A CONTRACTOR'S RIGHTS

Taranaki Daily News, Volume LIII, Issue 50, 8 June 1910, Page 2

A CONTRACTOR'S RIGHTS

TAKING STONE FROM A STREAM. p There was only £lO involved in the case. McCormic.k v. Cowling, heard in the S.M. Court yesterday morning, but it touched a matter of great interest to people having on their properties, creeks or stream—or, as we .persist in styling them hereabouts, rivers containing stone suitable for road making purposes. Mr. J. B. Roy appeared for the plaintiff, and Mr. Standish for the defendant. The statement of claim set out that on or about April 19 last the defendant wrongfully broke and entered the plaintiff's lands and felled a tree growing thereon partly across the Timaru stream (which partly bounded the land) and destroyed a protective embankment made >by the plaintiff on such stream, comprising about two loads of stone, which stone the defendant took away and converted to his own use; by such felling and removal the defendant had damaged the bank of the stream and induced the current of the stream to undermine sue!) bank and to cause serious damage to the plaintiff's land. For this the plaintiff claimed £lO general damages. In outlining the case, Mr. Roy said that it was not possible now to prove special damages, but none knew how much damage to the plaintiff might follow ■ this action of which the plaintiff complained. It was hoped to show contractors that they could not do as they liked upon properties from which they drew their stone supplies. The evidence of the plaintiff was that the defendant cut down a tree that v.is holding up the stony creek bank which formed one of his boundary lines, and thus caused the water to scour out the -bank, possibly with a view of exposing further stone. He had also taken away- a quantity of stone which the plaintiff had set up as a fence, thus al- j lowing his cattle to stray from his property. When he spoke to tho defendant about the matter, he admitted having done wrong. He had e iv?n permission to remove stone from the bed of the stream, or to come on r.is property and 1 cut down the tv?,".. To. Mr. Standish: He had had the farm about six months, a:id wis. often clown at the stream. He didn't think the gale brought the tree down, pnd besides, "You can't get away from the axecuts, can you?" He did not think there would have been much damage had the tree fallen of its own accord, or 'by the force of the gale. Defendant had offered to replace the stone taken. He had not refused to accept this. Thomas Morris, a farmer, of Tatarimaka, said he had vis'ted the spot in company with the plaintiff. He saw there a towai tree, in the river." with its roots cut, and the branches lopped off. It had been felled from the bank. IV effect of this was to throw the water with force against the hank and set up an firqsion, which might in time cause serious damage. i To Mr. Standish: In heavy floods no | had seen this part of plaintiff's pronerty under water. To the Court: He was of opinion that the tree had been purposely felled. Robert Ellis, county clerk, said that the defendant had taken a contract for the delivery of stone at the Timaru depot. No notice was given to the property owners of intention to enter this property, and it was not usually clone here. The Council had not specified that the stone was to be taken from this stream. Mr. Standish pointed out that it was not the duty of the contractor to give notice. Mr. Roy: The county didn't, arid your client became a trespasser. The defendant said that the plaintiff had seen him getting out the stone, and made no complaint. This tree fell across the stream, and as the branches lt'o-Ved his roadway he lopped them off. He had previously cut its roots, because i•> ivii hanging. Had he left it alone it would have caused more damage in flood time. The stone complained of was hanked up on the dry bed of the river, where it would be covered by water in the winter. He had admitted removing the stone, and offered to replace it, but the plaintiff would not have that, and threatened to make him "sit up" for it. Just before completing the contract, he put his bullocks on and hauled out the trunk. Mr. Roy: Don't you think it was a i "pretty cool cheek" to take away that stone bank? —I offered to replace it-. Mr. Royr Yes, after he found you out. , You seemed to be surprised that he [spoke to you about this.—He accused me of cutting down two trees. Mr. Roy: I see. Two sins instead of one. Harry Looney, who had been bullock driving on the job, had little doubt that 1 the gale at Easter brought the trees down. He considered the plaintiff had ; been benefited by the defendant cutting . the roots away. The Magistrate said there was no . doubt that some trespass had been eom-j mitted, and some damage done, but not to the extent claimed. The defendant! ' had not admitted cutting down this tree, and it seemed probable that the gale was responsible. But the plaintiff was entitled to some compensation for the unwarranted entry on his land. Judgment was given for the plaintiff for £3 and £2 15s 9d costs. J