SUPREME COURT.
CRIMINAL SITTINGS. Wednesday, Jdly 14. (Before his Honor the Chief Justice.) The Court sat at 10 a.m. SENTENCE. James Cameron, convicted the previous day of rape, was called up for judgment. Prisoner had nothing to say why sentence should not be passed upon him. His Honor said: James Cameron, I find from information received from the gaoler that yon have been twice in gaol previously. You were sentenced to nine months’ imprisonment on the Ist March, 1869, for having obtained goods by means of false pretences ; and you were, on the sth September, 1870, sentenced to three years' penal servitude, for larceny. On this occasion you have been convicted by the jury, after an able defence by.your counsel, the jury deliberating scarcely any time—the evidence being so satisfactory and so clear as to leave no doubt on their minds of your guilt. It is clear that offences such as yours the Legislature intended should he visited by severe punishment. You have treated this girl badly, most brutally, and the enactments of the Legislature declare that you should be treated with rigor. The evidence of the girl was that you said if she complained to your wife she would merely laugh at her; and as the evidence came out I have reason to believe that if your wife did not actually laugh at the story of the girl, at any rate she treated it with contempt, and that she endeavored to keep the girl from complaining to other persons. Therefore, seeing that you have already been twice imprisoned, and viewing the conduct of your -wife, I am forced to disregard the recommendation to mercy which the jury have made. The sentence of the Court is that you shall be kept in penal servitude for a period of ten years, and that you shall be twice privately whipped: on each occasion the strokes shall he twenty-five, the instrument to be used in such punishment being that known as the cat. Prisoner was then removed.
CIVIL SITTINGS. (Before His Honor tire Chief Justice and Juries of twelve.) GEORGE v. mi. This was an action brought by Thomas George against Thomas Wray Hall, to recover the sum of £3OO, for damages done to plaintiffs property by undue excavation by defendant of land adjoining plaintiffs property. Mr. Travers (Mr. OUivier, attorney), appeared for plaintiff; Mr. Allan for defendant. Jury—Messrs. W. Wallace (foreman), J. Storey, W. H. Knegge, Wm. Isaacs, Joseph Hall, D. Robertson, Thos. Bowles, B. Somerville, W. Petford, W. Eades, G. Wallace, and —Nain.
Sir. Travers opened the pleadings and read the declaration. He then proceeded to narrate the circumstance under which the plaintiff sued. He was the owner of a piece of ground, part of section 516 on the plan of the city. The ground was situate close to a lane leading from Sydney-street to the Tinakori-road, and formed the slope of a hill. The defendant occupied a piece of ground between plaintiffs land and the lane, and defendant had excavated his land right up to plaintiff’s boundary, leaving a precipice 12ft. or 14ft. deep immediately on the boundary. The result was that this excavation had caused a large quantity of plaintiff’s land to slip down because it was impossible for it to remain in its natural condition. Much injury had been done, and in consequence plaintiff claimed £3OO for the damages. w To the declaration defendant had entered a plea denying the material allegations of the plaintiff, and the parties joined issue. Thomas George, the plaintiff, proved that ho owned and occupied a piece of laud, the back of which abuts on the Tinakori-road. It was 100 ft. by 36ft. A piece of land intervened between plaintiff’s property and a lane which runs from Sydney-street to the Tinakoriroad. His land is about 30ft. from the lane, and he reached his property by means of steps through a strip of land which he had purchased. The land belonging to defendant, and which intervened between the lane and plaintiffs land, formed the spur of a hill. The land laneward of his boundary had been excavated, leaving on his boundary a nearly perpendicular face of 12 or 14ft. The excavation had been finished about nine or twelve mouths ago. Saw defendant working at the excavation on several occasions. Spoke to him on the subject. Defendant had asked him to remove a gum tree growing on plaintiff's laud on the boundary. Plaintiff declined to do this, because it would let hia bank down. Defendant replied he would let all the bank down. After that, he