AN INTERESTING CASE

Wairarapa Age, Volume XXXI, Issue 10718, 31 October 1912, Page 6

AN INTERESTING CASE

ALLEGKD BIIEAOH OF CD VIC:\ANT.

WHATMAN v. ABRAHAM AND WJLLIAAIS.

A case was en mmo need in the Supreme Court at Master ton yesterday, before Mis Honor the Chief Justice (Sir .Robert Stunt) and a jury of twelve, in which Arthur P. Whatman, of Lower Taueru, sheep-fanner, claimed from Abraham and Williams, Ltd., stock and st-.iio-.; agents, a sum of £7OO for alleged oreaeh of covenant. Sir John Fimilay, K.C. (with him Mr J). K. Logan) appeared for the plaintiff, and Mr C. P. Skerrett. K.C!. | (with him Dr Trimble) for the deiendant company.

The following jury was ompannollodMessrs K. K. Klcoate (foreman), W. Hawke, W. Iremonger, A. King, A. (J. Foist, F. Osborne, F. G. Williams, W. -R. Kemhlo, J. Stilker, •> ■ j Harman, P. Hodder and J. Ogilvv. The plaintiff, in Lis statement claim, alleged that by memorandum of lease under the Land Transfer Act. bearing date Decernber '2oth, 1900. leased to the defendants th-.t piece of land situated in the Provincial district of Wellington containing 218 acres 3 roods more or less, being allotments 19, 20, 21. and 22 on the plan of subdivision of the Ahikouka and Matei Blocks, for a term of seven years from October Ist, 1905. Under this tease the defendants covenanted ■with the plaintiff as follows: —"That ■the company will at all times as ai>

said repair, maintain and keep In a good and tennntable state of repair

and condition, and cleansed, all buildings, erections, fences, ditciies, drain:; and watercourses that now arc or ; hereafter be erected or subsisting upon or around the demised premises lor any part thereof . . . i we-av and tear . . . excepted, r.n;:

will, on the expiration or other so or determination of the said term r: the like .state of repair and condition and cleansed as aforesaid, tare aforesaid, yield n«d deliver up i)ie demised premises to the lessor. The coin]):ny will at all times as aforesaid keep all stock out of ail the plantations on the said lands, ana will preserve the said plantations on the said lands, and will not .fell, cut. remove or damage or destroy ony live timber tin on the s/.id lands and premises." It was stated that the lards were valuable farm lands, And used for the purpose of raising stock ; that shelter was provided for stock in the shape of plantations ; that the stock depasturing on the hnd were watered from a watercourse running through

the land and fed mainly by springthat it was essential to the profitable farming of the land that the plant tions and watercourse should be protected from damage by stock.and at

the commencement cf th? len«;« the

, we-ro good :unl .sufHoii-ir, fence* (-reeled; that the defendant had allowed the fences to get into disrepair whereby stock had got hivi i V tv:;r-:.a J .::rr:>and greatly damaged i'u':;;; that tludefendant had i.-n allowed th" fences protecting the watercourse to t;o into 'disrepair, whereby stock had greatly damaged the banks and prejudicially affected and altered the bed thereof, and had not kept the -watercourse cleansed and in good condition ; that on April 18th , 15)12. the plaintiff caused a notice to be served on the defendant, calling attention to the alleged breeches of ronvenant, and giving an opportunity, so far as possible, then to perform the said covenants that tir..s notice v.::s renewed on July Ist, 1912, when attention Mas drawn to the particular breaches of covenant; that the defendant had failed to comply with either of the notices ; that the plaintiff was entitled to the reversion of the said lands and premises, and for the purposes of this action the defendant- is to lie deemed to have quitted and the plaintiff to have taken possession of the said lands, as on the expiration of the memorandum of land lease. Tn con-

sequence of such- bronchos the plaintiff alleged that lie hac! suffered the

following damage : In respect to the | watercourse, £450; in respect of boun- | dary plantations, £150; in respect of 1 an inside plantation, £IOO. The plaintiff therefore asked for judgment 1 for £7OO for breach of covenant. j The defendant company, in its .statement of defence, admitted that it was desirable that the lands leased to it should have shelter for stock and that shelter for stock was at the commencement of the term provided by certain plantations; but the defendant company denied all the other allegations contained in paragraph <5 of the statement of claim. The defendant company denied that a watercourse ran through the said land, and that in dry and summer seasons such watercourse was the only water supply for the stock depasturing and raised on the leasehold land. r l he defendant denied each and every one of the allegations in paragraphs 7 and 8 of tin: statement of claim (referring to water-supply and plantations). The defendant company denied that it had allowed the fences on the said land Ito get into great disrepair whereby stoek bad got into the said plantations and greatly damaged the same as shelter, and had wholly or partially destroyed many trees, and the defendant company denied that the value of the said land as a farm for stock had thereby been greatly diminished ; and that defendant company denied that it had wholly or p.vrtly ,done to the trees on such plantations | The company admitted that in tlio

year 1006 stork was permitted to enter into two of tli« plantations 011 the said leasehold land, and damage was done to the trees on such pi an at ions l,y stock. Thereupon the plaintiff, being aware of the matter aforesaid, agreed with the company that the

damage to srch plautntifws should he

remedied -ml made gocd by the defendant planting on the leasenoM lands a number of trees. The company planted the trees and duly performed its part of the agreement. The company denied tlr.t it had nllowed the fencing protecting the alleged watercourse from stock to get into disrepair whereby stock had greatly damarred the banks of the watercourse and prejudicially affected or altered the bed. The company denied tlr.it it had failed to repair or keep in good condition and cleansed the watercourse or ha<l permitted the watercourse to !><- overgrown and filled np wit!l grov-1-lv; and rubbish. -T'lio c6mpas\y acme' that, the 'flow of water therein It; dry ami summer months will be stopped, or greatly impeded or the quantity, purity and usefulness of the

water injured. ])r Fine! lay addressed the jury at considerable length in support of the plaintiff's ease, and then proceeded to call witnesses.

Arthur P. Whatman, the plaintiff, deposed that lie li:ul acquired the property iu question , from Mr W. 0. Buchanan, and had fanned it success-