RESIDENT MAGISTRATE'S COURT.

Tuapeka Times, Volume II, Issue 93, 20 November 1869, Page 3

RESIDENT MAGISTRATE'S COURT.

BITTDTG IN EXTENDED JTJEISDICTIOIT

Thursday, Nov. 11.

The Executors of the late Matthew Potts v. Joel Boulton, and Lydia Boulton, his wife. — Claim of LSO, for damage alleged to have been done to plaintiffs' freehold property, by reason of defendants, through their servants or agents, excavating so as to cause the ground to give way. Mr Keen (from Mr Ward's office) appeared for the plaintiffs, and Mr Mouat (from the office of Mr M'Keay) for the defendants.

Mr Keen opened the case. He said that plaintiffs were the executors of the late Mr Matthew Potts, and trustees of his property for the benefit of his widow and family, of whom they were the guardians. As such, they were the holders of section 2, block 11., Peel-street, Lawrence ; and the defendants are the owners and occupiers of part of section la, Ross-Place, which adjoins section 2. Up to about six months since, the portion of section 1a referred to had been unoccupied by defendants, but latterly they had built a house and bakery upon it, and had, about May last, in order to clear the whole of their ground, dug and excavated so near co the boundary-line between themselves and plaintiffs' section, that plaintiffs' ground had fallen down on to the ground held by defendants. The nature of the ground was a slope, the higher portion being that owned by plaintiffs, and the spur terminating in defendants' section. As things stood, very great damage had been inflicted. The plaintiffs liad been deprived of the use of a portion of their ground — had been prevented from fencing it, and would now be compelled to erect a retaining- wall. Very liberal offers had been made from time to time to defendants, who had all along persistently refused to come to terms. He (Mr Keen) would be able to prove the facts and the damage sustained ; and he thought he should be able to show that defendants, when they undermined the ground, did not do so ignorant of the consequences of injuring their neighbour. Alex. Stewart, M.D., sworn, deposed — Am one of Mr Potts' executors. I know section 2, block 11., the property of the estate. A portion of it has been damaged by the excavations carried on by the defendants. lam not well acquainted with the ground. I directed this action to be brought in common with my co- executors, and I claim the damages sued for. Cross-examined — I remember the original state of the ground. lam not aware that it has been mined upon. J. ML. Mcolson, surveyor, sworn, deposed — I know the ground in question. I have measured it, and produce a plan of it and the adjacent sections. 1a lias been dug upon, and a nearly perpendicular face has been formed towards plaintiff's section, 2. A slip has taken place, bringing down a portion of section 2. I am of opinion that the excavation caused the slip. Ido not think the slip would haye t taken place but for the excavation. The witness gave various measurements ; and in reply to Mr Mouat, he stated that there was a drain which emptied water towards defendants' ground; that the discharge of water in that direction would certainly loosen the ground. He also stated that there was a considerable quantity of top stuff, composed of all sorts of rubbish, accumulations from plaintiffs' premises, and this had fallen in ; but he was sure of the existance of some solid ground. He did not see it at the time it was slipping, but saw it before and after. It presents the appearance of a slip of solid ground.

W. E. Farrer, sworn, deposed — Am one of the plaintiffs. Have lived in Lawrence, close to the ground where the slip has taken place, for nearly four years. Know the ground well. Eemember that it was perfectly solid and safe before the defendant built his house, and also 1 afterwards, until he set men to -dig away the end of the spur: then "our ground gave way. The giving way was undoubtedly caused by the excavation:

In cross-examination, this testimony was unshaken.

James Robinson deposed that in May last, he requested permission of defendant to mine on his ground. Leave was granted, and he mined and excavated on part of section la, just underneath Potts' ground. Potts' ground has since fallen in. He was aware of the deposit of rubbish, and that the ground years ago had been tunnelled and shafts sunk in it. He came across many of these. Two other witnesses were called, viz. , John M'Ney and David Whittit,.builders and contractors. They had examined the premises. A retaining-wall was necessary, which would cost from L7O to L 95.