said he would not do plaintiff’s place any injury, but still went on excavating notwithstanding remonstrances. The land had fallen forward for a length of 40ft. in consequence, destroying plaintiff s land on the surface for 8 or 10ft. Excavation had been done for a length of 60ft. along the boundary. That had injured the property to the extent of £3OO. Cross-examined : Before I built the house which stands on the land, I cut off a portion of a slope on the south side to make a level for the house. Wheeled the stuff away, and erected a wooden breastwork on Mr. Hall's side, about 3ft. high ; artificial earth was put there also; part of this breastwork and artificial earth has gone. To his Honor ; There was no boundary fence or hedge. Cross-examination continued : Mr. Hall has excavated right up to the boundary, so close that he has let part of ray land down. The natural earth has gone to an extent of 6ft. or Bft. along the boundary, and 3ft. or 4ft. in depth. Ke-examined : The made-up earth was not 3ft. deep all along, but differed in places. From the breastwork the artificial earth ran in 4ft. or sft., the depth inwards being 3ft. at the breastwork up to nothing. The breastwork did not go right out to the boundary. The terrace had been made eight or nine years, and shrubs were growing on it. On the boundary outside the breastwork gum trees and small poplars are growing. Edward V. Briscoe, provincial surveyor, proved that he is now making a survey of the city for the Provincial Government. Had surveyed the land, the subject of this action ; and also Hall’s land; put down pegs; had lately examined the land. Booking from the south-eastern peg to the south-western peg, or place where the peg ought to be, the excavation does not extend to the south. Defendant had not excavated up to his boundary, but much of plaintiff’s land had fallen in. Where the slip had taken place, the soil appeared to
be natural, and not made. The face of the excavation presented the appearance of natural soil. At the slope, the soil in its natural condition could not stand.
To His Honor : I judged the slope to be a j to 1, but did not measure it. Cross-examined : Defendant is entitled to 28ft., and has excavated to 27ft. If there had been any artificial land made, it might have had the effect of hastening the fall of the lower ground—that is, the natural ground. Re-examined : With such a slope natural earth could not stand, Nicholas Marchant, city surveyor, proved that he had recently examined plaintiff’s ground. Along the boundary of the land there is a cutting. The slope is about 1-j in 10. Had observed the soil, and did not consider the slope sufficient to support the bank. The nature of the ground is such that it could not stand at a less slope than lin 1. The present slope is 1 in 7. Had noticed some slips. Some of them extending 8 or 10ft. into the land. The ground is completely gone, and gradually reaching a natural batter, hut taking into consideration the nature of the ground, more must go. The site of the house had evidently been levelled ; that would have increased the weight at the edge, but there had been a breastwork constructed to support it. The slips had been occasioned by the absence of the proper slope, and that alone. Cross-examined : If artificial earth had been placed on the boundary with a deficient breastwork, that would have accelerated the fall of the earth. The breastwork was not an exceedingly good one ; it was 3ft. in from the boundary. To his Honor : About four or five years ago, when I made an examination, I said slips would take place in consequence of the excavation. I think the earth would have slipped without the terrace, but the making of the terrace undoubtedly accelerated the fall; it would have fallen within three or four winters, but it would mainly depend upon whether shelter had been afforded or not. Ror instance, the house has protected a part of the embankment, and that part has stood. The slip which has occurred would have occurred in consequence of the want of proper support, and quite irrespective of the making of the terrace; wherever the breastwork remains the soil is intact, but that is the part where the house to a certain extent protects it from rain; there are trees here also. In some instances trees have the effect of weakening the tenacity of the soil. Where the slip has taken place the bank is open to the full force of the north wind.
