Supreme Court.

Manawatu Standard, Volume XL, Issue 7923, 4 October 1904, Page 5

Supreme Court.

>-. PALITERSTGN"—TUESDAY.

(Before Mr Justice Cooper.)

CIVIL BUSINESS,

Frederick X. Ryder (Mr C. B. Morrison) v. Catherine and Archibald Hall (Dr. Findlay, with him Mr Atkinson), claim £501 damages for loss occasioned by cutting of drain and loss of water rights and an injunction to restore such water to its original course.

The following jury was empannellcd : —E. Edwards (foreman), F. Oakley, F. G. Tydernan, F. Perry, Q-W. BavenhilJ, P. F. O'Connor, T. E. Scales, A. Tingey, S. Abrahams, R. Horn, "W. Rowland's, and R. V. Lloyd. :

The statement of claim set out that the plaintiff was the proprietor of 40 acres of land at Otaki known as Tuahiwi No. 1, and, also, another 51 acres known as Tuahiwi No. 2; that the defendants at the time of the cutting of certain drains by the defendants, the cause of action, were possessed of land adjoining the property of the plaintiff and known as sections 3, 4, o, 6, and 7, Ngakarori 3b. At the time of the acquisition of the land by.the plaintiff, and at the time" of the acquisition of the land by the.defendants two natural watercourses ran through the defendants' 'land on to the plaintiffs property and supplied it with water; that during the months of June, July, and August, 1901, the defendants made a drain through the watercourses and intercepted the whole of the water which had run through without interruption and by means of these drains diverted the whole of the water on to and through other lands of the defendants. By such acts it was claimed that the defendants had deprived the plaintiff of the rights to the watercourses and had reduced the value of the plaintiffs land, and have otherwise caused plaintiff loss and damage. Plaintiff claimed to recover in respect of special damages, £250, and general damages, £251, and also claimed that the defendants be com-, pelled, by injunction, to restore to the land of the plaintiff the water which would naturally run along such water courses. An amended statement of claim set out that the water flowed from springs, indicated on plans produced in court, and that the plaintiff had the same right to the water of the springs, whether the 'water was confined to the drains or water courses or not, and that the defendants had obstructed the plaintiffs right to the said watercourses. The statement of defences set. out that .the. plaintiff'was. not at the time alleged in the statement of claim, or at any other time, possessed of the leasehold lands.. It was also denied that any natural .watercourses ran from the defendant's land to the plaintiffs or supplied any of his land with water. It was admitted a drain was made by the defendant, Catherine Hall, but denied the existence of the drains mentioned in the statement of claim and indicated on the plans produced in Court. It was alleged certain of ihe drains were made by the Maoris, and it was admitted that durincr the months of June, July, and August, 1901, these same drains were cleaned and deepened by the defendants. It was denied "that the defendants'interrupted or diverted any water which had hitherto ran on to the plaintiffs land. It was alleged that if there were at any time such water courses they had, prior to the acquisition of.the property, by either the plaintiff or defendants, become converted by the owners of the land into part of a system of surface drainage and the plaintiff acquiesced in the same. The lands of the plaintiff and defendant were swamp lands, and the owners .and occupiers sought to drain them ;and;. further,, that over certain drains they had acquired a-pre-emptive right, under the statute 2 and 3, Wil-: lianV IV., and over all; water in such watercourses by reason ■of drains made by W. H. Simcox over twenty years before the action was brought. It was claimed that defendants made other drains on the land and plaintiff never objected to them, and, lastly, that if plaintiff had any good claim to relief against' the defendants he had lost the same through acquiescence, laches and delay. In opening the case for the plaintiff, Mr Morrison traversed the facts of the case, the evidence to be adduced in support and the allegations contained in the statements of claim and defence.

The first witness called was Charles' Brown, custodian of the Native Land Court, who produced maps of the district, including the piece of land affected by the.action. Witness was examined as to the nature of the land as shown on maps compiled-as far back as 1872-8. He also detailed the common practice of surveyors in delineating on Inaps land and streams not actually traversed. Evelyn W. Seaton, surveyor and civil engineer, Wellington, produced plans of Mr Ryder's property. " After the evidence of Mr Seaton, Dr Findlay. opened on behalf of the de-i fence, the = plaintiff's case being interrupted for the purpose.- ' This course was followedso that both sides of the argument might be before the jury before they visit the land-to-morrow.

(Left sitting)