SUPREME COURT.

New Zealand Times, Volume XXXI, Issue 4778, 15 July 1876, Page 2

SUPREME COURT.

CRIMINAL SITTINGS. Friday-, July 14. (Before His Honor the Chief Justice.) SENTENCE POSTPONED. On Elizabeth Jane Williams being brought up for sentence for stealing a number of articles from the house of Sir. Lundon, at Foxton, his Honor intimated that he was not yet able to deal with her, and would nol impose a sentence until the following day, as it was probable that the child would be sent to a reformatory. CIVIL SITTINGS. C. W. BCHULTZE T. CORPORATION OF WELLINGTON. The claim was for £SOOO, for damages arising out of obstruction and diversion of the ' Kaiwarra and Porirua. streams from

the plaintiffs land, upon which was situated a mill worked by the water from the said stream. The following gentlemen were empanelled as a special jury:—Messrs. C. C. Graham, T. Mason, T. K. Macdonald, B. M. Clifford, G. M. E. Tolhurst, T. C. Binna, J. A. Allen, J. Laing, J. McDowell, J. F. E. Wright, J. Watts, and H. Gill. Mr. Mason was chosen foreman. Messrs. -Brandon and Chapman appeared for plaintiff ; Mr. OUivier (of Travers and OUivier), for defendaots. , The facts of the case as set out m the declaration and stated by Mr. Chapman were as follows;—Plaintiff alleged that he was possessed of a certain piece of land in the pro■vince of Wellington, and was entitled to the flow of a stream to and through the said land, and that the defendants obstructed and di-verted-the water of the stream watercourse from the land of the plaintiff ; and the plaintiff further asserted that he was possessed of a mill situated on the land aforesaid, and he was entitled to a flow of the stream, working the same, and the defendants, by erecting a dam across the stream, had diverted the water from the mill, whereby the plaintiff suffered great damage. The plaintiff admitted that the Corporation were entitled, by the Wellington Waterworks Act, 1871, to divertthewater,but averred that by thesaid Act they were required to make compensation to the plaintiff for so doing, and that by the same Act he was entitled to claim compensation for the injury done to his premises by such diversion. The defendants denied all the material allegations in the declaration contained, and in defence stated that no claim in writing for compensation for the alleged money in the declaration mentioned was made by the plaintiff within six calendar months of the time when the alleged claim arose, and that the action was not commenced within six calendar months after the accrual of the alleged cause of action. The issues were as follows;—!. Was the plaintiff possessed of a certain piece of land in the province of Wellington, and entitled to a flow of a stream to and through the same? 2. Did the defendants obstruct and divert the water of the said stream ? 3. Was the plaintiff possessed of a mill in the said province ? 4. Was the plaintiff entitled by reason thereof to the flow of a stream of water working the said mill ? 5. Did the defendants erect a dam across the said stream ? 6. Did the defendants thereby divert the water from plaintiff’s mill ? 7. Was the plaintiff^at the time of the alleged wrong mentioned residing, and did he continue from thenceforth until the commencement of this action to reside, within the province of Wellington? 8. Was any claim for compensation for the alleged wrong made by plaintiff to defendants within six months from the time when the claim arose ? 9. Has_ the plaintiff suffered any damage from the diversion of the water, and if so, to what amount ? Mr. Brandon, in opening the case, said the Corporation were by an Act of the General Assembly passed in 1871 given powers, for the purpose of supplying the city, to take water from certain streams and construct certain works within districts enumerated in the Act, and the plaintiff had been injuriously affected by the Corporation having taken advantage of the powers vested in them, by diverting water from the land mentioned in the declaration. He mentioned the Act of 1871, because the defendants had pleaded in one plea that plaintiff did not make a claim within six months from the time the grievance arose. He thought, however, that he should be able to show that the defendants had not interfered with the benefit derived by the plaintiff from the stream until within six months, the period prescribed by the Acts. He then proceeded to detail the facts of the case, prior to calling evidence. Mr. OUivier admitted plaintiff’s title to the land, in order to save the trouble of proving; and Mr. Brandon admitted that defendants were authorised to divert water from the stream under authority of the Wellington Waterworks Act. Mr. Brandon having read several clauses of the Waterworks Act, referring to compensations, &c., described the nature of the correspondence which had passed between the parties to the present action, the letters being placed in evidence. Two letters were sent by plaintiff’s solicitors to the solicitors of defendants, and a reply to the last of these was to the effect that the Corporation were unaware of the nature of the claim plaintiff had upon them. Then Mr. Brandon sent' in a specific claim of £SOOO damages for obstruction of the water of the Kaiwarra stream. The following evidence was then taken : Charles Win. Schultze sworn, deposed : lam a merchant, formerly a miller. lam the owner of the land mentioned in the declaration in this action. I have the fee simple of it. I have been in the possession of it from 1845 up to the present time. I erected a flour mill there, I commenced to work the mill (driven by water) from the commencement of May, 1845. The stream which drove the mill is known as the Kaiwarra stream. I worked it from the year 1845 up to the end of 1869. The mill is capable of driving three pair of flouring Stones of 4ft. each. (Witness described the machinery). During the winter we had a good supply of water, and could work three pair of stones from sixteen to twenty hours. In the spring and autumn we could drive two pair of stones for twelve hours, and in the summer time two pair of stones for eight hours. The usual work of a pair of these stones was six bushels per hour, and we could work up to fifty thousand bushels in the year. The manufacturing profit would be 9d. per bushel, that is, the net profit on the manufacture was 9d. per bushel. While I was working the mill my average profits were £I6OO per year. X was endeavoring to sell the mill, but failed to find a purchaser in consequence of a report having got about that the Corporation were going to take the water. I put a man (Mr. Foley) in charge from 1869 to work the mill as a grist mill. I could have extended my mill, but an extension would have been unwise, as the water was short in the summer time. . By the Chief Justice : The obstruction has had this effect, that frequently there would be no water running down to my dam.