George Carter, son-in-law of plaintiff, and a carpenter, of the Tinakori-road, proved having sold the land in question to plaintiff. The excavation extends from the lane 27ft., and on the other end a few inches more. The bank is very steep. Had spoken' to defendant on the subject several times, and cautioned him against letting the breastwork down by excavating so far. The breastwork contained artificial soil, and this has gone down. The soil in this locality takes a considerable batter, about Itol, in order that it may stand. He (witness) had excavated in another place, and the earth required 1 in 1, and there had been no weight on top beyond that of the natural ground. In this instance the wall at the bottom had been lift, and ran up to nothing at 10ft. high, yet it would not stand. Cross-examined: I sold plaintiff the land for £25, ten or ago. The money was paid ten years ago, but the conveyance was not executed till four months ago. Mr. Travers objected to this examination. He contended that if his learned friend had intended to contest the title he should have done so by entering a plea to that effect. He had not done so, and he (Mr. Travers) believed he could not raise the point now. His Honor said the omission of a plea was an admission that there was sufficient title to maintain the action, but the question might be raised in order to ascertain what interest plaintiff really had in the land. Mr. Travers admitted that; but the question could not be raised as a bar to the action, although evidence might be called in mitigation of damages. He quoted to show that it had been held that a plea of not guilty was merely a denial of the committal of trespass, and under it, objection to the title could not be raised. Such a defence as invalidity of title should be pleaded specially. Possession only was in issue. His learned friend had already endeavored to extract evidence in mitigation of damages, such as contributory negligence, and though he (Mr. Travers) might have objected to that course, he did not. He submitted his learned friend could only go into evidence on possession of the property. Mi - . Allan thought the case quoted by Mr. Travers did not apply. The declaration, was not a declaration of trespass on land, but of a deprivation of natural support to land, therefore, the question of interest was important. He had a right to inquire what was the nature of the possession. His Honor ruled against Mr. Travers. The question at issue was the amount of damage sustained ; and the amount of damage plaintiff sustained must depend upon the nature of his possession. He did not think the case came within the eightieth rule, and decided that the questions might be put, without notice, in mitigation of damages.
Mr. Travers drew his Honor’s attention to “ May on Damages,” p. 295.
His Honor said he would make a note of it. After answering a few more unimportant questions, the witness stood down. The Court then adjourned for lunch. His Honor, on the Court re-assembling, said he had been fortified in his ruling by a perusal of “ May on Damages,” pp. 330.331, and quoted several passages proving that plaintiff must show what the interest he had in the property was, and the duration of the interest; the justice of this was obvious. Mr. Travers said without a doubt that was so. The only question that had appeared material to him, and what he had proposed to submit was, that possession was prima facie evidence of ownership in fee simple, and he (Mr. Travers) might have to contend the same in another case, and it might have to go before the Court of Appeal. He thought, without doubt possession was evidence of fee simple, and the question was whether if the learned counsel for the defence intended to contest the presumption in law he should have done so by so pleading as to put the character of the possession in issue. There could be no doubt that the point was involved in a little difficulty. He felt his duty to bring the point forward, but was not prepared to say that the plaintiff should not state the actual character of his possession. He believed, however, that if defendant wished to take exception to plaintiff's title he could do so only by a special plea. John Howard Wallace, valuator, gave evidence to the effect that in consequence of the excavations plaintiff s land had deteriorated in value to the extent of £7O or £BO. The laud was of the value of £4 or £5 per foot. It was a very desirable allotment. William Watt, a gardener, living on the Tinakori-road, proved that about two years ago he was employed by defendant in excavating a bank. It was not steep ; no man could walk up it; had to trim it from the top ; was paid for the work by defendant. Edward Roberts proved that he had also been engaged in the work of excavating, and had been paid by defendant. This concluded plaintiffs case.
Sir. Allan moved for a 'nonsuit, on the •ground that the evidence did not support the allegations contained in the declaration, in this respect at any rate : the declaration set forth that the defendant had dug out and removed soil “ adjacent” to the land of plaintiff, whereas that had not been proved. The adjacent land was that absolutely joining plaintiff’s land, and it had not been shown by evidence that defendant had dug up to the boundary line. Jeffrey v. Williams, 5 Ex., 20 L.J., was a case in point, and it was in that instance shown that “ adjacent ” and “near to " were quite different terms. It had not been shown that defendant had dug up and removed the soil adjacent to plaintiff's land, inasmuch as it had not been shown that he had excavated right up to the boundary line. His Honor remarked that “adjacent to” was the usual form of allegation. Mr. Allan ; Yes ; but then the evidence must show that the land is “adjacent ” to—must show that excavations are carried right
up to the boundary. Of course it is the usual declaration, but in this case the allegation has not been proved. Therefore, I say I am entitled to a nonsuit because the evidence does not support the declaration.. His Honor : Mr. Travers might amend the declaration, X should be inclined to allow that.
