NEIGHBOURS AT VARIANCE

Pukekohe & Waiuku Times, Volume 5, Issue 188, 4 July 1916, Page 1

NEIGHBOURS AT VARIANCE

Wall Building Sequel.

At the Pukekohe Magistrate's Court on Friday last Mr F. V. Frazer, S.M., resumed and concluded the bearing, adjourned from the previous Court, of the action in which Mr William Russell, plumber, of Pukekohe, claimed £2O damages from Messrs Cooper and Curd, coachbuilders, in respect of rain water said to have flowed off the latters' roof during building operations on to the plaintiff's dwellinghouse adjoining, thereby, it was claimed, damaging the plaintiffs premises. A claim for £2O was made in respect of such damage and for inconvenience oausedlsy mortar and other building materials left on plaintiff's property. The case was "called" at 2 p.m. and occupied the remainder of the day and all the evening up to 10 p.m. In the early part of the proceedings the Court was temporarily adjourned to enable the Magistrate to view the wallpaper of thd plaintiff's sitting-room which, it was alleged, was affected with mildew as the result of the soakage of the water. Mr H. G. R. Mason appeared on behalf of the plaintiff and Mr J. G. Haddow represented the defendants. The cross-examination of plaintiff was then resumed by Mr Haddow. Plaintiff, in reply to Mr Haddow, stated that he, plaintiff, papered the house three or four years ago. The damage was done in the sitting room. He could not say whether the ground underneath the floor was wet or dry. Spots were continuing to come through the paper in the dining room. Since March, when he cleaned the paper, the stains had reappeared and also black marks. He refused to give Mr Cooper permission to erect a scaffolding on his (plaintiff's) property. He had erected a fence between his and defendants' building before the brick wall was erected, but he did not put the fence up with a view of obstructing the erection of the wall. He objected to the scaffolding being erected as it would have protruded over his roof and would possibly have damaged it. To the best of his recollection he paid os a roll, for the wall?paper in his sitting room. There was no mould on the paper previous to last summer.

Mr Mason here read extracts from the " Pukekohe Times " to show that at intervals between 28th January and 24th March Pukekohe was favoured with several heavy downpours of rain and the Magistrate said his memory served him that heavy rain did fall at intervals. Re-examined by Mr Mason: He never on any occasion refused permission to Massey or defendants to clear his property of debris, and Massey did not apply for such permission.

Mr John Routley, who acted as defendant's architect in supervising the erection of the building, called by Mr Mason, agreed that a plan of the building as submitted by Mr Mason was substantially correct. He further, deposed that he remembered having seen a board on Messrs Cooper and Curd's building which had the effect of diverting the rain water so that it would not fall on Mr Russell's property. It was when the builders were about half-way through with the job that the question arose as to permanently dealing with the water from the roof. The previous intention had been to put the pipe outside the building, but as there was only two inches space left between the brickwork and Messrs Cooper and Curd's boundaiy other arrangements had to be made by reason of plaintiff's hostility. He

had not included in the specifications temporary arrangements for dealing with the rain water as he did not think the same necessary and never gave it a thought. By Mr Haddow : It was the usual custom to leave to an intelligent builder the matter of conveying rain water from a roof during building operations. He believed after having inspected the wall paper in Mr Russell's sitting-room that it was in the same condition at the present time as it was twelve months ago. He was of the opinion that the paper only cost 2s 6d a roll. He would expect the paper in a low room, in which the door and windows were kept closed for some time, to become " blue mouldy." He considered that the builder properly dealt with the water. Mr F. W. Mountjoy, architect, of Pukekohe, deposed that on the occasion of a storm on St. Patrick's Day (March 17th) he saw water shooting out of a gutter on defendants' building in the direction of plaintiff's house. There was a sheet of corrugated iron on defendants' building and the water seemed to be both running on and shooting out from it. He did not notice any board on the building that would retain the water. Assuming he had been the architect for the building he would have provided for proper means to carry the water away during the time the alterations were being made and he would have considered himself responsible for any results that might have arisen if he had failed so to do.

By the Magistrate ; A builder had to protect his own work. By Mr Haddow : It was the builder's place to approach the architect re the water if it was not mentioned in the specifications, but if the builder did not approach the architect he would hold the architect liable. Mr \ William Henry Fausett, builder of Pukekohe, stated that he had inspected the paper in plaintiff's room and found it to be baggy and mildewed and concluded that such was the result of water running under the house, the floor of which was close to the ground. He estimated the cost of re-papering the room' at £4 10s. The damage to timber in the building as a result of the water would amount to £8 to £ 10. It was shortly after the heavy downpour of St. Patrick's Day that he inspected the room. Mr Haddow, before calling evidence, addressed the Magistrate, and contended that the action would never have been brought against defendants had Massey, the contractor, not gone through the Bankruptcy Court. He claimed that the real cause of the water splashing on to plaintiff's property was that the bricklayer put a sheet of iron on the brickwork. He accordingly submitted that the action had. been taken against the wrong party. The Magistrate here expressed the opinion that the responsibility for what water had gone on to plaintiff's property was divided between the defendants and the contractor as prior to the contractor's erection of a sheet of iron to deal with the water some rain had fallen. The sheet of iron was, however, in position at the time of the heavy downpour on St. Patrick's Day and he considered the contractor to be the responsible party at that time.

By consent of the Magistrate, Mr Mason re-called the plaintiff, who said that the greater quantity of water fell on his property before the 17th March.

Conrad Cooper, a partner in defendant's firm, deposed that when the property was surveyed in preparation for the alterations it was found that plaintiff was occupying about eight or nine inches of their property, but they yielded two or three inches and the wall was erected two inches further back.

After agreeing to the erection of scaffolding on his property ' plaintiff .refused to allow them to put up a scaffold, and erected a fence, which through encroaching on their property had to be moved back. A board was erected to control the passage of water that was dripping on to plaintiff's property as a result of a complaint made by plaintiff. After Christmas, when the first rain of any consequence came, the board had the effect of diverting the water into their (defendant's) own building. From the beginning to the end of the contract about a third of their premises was uncovered, and their men lost very little time at the bench, as it rarely rained. The soil round Mr Russell's house was dry and would soak up water. Cross-examined by Mr Mason : Only a minute quantity of water went on to plaintiff's property before the brick wall was erected. JUDGMENT.

The Magistrate non-suited the plaintiff on his claim for damage by water but awarded him 5s damages, without costs, in regard to buildiDg material left on his premises. His Worship remarked that plaintiff had failed to show neighbourly spirit and it was an action that should not have been brought.