DISTRICT COURT.

Wairarapa Daily Times, Volume XV, Issue 4391, 12 April 1893, Page 2

DISTRICT COURT.

MABTBBTOH-TUEBDAY. (Beforo'Hia Honor—District Judge Robinson,) _ BWTCJtt'OnD V, MARTIN, Claim £SO for alleged damage to property.

Mr Beard for plaintiff, Mr Pownall for defendant. . d&' The following additional ctm was given by Mr Blatcbford afMW went to press yesterday :-At flooTtime tho water spread in section 58 I from 25 links to three chains, accord,ingtotho height of tbe banks, If j sheep get into the ditoh they could not j get out unless they were very strong, In May 1886 he called the attention of defendant to what ho was doing, In reply defendant Blid lie would chm.ouk the oreek from plaintiff's crossing downwards so as to lower ; the water to allow stock to cross, The first time the creek was, cleaned was jin January 1887. Witness had consented to allow the cleaning to stand over till the warm weather, j From 1887 to 1890 the oreek was cleaned , about once a year, but not till) witness called attention to it. Too, last lime iU week had be«Q oleaned [w

AMgust 29th, 1802. Since that dm o nothing had boen done. Tho lower portion of tho swamp was becoming Worea each year and this was pointed oat to tho defendant,. Witness had tuna sustained considerable damage by tho accumulation of water, Considered, that to oloan it out properly for a distance of twenty chains would costaboutß6spercuain, Thodepreciation to the selling value of the property would be £SO or £OO at the least.

By Mr Powuall: Witness had no particular ground of complaint so long as the creek was cleaned out. jfogflitHJlr Martin sold and left the PPyabout tho end of 1892, Witness had tho lowest section in the

locality and was near lha junction with the rivora. The ground was not swampy towards llio Ruaniahunga river, It was dry loamy land and stony both sides. If tbo creek was properly cleared it would empty the water into tbo Ruamiihunga Hirer. Would not deny that tho water bad increased on all tho sections during the last four or fivo years, Did not consider the planting of melons had blocked tho water couise. The p»d-> dock was no good to km in certain seasons, Hadnoo.losUnyslieop, be'c'wßreHlad carefolly watched them i\Vgor appeared, The defendant had said he did not think he had any right to clear tiio creek, The value of witness' property would bo about ten pounds per acre. Witness had no drainage into the creek anddid not do anything to clear it, Ho did not complain ofthe drains on defendant's property when they were being cut. He did not know what tho effect would be. When the water became a nuisance then be began to complain. Tho portion of section 14 which witness sold to Mr Martin has always been a wet swamp, but tbero was no defined water course. Be would not deny that ho had suggested to defendant that ho should cut this drain from tbo Devil's Hole through witness' ■"ploporiyTso ns lo uinko a permanent course bo long as ho (Mr Martin) cleaned it properly, By Mr Beard: The wliolo complaint was on account ofthe drain not being kept properly cleaned, and he had tried to settle the matter in a friondly spirit on several occasions, Bv Mr Powna.ll: If the drain had

been taken through witness' property to tli9 Kopuaranga creok witness >. would have paid half and have kept a % portion of it clear, Witness had nude a proposal to the defendant to this 1 effect, but could not swear to the date proposal was made, It was, however, repeated on the day that dofendant had sold the property. By the Jury ; Beforo Mr Martin made any drains the water must have silted through tho ground, oxcopt in heavy floods or overflow, P, C, Frasi, surveyor, said he had

known the country for tiftetn years. tin February last he mado an inspection of the "drain on defendant's property. He fouud tho wator four or five feet deep in portions of tho creek of which about twenty chains ran through Blalchford's property. The : : slate of the creek made it difficult to cross sheep and cut off the dip from the mt of tho section, The gully affected by the drainage would be about two acres. It was now a disadvantage to plaintiff's property, and Ito give proper access it bridge of forty feet HBHHprcrcek could be properly about 30a per chain. tf to extent the value fflßHs)?6perty bad been decreased. jr BSore the drains were cut, there was t no stream of water in tho gully exLr- cept in heavy floods. P' 1 By Mr Pownall: Tho proper outlet I (or tho swamp water was through Mr Blatobford'a property. There was evidence of a natural gully or water course in a portion of the property. llltlio creels woro kept clean and confined there would be no nuisance and only a small bridge would be required, By Mr Beard: Tho cost of the small bridgo would be about £2O, but as it is now a bridge would cost 1 £SOO. James Scorer, called, said he was a labourer, and resided on the Opaki. His property was on the bank of the Baamahunga, two miles highor up than plaintiff's, There was a lagoon there, but there was no visible supply. In order to drain this bo took a ditch up and lowered the water in tho lagoon two feet. There had since been stream running in the channel, from the lagoon. Mr Downall objeoted to this evi« dence, uwdid not see how far it wouldjejl decided to admit the evidence for what it was worth at present. ""'Continuing, witness said ho considered the water came from the