Mr. Allan : Well, your Honor, that is my objection. His Honor did not think anything could come of the objection. _ . Mr. Allan urged his point. Plaintiff in his declaration had said that defendant had injured the land by digging up “ adjacent land. Ihe •word u adjacent,” as laid down in the case he had quoted, would be found to mean laud adjoining, and that being so, itpwas the duty |of the plaintiif to prove that the land joining his had been dug up. He had not shown this, because he had not shown that the digging had been earned up to the boundary line. His Honor : You say the words “ near to ’ will do ? Mr. Allan ; Yes. (A laugh.) Oh, no your Honor, we don’t say what will do, but rather what will not do. His Honor : If the words “ near to” will do, Mr. Travers may have the declaration amended if he likes, by having those words inserted., However, I don’t think there is any doubt on the subject. Mr. Travers did not wish for any amendment. “ Adjacent” meant “ near to." His Honor : Very well. I am against you Mr. -Ulan on this point. Mr. Allan then opened the case for the defence, and in a short address indicated the nature of the evidence he should bring forward. He then called
Thomas Wray Hall, the elder, and defendant in the action, who said: I am a bookbinder, living in Sydney-street. I bought my land on 13th June, 1871. When I first bought the land, George’s land had the appearance of a hill a lot of which had been cut away to make it level. There was a breastwork; and with reference to George’s house and the breastwork the laud was level. The breastwork was a very temporary affair, and appealed to be dropping. There were two gum trees on the part of the land nearest the Karori-road, and hanging over my land. One was inside the breastwork, and the other outside. He refused several times to cut them down, and the consequence was, the trees, which were subject to the force of the southeast winds, affected the strength of the ground. I have a depth of 30ft. one way, and 28ft. the other way. I had to excavate the land for building purposes. At the 30ft. I excavated towards George’s boundary to about 244 ft. at the'bottom, and about 271 ft. to 28ft. at top. At the 2Sft. boundary I went to about 244 ft. at tbe bottom, and at the top 26ft., that is 18 inches hatter in this latter case, and Sift, in the other. I first noticed the land slipping towards the 28ft. side about eight or nine months after we had completed the excavation. The breastwork then gave way at the 2Sft. end. None of my land had at that time given way. None of the face had given way till the breastwork gave way. When the breastwork trave way it drew some of my land away with it. The first fall was about 10ft. in length. The giving way of the loose breastwork and the swaying of the blue gums was the occasion of the bank giving way. Some ,of the breastwork still remains, but I think it is in solid earth, and that is the reason more of the land has not gone there. Formerly there was artificial earth all along the boundary. At the 30fk end there was another slip ; that is at the eastern end and is part of another slip on other land connected with mine. That slip was produced by the blue gum trees swaying to-and-fro. My land had not gone in tins place before the slip in the adjoining. land came down and took my laud with it. I was very particular about leaving a proper batter, because as soon as I began to dig, George’s people said I had no right to dig there, or in fact to have bought the land at all. I never called him “ a old fool.”
Cross-examined : Mr. George never told me I was taking away the support to his land. Did you never get a letter ?—No. Not from my learned friend Mr. Allan ? No.
Air. Allan : I may say I did send a letter ; but afterwards I thought so badly of the case, that Mr. George went over to my friend. (A laugh.) Mr. Travers : Oh !
Mr. Allan : So you had better say nothing about that. Ithonght the case so bad I would have nothing to do with it. (A laugh.)