By Mr. Brandon: if the whole of the water from the upper part of the stream above the dam were taken away the effect upon the mill would be to reduce the working power onethird. I could not under such circumstances work my mill during the summer months at all. In the spring and autumn months the work would have to be stopped two days to get one day’s work. The mill is of 16 faorse-power, and the water taken away by the Corporation would reduce it 4 horse-power, working continuously; but the reduction would be actually more, inasmuch as the mill would not under the circumstances I have mentioned work continuously during the tv^pnty-four ** Witness was then examined by the Chief Justice as to the extent of damage he considered had been done to his mill, and after a considerable time (for the witness was defective in the matter of hearing), it was elicited that he valued the property and ground at *Booo, although the damages were set down as £oooo. By Mr. Ollivier: In 1845 the Kaiwarra country wore a different aspect from what it does now. The hillsides were thickly wooded, and there was plenty of water in the stream. At first I started with two pair of millstones; I put up the third pair in 1845. This increase of machinery was part of the additional expenditure of £ISOO. The water was sufficiently plentiful to induce this increase. The works done by the Corporation sent a quantity of stuff into the basin, but subsequent to that the goldminers working up there had caused mud to run into the basin. After Mr. Foley died I lent my building to Messrs. Brogden as a barrack for immigrants, and at the present time it is occupied by Mr. Hirst as a storeroom in connection with his tannery. In 1869 the vegetation had been cleared from the surrounding hills, but the water remained about the same. It is not true that at the time of my retiring it was a notorious fact that the building was in a state of decay. About ten days before the sth of Juno was the first time I perceived the diversion of the water. John Glasgow (examined by Mr. Chapman), deposed : I am a millwright, living in Turakina. I know the mill mentioned in the dc<