Tins was plaintiffs' case. For the defence, Mr Mouat submitted that the plaintiffs had failed to make out any case. In the first place, they had not proved that the slip was occasioned by the «ct of defendant. Secondly, they had not proved that there was any slip of solid earth at all ; and thirdly, they had not proved infliction of any actual damage. On these points Mr Monat addressed the Court at considerable length, citing cases in support of V"« theories, and quoting at length from various legal textbooks.

He called James Robinson, who deposed to the rotten state of this ground years ago ; that he himself had sunk shafts in it ; and that he was aware of the existence of drives in it. Also that the surface was loaded with rubbish of all descriptions ; and that it was this rubbish, and not solid ground, which had slipped. Mr Keen replied on the case. He regretted, with his friend, being nnable to find in any of the authorities at his command a precicely analagous case. A case very similar had, however, recently occurred in Dunedin— a case heard before Mr Sbrode, and reported at considerable ( length in the " Daily Times" of the 28th 'October, 1868. [Mr Keen read the report ;it was Alexander v. M'Gavin. The' case was almost identical, and the* Benoh being satisfied that the defendant hacr cavsed the slip, gavb judgment for L2o.] His Worship said "that he would reserve judgment. Monday, Nov. X 5. TSxeeutors of Potts v. Boulton. — His Worship gave judgment in ihis case. He analyzed the facts very minutely, and said' he could not consider that it was in

any way taken out of the ca+egory of cases in which the removal of support was a ground of action ; and he could not think that the accumulation of rulbish, upon wliieli so iiiueh stress had been laid, amounted to an artificial erection, such as a house. That the ground had been previously mined on he had borne in mind ; but Potts did not do it, and did not contribute to it. There wera, as had been observed on both sides, no cases quite analagous ; but after a large amount of careful consideration of every point on both sides, he could come to no other conclusion than that the defendants were liable ;j but he could not give anything like the amount claimed. Verdict for plaintiff 3. Damages, Ll2, with L 2 3s. costs of Court, and L 2, expenses of four witnesses.

Peter Wilson was charged by the police with having been drunk and disorderly the preceding evening. Constable Titchiner deposed that accused was very riotous, and that it took the united energy of two constables to convey him to the lockup. Having been before the Court before, he was fined 205., with the alternative of seven days' imprisonment. M'Coll v. John Ah Loo.— Claim of L 3 Ts. 10d. Settled out of Court.

Gibb v. Dunnett. No appearance of either party. Case struck out. Donovan v. M'Nickle.— Claim of L 3, value of two floating-dogs. Defendant pleaded not indebted. Plaintiff deposed that he lent the dogs to Thomas Aimers, a carpenter, who had recently left Lawrence. They had never been returned ; and after Aimers left, plaintiff heard that defendant had them. Plaintiff went to defendant, who denied having them, and told plaintiff to search Aimers' shop, which plaintiff did, but without success. Subsequently, plaintiff heard that WiHiam Mears had the dogs, and plaintiff then communicated with the police, but they said they could take no action. After that, the plaintiff went into defendant's store, and saw the dogs there covered over with a bag of chaff. In cross-examina-tion, plaintiff adhered to the above statement. Defendant deposed that about two months ago, Aimers left Lawrence in his debt, and sold him a lot of goods, in part liquidation of the debt, these dogs among the rest. He asked him particularly how he came by the dogs, because when he (defendant) first saw them he did not know what they were for. Aimers said .he bought them from Donovan ; and it was arranged that defendant should sell them and place the proceeds to Aimer's credit. Defendant denied ever having told plaintiff bhat he had not got the dogs ; they were in his shop for any one to see, and scores of people had seen them. If they were covered up, it was by accident ; and it did not appear that they were covered so as to prevent their being easily seen, from plaintiff's own statement.

Their Worships held that the sale by Aimers to defendant had not been completed. Verdict for the return of the dogs, or for amount claimed, with costs in either event.