Cross-examination continued ; Since my first excavation I have not shaved any more down except at the 28ft. end, where I wished to make room for a shed ; at that end the bank is 2ft. horizontal, so as to make the hatter. The slip had taken place before I took the shave off, and since then not a shovelful has come down. I did not see any slip take place, but judging from the appearance after the slip—the accumulation of the soil on my ground—-I believe it was owing to the breastwork giving way. Mr. Carter did not complain of my making so steep a bank-Rc-examined : I am perfectly clear that the slip did not take place owing to my land first giving way. It was the falling breastwork that caused it.
To his Honor : If the woodwork had not given way the terrace would not have come down, and the face of the bank would not have given way. - William Manley, civil engineer and land surveyor, deposed ; X have examined the land of the plaintiff and defendant. The front of Air. George’s house, towards Hall’s, appears to me forced ground. I saw some remains of a very inferior , breastwork. I believe it -would not be strong enough to keep up the amount of earth put behind it. The earth at the back of the breastwork now standing is made-up ground. Mr. Hall pointed out to me where he had dug, and the batter he had left. I consider the batter quite sufficient. Hia Honor ; You made yourself acquainted with the nature of the soil, aud consider the batter sufficient?—Yes.
Cross-examination continued : Supposing the breastwork had been properly fixed and properly fastened it would not have given way, and if the breastwork had not given way the soil on Mr. Hall’s ground would not have given way. To His Honor: The slope of itself would not have given way. Examination continued : The land has slipped 13ft. horizontal. Cross-examined : I laid off the boundary of Mr. Hall’s land. The vertical height of the face is lift, the batter 3 - C6, that is, about 3ft. Bin. lam speaking of the western end. At the other end the batter is 1 to 1. Mr. Travers : 1 to 1 ? Witness : Yes, a little flatter. Did you walk up it ?—No. Could you walk up it ?—lt would be rather a doughty job. Not a difficult job ?—No. Not if you had Professor Sylvester’s appliances I —l should not need them much.
Witness ; I am speaking of the slip. Mr. Travers ; That makes all the difference. I am referring to the batter of the excavation. What is the batter there ?
Witness : About J to 1. Cross-examination continued; The formation is rock and loam; behind the house it is rock to -within 18in. of the upper surface, and above that is artificial stuff. At the spot at which the large slip has taken place there was a rock bottom, but the rock does not seem to go all along; there was an outcrop of rock; above the rock the formation was of a friable nature.
In such a formation do you think that a J in 1 would be sufficient batter?—Conscientiously, I do. If you were employed in railway works you would recommend it ?—Yes.
Have you been employed on railway works?— Yes.
Where ?—On the Wellington and Masterton line.
Were you not dismissed for incompetency?— No.
Why were you dismissed ?—I cannot say.
At any rate you were dismissed because your employers were not satisfied with you?— Not exactly. What was the reason then?—l believe it was because the work did not progress satisfactorily.
How long were you.in the employ of the Government ?—About six months. Were you ever employed on a railway before ?—Yes. Where ?—ln Scotland.
Were your employers dissatisfied ?—No. But this was.your first employment in New Zealand ?—Yes..
■What has been your employment since you were dismissed ?—I have not been employed ; I have not sought it. ' Well, ou your reputation as an engineer you considered that batter sufficient I—-I did.
Do you mean to say that ?—I, do. * Mi-. Allan ; Were you employed bn railways in Scotland ?—Yes.
. By whom ?—By Blythe and Co. And you have had much experience ?—Yes. The 6 run bad a large business ?—Yes ; the largest in Scotland. And how long were you iu their sendee ? About sixteen years. During that time you often had to superintend the construction of railways ?—Yes. And consequently the question of batter had frequently to be settled by you ?—Yes. Who was the gentleman who employed you on the Masterton line ? —I was employed before I left home.
When you left the railway here was it in consequence of a quarrel with any of the other engineers ?—None whatever. What work had you to do ?—I had to superintend.
You did not draw plans ?—No ; others did that.
You were not dismissed for ineompetency ? —No.
Merely because the work was not going ou so fast or so satisfactorily as was required ? That was the reason as far as I understood.
