaintiff has been! entitled to have the water flowing uninterruptedly..; through the land in its natural and ordinary course; yettfdefencMhts,! well . knowing ,this y .and. being possessed of 'certain gold-mines, (lid, on theJ22nc( ; December, 1873, and smce,--knowingly, •wrongfully, andlmjuriouslyTc&sti from, their claim into the said stream llarge' quantities of tailings, &c, wheretiy the bed or channel -of the stream has become obstructed and raised, and the water .flows/on- plaintiff's consequently, has become unproductive. Plaintiff ; requested defendants,' but without avail, to refrain from con-, tinuing to pollute the stream. \ ~ „ Defendants pleaded a general denial! of air the material allegations in plaintiff's declaration; that before the icdm-' mission of the acts above-mentioned, her Majesty owned certain lands -adjacent to Thomson's Creek, and had authorised defendants to mine there for gold,to use streams for theipurnqse of washing away tailings', &c., and tolcort-i Btruct tail races for carrying away the said earth t0,.-streams .flowing into Thomson's Creek. In pursuance-of that authority they did allow the earth, &c, so to flow, and without doing which mining operations; to be.carried' on. ;, The plaintiff,, before he became possessed of hisland, knew'of the facts above stated, and. that he iibok his land subject to the said rights and privileges possessed by defendants. f Itvvas also stated that defendants had intimated that it would be urged in mitigation of damages that the alleged wrongful act's 1 had resulted in no actual wrong j to plaintiff/ inasmuch as the creek had .been polluted by other miners ; that what the defendants; had done had been-done well knowingjthaV they had the right to do,, and jthat nothing had - been * dbrie ' yexatiously. That the alleged raising of the .bed of the stream had been,' in ir 'a'great'iiiea f sure, if not Wholly,' caused 1 by plaintiff making a l -cut -whereby He-'divejrted Thomson's Creek, and caused'it to 1 overflow. ! ™ J '

■>}• • by -hisreplication, further stated that,, prior Jo the alleged acts of defendants, 4;ha'waters of the stream, were confined within its tanks, ,and never overflowed; except, perhaps, in flood time,. ~ The ,-.stream ; ,bad* how spread beyond its banks over part { df • plaintiff's property, and instead of: the stream being lift, or 15ft. wide, running between well-defined banks, ifrhad now no defined channel, was filled sludge and rubbish, and was filled with sludge and rubbish, and was 40ft! or 50ft..wide; and plaintiff's homestead, woolshed, and other buildings; erected at a considerable cost, were liable Jo damage in., case of (flopd. Indeed,-it was considered to be within the bounds of, possibility that, the whole of itheplaintiff's, pre-emptive right might, in time, be covered with water. Mr. Haggitt further explained that since this action had been commenced, a case had been heard- in' the Court of Appeal in this Colony; in which similar ques-' tions had been raised,, and the decision thereon, as plaintiff contended, waslen--tirely ih; .his, favor. did not desire vindictive,, but substantial dama- ; ges ; .at any rate, something more than nominal damages damages sufEcilent. to indicate the' jury's'¥pfrecia"tib'ii of plaintiff's rights, and of those of any' other freeholder, as against persons.iengagedjas defendants were. Sd,fari as was known, defendants were the only persons fouling, this stream ; at any rate, if there were,others, the damage was so inappreciable as not to be worth notice, ; ;. ...,.„....-,,/; '' J.JSI Handyside, runholder,i and John Elliott, manager for plaintiff, gave evidence for him.; The latter stated that of a. wall 6ft. high, which had; been built on plaintiff's property, only about 2ffc. was now visible, cousequent on the throwing of rubbish into the creek. Tho pre-emptive right property was worth between £3OOO and £4OOO, but

in case of .flood ib might be worth.nothing to-morrow. Defendants' party \v,as the on]y party that sent failings into Thomson's Creek—the other parties sent their tailings in another direction, to a 'creek :: called Tinker's 7 Creek. On, baing : cross-examined, Elliott said he" did not recollect any material difference in the creek'until the year 1870. He recollected damage being done to plaintiff's property—the buildings—prior to 1870. ;

Another witness examined on behalf of the" plaintiff was Hugh Handyside, who said/he considered, by the tailings and other property having" been- deposited on the property, it was. depre-. ciateci in'value £3OOO. .-.',..

• /'The plaintiff's case having been conieluded,; ..-.,, ■.'■•- Mr. Stout submitted, on behalf of defendants, that plaintiff,-having admitted defendants' pleas, "they must be taken as. sufficiently good. If he ob-. -jected he. should. ,haye -previously demurred to the pleas, or move hereafter for a verdict nbn obstante veredicto. He also- pointed out'that defendants" relied, in their pleas, .as Well: as notice of-imitig'ation of -damages,' that -.they had not-been acting-a \ ordinary trespassers—not.Hke,men who had no colour of righ't* to 'do' what was.com_plain,edr qf.tr Thgyj; obtained a license;: 'to"construct a tail-race, and dueinotice i was given tp -all,: so''that plainlp:could, haye, ...protested . against the! 4 license being issued. Instead of howeyeryfhe took no;;ac"ticliuniaUthe'action now before the instituted. The learned counsel pointed out!, also, that this case was important in that it was,the first;in which a freeholder had taken such proceedings- in. respect to mining operations. Therefore the question now was, whether minerswere to be allowed to continue mining; ,in the "Province Qr'ttot;.' If this action. !;was gjveh>>'against 1 ; defendants -the, operations;.^f: ; pother would be stopped,', 'because theyi also '; wereer; regulationsiifiljhe Vroverment. -No doubt the Legislature. i. cpnsidjere«te.that it~,wouM/-. be better to have mining, even with its pollution/; l?thairthat, tfoeife should- be :> no mining at all. _ -Moreover, defendants! only discharged 1 theif , 'tailiri§;l b oil''' the] spot pointed out-by-'the regulations fivhenf . -fapYj m ,a4.e.^.beir.. But if ; We jury considered tjiat th.ejegulations. ' did'' ndt -give '_ •defendants'"th e power-. which' they 'believed" £&% possessed, then it could not he said that defend, .ants. wer,e, i responsibleifo.rr-airthe I tailings', and only nominal damages should : >b r e { given.- 1 '-! : : J ■" - * r * : ',• V ";''•' : '-" *" ? j .run.