bills, The property of witness was v lower in comparison to tlio river, than ' plaintiff's. Fred. Wrigley, farmer, residing on tbe Rangitiiniau, said ho knew the property of plaintiff and know the creek running through it, It was now a Bwamp, and, in the opinion of witness, was really useless to the extent of two acres. In order to keep the water off, it would require to be drained to thn Kopuaranga, A bridge was necessary over tbe creak. A. J. Kawson, survejor, said he Lad made a survey of the creek and drains at Jjlatcbford's and Martin's properties, He found that tho drains had been so cut as to drain into the creek past Blatcbford's house. Another drain went past the boundary of Blatchford's fence to tho Kopuaranga river. The creok bed in seotion 58 was flooded and blocked up with vegetation, at the bottom of ihecreek it lodged, and covered be* and two acree, To drain P erD,aDeQt ' y wou ' l ' cost a cno ' n ' a bridge """" ff"oWWß.oocessary at a cost of £lO. He considered this swamp was fed from the hills at the back. . porty boforo the drains wijmt. Since tho drains wore cut no doubt the ground l>ad sunk, The swamp bad been low>. rod Borne soven feet. Jas, Sneli, the next witness, corroborated the previous evidence. Mr Blatcbford, re-called, said the creek wan a toot lower now than it vy Bftflovembor last. Tho vegelutftflKfill overgrown, Jjfa gnell gave cvidenco in respect of the creek being affected by tbe river years ego. The general character of land on Blatchford's section was dry. Walter Blatcbford, brother of the plaintiff, had known tho property for about twenty-seven years and give evidence in Bupport of and in goneral corroboration of that given by the plaintiff. Ho considered the property depreciated £ 100. D, McLacblan said he owned a smtion'ilß'DS Martin's, He bed lived ti TV a numl)er ? f 3 ,ears ' ? fl gave evidence corroborative of plain, tiffs in reCject of the state of tbo creek and Irainage from Martin's, Tho drainag* was an inconvenience to MjElatobfoii .

Albert Ireland, next called, knew tbo property of the plaintiff, am worked there ten or eleven years ago He knew the blind crook which com raenced at the boundary with Martin'i property, During the time that wit ness was thore,tuere was water in tin creek, At 4,45 the Court adjourned til 10 a.m. ou Wednesday, M A STERTON .-WEDNESDAY. On resuming this morning Mi Beard called a native MamheraMaaki (Mr Frazi acting as interpreter) win said he knew tho land of Mr Blatoh ford, and also that of Mr Martin sinci his childhood, in 1855 he was one o the tribal owners and knew the gull] in question, Before ten years ago the only linio that water was in tha gully was whentherowas a heavy rain Tho spriuga were in tho busk that fe< the swamp, the gully extended to tin swamp but the water never broki through into the gully unless then was a flood, There was a ri'lgo a the head of the gully inside sectioi No 12 that kept the swamp wate back, Since tho drains were cut then has been a constant (low of water to the Kopuarunga river, Witness neve knew the Ruainahnnga, a river ti affect the swamp. By Mr Pown ill: The witness sail he knew more about tho land mid tin effect of the rivers (hero than an; engineer. He had not lived there fu : years, but was constantly going ove a road un part of this loud to anolhc district, This closed plaintiff's case. For the defence, Mr Pownall, it opening, asked His Honor to re;ervi iho question whether they wco nnl being sued for damages for wiii"h un other party was liable. He would, hi thought be able to prove that frotr the swamp io the river there was t natural water course through Mi B atchford's land, aud that there hat alwajs been a bog at the lower end He would also show that tho surface water was increasing every year, besides, tho drains practically did not couduct the water complained of, Charles Mabey, deposed: Had known the locality for over twenty years, and had scon the water running in winter titno in tho blind creek foi three years in succession 30 yean ajo. He wnß on the ground prior tc Mr Blatchford being iliere. Ho had also seen tho wator running in spring, A year ago ho bad gone to plaintiffs house; it was in harvest time, and he did not then seo any water in the creok. There i 6 no more water or the property now than there was before plaintiff came there, Albert Martin, defendant, statet that he had occupied the sections foi thirteen or fourteen years, They were swampy, The water came from sections higher up, crossed his land and went through plaintiffs, When he first came there, there was flax all the way to tbo Kopuaianga and the land abovo was a white pint swamp. The water went intc tho creek before ho cut the drains, There was a natural course right through plaintiffs property and it was always running, except in very dry weather. Tho "Devil's Hole' was about two chains long and four oi five yards wide. Ho cut certain draini and cleared out tho watercourse, deep eningrit, but did notleive the old course, did not think he increased tin volume of the water. Tha wbolo o: the water from MoLachlan's lam oame on to that of witness' and hi endeavoured to concentrnto tht channel. There was no mon water in the creek when ho left tht property than there was when lit went there. Tho land on Blatchford'i was more boggy now, because he did not burn the flax as formerly. Thi water had no other outlot oxcepl through plaintiff's lanb the water dit not appear to have increased since tin cuttings of the drains, Tbevolumi of water was larger now that when hi wont to the locality. The Kuama buuga wai gradually oneroaching oi all the land there, The drain did no have tho effect of taking more wate: from the swamp, only to stop it spreading over the land, The drain drained only in the immediat vicinity of where they were cut, the; have not drained five acres, and since he found Iboy woro doing si Hi tie good, he allowed them to fill up they did not affect the" devil's bole. 1 Plaintiff did not make any com plaints till some years after b ] had cut the drains. They wer ' cut boforo he deopened tho oh water course some eight years ago He bad done all that he could t ' suit plaintifi's convenience in reapec t of cloaning the water course. Plain till neverdid anything himself to cleat the croek. Plaintiff suggested t lower tho cteek near tho boundary ut | ' to the' Devils Hole.' When he left th ! property tho water had taken itsoli course. There is a well defined fa! into tho Kopuranga River if i { was cleaned out properly. So for a j witness knew, the ouly catiso of com , plaint is, that he had not cleaned th ' creek all the way through to th t river. The crossing was always we 3 in winter, for the laet nine or te 5 years ho had never seen it dry, oithi j before or after the drains wero cu { Did not think be had done plaintil . any damage. e The Court thon adjourned forlunc!