Charles McKirdy, contractor, deposed : I have been in the colony about thirteen years, and have had much experience. I have had railway contracts here and in other provinces. I have seen the laud, the subject of this action. I saw where the house is. Where the house is has been partly excavated. I saw the breastwork. The ground between the house and the breastwork is made up by fillings to make it all flat in front of the house. The breastwork was indifferent workmanship—insufficient to resist any pressure. Mr. Hall showed me the plan of his ground, and I taped it out and saw where I should suppose his boundaries would come to, and I found that at the bottom, at the side next Tinakori-road, he left 3ft., and at the side next to Sydney-street he left a little over sft. The batter was about 4£iu. to the foot. If I had been doing it for myself, I would not have left so much. I consider what Mr. Hall left sufficient, taking into consideration the nature of the soil, which was partly rook and partly clay. I consider the subsidence had taken place owing to the insufficient breastwork, tbe made ground, and the swaying of trees which loosened the ground. If the artificial work had not been done no slip would have taken place. I consider the value of the land about 30s. perfect. I have sold land in Sydney-street lately, and know the value of land iu that locality. Cross-examined: The earth at the two edges of the slip was clay. If the excavators said it was friable loose clay, I consider they did not tell the truth. From the breastwork to the edge of the excavation was about 2ft. The pressure would be about a ton and a half to the cubic yard. That would be an average weight of a ton for every lineal yard. The made earth is not resting on a basis, and the earth would run off the slope on which it rests. That slope is 1 in 60. Mr. Travers: 1 in 60? —Yes. Then there corrld be no pressure on the breastwork ?—Yes, there would.
But soil would not run off a slope of 1 in 60? —lt would.
Do you mean to tell me, sir, that soil would not be stationary if shot on a slope of 1 in 60?— Ido. How far is the Eimutaka? —About 34 miles. What are the slopes on the sides of the Eimutaka ?—I never took the hearings. Upon what slope- will earth remain stationary ?—Upon no slope at all. In making ordinary embankments, if you tip a cart of stuff up, at what angle will the stuff remain ?—lt will rest upon nothing but a level
Do you mean to say that in tipping up a cart the stuff does not take a natural slope ? The stuff will.
Very well, what is the natural slope ? About 14 in 1.
And will it not lie there ?—Sometimes. What is the usual slope on railway, embankments ?—lt differs.
If you make a slope 6ft. high across this room, what would he the natural slope—what slope would you put ?—9ft. on each side. Then how many is that in 60 ?—More than 1 in 60.
That slope would stand on level ground, would it not ?—Of course.
Then stuff will stand on a less slope than 1 in 60 ?—Yes.
Very well; that is what I want to get at. Witness complained that the questions had not been put in a proper form. Air. Travers : You told me that the slope from the top of Hall’s ground to the breastwork was lin 60. I understand lin 60 to mean that in going 60ft. you rise 1. Now, the house is not 60ft. from the bottom of the breastwork, which is 3ft. down, so how can the rise be lin 60. Now, from the top of Hall’s house to the bottom of the breastwork what is the slope ?
Witness : 1 in 60. Air. Travers : And you say stuff will roll off a slope of 1 in 60.
Witness : Yes. Air. Travers : Very well; I have done with your engineering skill. Witness said he could not understand Air. Travers.
Re-examined : On sloping land like that in front of the house, if the natural ground were stepped and a strong breastwork erected, made ground might settle. John Eigg, a clerk, proved that he lived in the house on plaintiff’s ground in 1867 ( the breastwork had then been made. A slip at the west end took place about this time. The slip was the same as now. To Air. Travers : The excavations were not then made, and the slip I speak of was a slip of natural ground. I have seen the land lately ; there is a great deal of alteration. This closed defendant’s case.
It having been suggested that the jury should visit the spot and examine the land, the proposal, after some discussion, was assented to, and
His Honor, at six o’clock, adjourned the Court till nine o’clock this morning, when the Judge, counsel, and jury will visit the locality.
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New Zealand Times, Volume XXX, Issue 4468, 15 July 1875, Page 2
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5,117SUPREME COURT. New Zealand Times, Volume XXX, Issue 4468, 15 July 1875, Page 2
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