duration. I was engaged in_ the erection of it, and was employed in it up to 1868. In the winter we could work three pair of atones per day. The capacity of the mill was equal to the strength of the stream in the winter, so that there would have been no advantage in increasing the size of the mill. (Here witness corroborated evidence of Mr. Schultze re the working power of the mill.) The charge for grinding was 9d. per bushel, the expenditure having ,to come out of that. The actual profit therefore would be the difference between the expenses and the 9d. For grist work Is. 3d. was charged. I have seen the stream recently ; the water has decreased. The effect of diverting the water from the stream is to the mill to a great extent useless. It is requisite to have a certain staff of men to work the mill, and it would be inconvenient to work with less, even though the power of the mill should be reduced. Hence the reduction of the power one-third would diminish the value of the mill more than one-third. It would be useless to work the mill in summer. Cross-examined by Mr. OUivier : I have not of late critically examined the building. I only noticed the stream, that there was not quite so much water as there used to be. As far as I could understand, the mill paid as well in 1868 as it had done previously. When I left the mill was in good order. I left in 1860, just prior to which date the new dam was constructed, costing £ISOO. The old dam was carried away by a heavy flood caused by the operations of a saw-mill on the bank of the same stream. The third pair of stones were put up about ten years after the mill was started. Given one-third less water, Ido not think the mill would be worked as profitably with two pair of millstones as it originally was. In 1868 Mr. Schultze offered to lease me the mill for £3OO or £4OO, but I desired a country life, and declined. Ee-examined by Mr. Chapman ; In the offer made by Mr. Schultze as to leasing the mill allowance was made for long service. Charles O'Neill, civil engineer, deposed that he visited the defendant’s dam. Had measured the stream on November 19, 1875. It was running at the rate of 945,000 gallons in the 24 hours, and the dam was overflowing at the rate of 108,000 gallons. Counsel was continuing to examine the witness, when he was interrupted by the Chief Justice, who pointed out that the evidence could have no weight, as it referred to a state of things subsequent to the period at which the complaint was laid; and Mr. O’Neill was therefore not subjected to further questioning. J. D. Oruickshank deposed that he was a millwright at the Hutt. Knew the plaintiff. Should consider the abstraction of a quantity of water would diminish the profit to a greater ratio than the mere diminution of power. Did not think the mill could be worked with a profit if a considerable portion of the water were taken away. By Mr. OUivier : I have been engaged in the erection of mill machinery, but have never been engaged in a flour miU in the preparation of flour. My own is a timber mill. I visited Mr. Schultze’s miU lately, but made no particular observations whUst there, having simply walked through the building. By Mr. Chapman : I noticed a diminution of water in the Kaiwarra stream.

By Mr. OUivier : I cannot say in what proportions. It was not my business to specially investigate the matter. This concluded plaintiff’s case. Mr. OUivier applied for a nonsuit, on the ground that plaintiff had failed to prove the allegations set out in his declaration, and he had also failed to prove that proceedings had been taken within the time fixed by the statute. Clause SO of the Act provided that the action must be brought within six. months of the accrual of the cause of action. The Chief Justice said he could not give a nonsuit on those grounds, which could only be raised by plea. If the learned counsel’s law were right, he (the Chief Justice) could direct the jury to return a verdict for defendant, but he did not see how he could give a nonsuit. Mr. OUivier (stating that he did not intend to call any witnesses) then addressed himself to the jury. The plaintiff had told them that he had for many years been in possession of a flour miU on the banks of what was once known as the Kaiwarra river, but which of late years had been more modestly referred to as the Kaiwarra stream. He had told them what the mill had originally cost in the year 1845, and the improvements since then effected, and also that he was making large profits from it. But after the year 1869 it appeared that the miU had not been used for the purpose for which it was erected. Foley did not appear to have, done much with it, for nothing had been heard of his operations, and it seems that he died shortly after his master retired from business. Mr. OUivier followed up the history of the mill as told in evidence, his after remarks going to assert that the property was not of the value estimated by the plaintiff, that it had not been used for the purpose of a flour mfll for a considerable tim» before the diversion of the water took place, and that it was not by any means in a good state of repair. All of which matters he asked the jury to take into consideration. But he submitted that the case was not one which should come to the jury at all In reply to the "Chief Justice, Mr. OUivier said 'his argument was that, inasmuch as the act of the Corporation was an act done under the authority of an existing law therefore no action could lie ; but he included the other point, that the action had not been taken within the prescribed time.

A long argument followed, and the point was discussed as to whether, in the ■ case of damages being given for loss sustained up to the time of the complaint, plaintiff would be entitled to bring another action for damages sustained since that date, the obstructions and diversions being continuous. TJltimately it was decided to leave the assessment of damages to the jury, and discuss the law subsequently. Mr. Brandon then addressed the jury, dilating upon the injury to defendant’s property caused by the obstruction, and submitting that he was entitled to substantial damages. The Chief Justice directed the jury on the points of the case requiring their consideration.

The jury retired, and having been absent for about three-quarters of an hour, returned and recorded their verdict as follows : They found that the plaintiff was entitled to £5 damages for the time between June, 1874, and March, 1875; and £6OO for all the damage sustained prospective or otherwise. The Court then adjourned.