Magistrate's Court.

Waimate Daily Advertiser, Volume IV, Issue 160, 1 February 1902, Page 3

Magistrate's Court.

o "WAT MATE, TliVKmw.Y, JANUARY 80, ’

(Before Mr J. Keddell, S.M.) CIVIL CASES. Two cases were adjourned by con-

sent till next court day. Manchester and Co, v. L. Inkster, claim £ls IBs Id. Judgment was gfven by default, with costs dll os. WATER EACH CASKS.

YCaimate County Council (Mr Hamilton) v. Andrew John McLean (Mr Lee), claim £3 15a »d, for charges for ■''Aißinivnfi.Kr,'; for water race. Mr Loa pleaded 11 not indebted.” Mr Hamilton explained that defendp.nt was a holder of land in the Low w

Waihao water supply district. A demand had been made on McLean for the rites. G. V. Cochrane, County Clent, gave

evidence that the WVnnato County Council had control of the water supply district with power to levy nues. V7ater race by laws, rate rolls, and other documents w ere put in as pi oof that nil things had been done in order. Witness staled that defendant had paid the interest rate but declined to pay

the luaii't mance charge. To Mr Loo : Had boon County Clerk Rincs 1895. On one occasion at; least Mr McLean had paid his rates underprotest. Witness could not remfimbor if ho had said that if a wrong cL.iige had been made tho Council injight refund the money, though he might have done so. . \

John Morris, supervisor of tho Lower Wailmo water races, stated that McLean had a race through his property. He had no natural supply and no private water race. To Mr Lee : McLean had two races on his property. The one near the RedcUff road was supplied from '■Whitney’s Greek and nob from the Waitaki river. There would be no difficulty in bringing in water from the Waitaki. The creek bed of Whitney s Creek ran through McLean’s property but was dry. He had been 18 or JO years in the Waihao District. There was a footbridge over Whitney a Creek on the road below McLean’s laud. Through McLean’s Isa 1 the. water, race followed the direction of the creek. If tho water, wore not taken for the race if would go down Whitney’s Creek bed, but would not run as far as McLean’s except in flood time. Last week the water in the racereached McLean’s; McLean Bad ft well on his property, ~ > _ - - ' :P. Conn^l,.:b^traro^X:fo^e^9Pply Uv»Mjr *

McLean was supplied by the race. Knew Whitney’s Creek thirteen years ago. He did not think it would reach McLean’s now if tho dam were

‘removed. R. G. Baxter, authorised surveyor, stated that ha knew McLean’s property having examined it. The dam across Whitney’s Creek was part of the scheme of water races. Whitney's Greek at McLean’s was shown in the Government* Waikakahi plan as a dry cask bad. This was not the general course of Whitney's Creek but a flood overflow. Witness had been appointed by the County Council to examine the whole district with reference to those who had a natural supply of water. McLean had none. To Mr Lee : He did not think water in Whitney’s Creek would reach McLean’s exempt in flood time, oven without the dam.* The race came from Waitaki at one time, buo Whitney’s Creek was found a sufficient supply. To Mr Hamilton; At the time Whitney’s Creek was dammed tho land was the property of Mr Allan McLean. J. Hanley, farmer, Waihao, said ho had been in the district 25 years. He knew Whitney’s creek. The water in the creek reached McLean in flood lime only. This was tho case for tho phiinfcifTi.

]V ur the dttfc. idunt Mi' Laic said that tharo wr.s notiiing before tho Court to prove that all tlie uoeosriry legal forms had boon gone through at tho time of tho constitution of tho water district. Ho pr icoodod to dose riba at length tho saricoa steps which had not boon proved to nave b son gone through to establish tin district and to make bv-Gws. lie asked for a iu.ii suit. Mr Flanr'ltou contended drat when it was prov-'d that a district was in existence, tho court must assume that all proceedings Wore done in order according to law until tho contrary was proved, Ho qu ued author;ties iu support of his contention. 110 had proved more than was sufficient to make his cn.ro good. Thu modern tendency of courts was to uphold bylaws made by public bodies on all possiblooccasious allowing coasideraole latitude. Mr Loo quoted more authorities upholding his side of the question, aud on account of which ho asked for a non-suit. His Worship reserved his decision on the question of tho non-suit. In the County Council v. A. Ilonery (judgment held over from Jana try Id) His Worship gave judgment. Honory’s tide was undisputable, and that being so he declined jurisdiction in tho case. The matter of costs was held over,