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THE PRESTATYN LIME KILN CASE.

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THE PRESTATYN LIME KILN CASE. THE ADJOURNED HEARING. AMUSING CROSS-EXAMINATION JUDGMENT DEFERRED. On Friday, at the St. Asaph. County Court, tie Honour Judge Mops continued the hearing of the Prestatyn Lime Kims case. It was an action in which Mr W. Horsfall, Prestatyn, sought for an injunction against Measrs Harrison and Cliff, owners of quarries and time kilns at Prestatyn, to restrain tacm from using the kilns for lime burnyig, and claiming damages ior ^uttering and deprecia- tion of property eanted, by tho burning opera- tions. Mr Ellis Jones Griffith, M.P. 'instructed by Messrs Hughes and Gilascoync-) appeared lor ohe plaintiff, and Mr Ralpn. Bankes (instructed by Mr A. Lewis Jones) represented vhe do- fendants. THE CASE FOR THE PLAINTIFF. The Judge having read wetf1 the evidence given at the Rhyl court. i iie Rev. Francis Jewei.1, of Greymount, Prestatyn, a witness fcr plaintiff, was recalled and examined with reference to an auction saie ca August 17th, at which some property in the vicinity oc tho limekilns was submitted for competition. Twenty lots were put up, 00 said, and only one was sold- Mr Bankes: That may be duo to a thousand' causes. The Judge: I don't know that evidence of what happens to other houses is relevant to this case- Mr Banker: I agree with you. 'Hlo6 Judge: It might be relevant in show- ÏI1 whether there was a general nuisance or not. Mr Bankes: I admit I can't shut out such evidence entirely, but what I am here to meet is an action for damage to plaintiff's housg by offensive smoke and smell from the kilns. t rank Jewell, auctioneer and valuer, resid- ing with his father (the last-named witness), stated that he had lived near the kilns for close upon 20 years- Until the kilns were re- started by Messrs Goulding and Carlyle in 1903 or 1904 ho did not think there was any burning there once a year. Since the restart- ing of the kilns by Messrs Goulding and Co-, the fumes had been extremely offensive- He was a perfectly healthy man as far as his chest was concerned, but be could not pass by with- out coughing, and he had frequently to get up at nig-ht because of tho irrita.tion of his throat by the fumes. He ectild only describe the smoke as most offensive—just as if water had boiled over on to a fire- Tho fufl effect of the emoke and fumes was felt at Greymount— which was more to the c-ast of the kilns than pla.if.tifF's rosicknoo--wh.enever the wind blew in p southerly direction. If there was no nuis- ance, plaintiff's house oug-ht to let at from J660 ou -Z to 1;70 a year; but if lime-burning was to be fc-ntinuous there, he did not think the place •ould be let at all- Under present circumstances C40 a year would be a very reasonable price. He was perfectly sure the lime-burning must interfere with the enjoyment of the house even by any person of ordinary health. urosj-exa-mined': I suggest to you that not t word ol complaint waa said until July of Ins year?—I don't quite agree. This lime- burning was never seriously regarded as a filing likely to be continued. Do you remember Goulding- and Co. burning lime there?—I believe they burnt a little. When they took the concern over the kilud er. derelict. Re-examined: The petition which witness* fathe- signed against the lime-burning was presented to the Prestatyn Cotinoil, in April 1906. IN THE TIME OF MOSES. Edward William Edwards, manager of Messrs Kneesbaw, Lupton and Oo's. quarries at Llanddul/as, said defendants' kilns were of a type that was in use in Moses* time (Iaugh- t-e r ° Mr Bankes: Are you speaking froia personal ex pericnoc -Ye5 (roars of laughter). At any rare they are of a very old type. There are no chimneys, and nothing to carry off the fumes. Witness added that he had had 25 '"eaI'" ex- perience of lime kilns, and that experience had taught him that Chere was no comfort any- where near a chimneyless kiln, and that a good de«i of swearing was to be heard in its neigh- bollrhood (loud laughter)- Cross-examined': Defendants' kilns were the most antiquated he bad ever seen, and lie did not know of any other lime-burning place in Flintshire where kilns were witnout chim- neys. William Beeeley, of Brynsiriol, on the hill- side. said there was never a kiln lighted but he Buffered very badly from the smoke and the fumes, the kilns being right underneath his OO. There were many times when he was unable to see the plaintiff's house at all owing to the smoke enveloping it. The colour of the smoke was a nasty dark brown and its stmell was very bad incited—bad enough to waken him out of his sleep in fact (laughter). Cross-examined: The house witness occupied was specially buiLt for him nearly six years a.go under an arrangement, and he bought it at the recent eale already referred to. Mr Bankes: Thon that sale was not abor- ti vc- The Judge: I don't see why you shoul,d, buy at a public auction a house specially built for you by arrangement six years ago. Ralph Cusack, a retired" analyst, residing at Brightholroe, on the hillside at Prestatyn, said he came to Prestatyn in June, 1906, and his house overlooked plaintiff's, being on a level with the chimneys. He had made a thorough study of the fumes from defendants' kilns, arnd the result of his investigations was that they were very harmful to vegetation And tended to tower one's vitality. There was a considerable sulphurous smell about the fumes, and it was certainly not heal/thy to be amongst them for hours at a time. Do you experience a slightly eimilar smell when you go up Snowdon ?-I have never been up Snowdon. Well, you should go (laughter). Havo you experienced a similar smell on any mountain? -Yei. on mountains that have been of a volcanic character. Mr Griffith: The distance between plaintiff's house and' the kilns is not great enough for these dangerous gases to become sufficiently diffused as to be perfectly harmless by the time they reach plaintiff's house ?—Decidedly not; they must have a poisonous effect. At a dis- tance of a quarter of a mile I should ga- they would be practically harmless. PETITIONS TO THE PRESTATYN COUNCIL. John Hughes. town olerk of Prestatyn, said he was a native of the town, and prior to and Co 'li operations in 1903 °r u i -i0 no* any lime-burning at the kilns in question for a considerable num- ber of years- Witness said he had often noticed the smoke oorpp.-ained of by plaintiff, and he remembered oertain petit-tons on the question being sent to the Prestatyn Council. Cross-examined: There were two petitions with ten- signature, 7 against the liroe-burnirur, and one petition with 105 signatures on the other side; but the Council did not take any action. He remembered' tho kilns being burnt when he was a boy. and there was a good deal inoro trad-e done then than now- Hugh Hughes, an analytical and consulting onernist, residing at Connah's Quay, was next oalle<j and admitted at once that he had not hu'l_ anT-y practical acquaintance with limo kilns- Mr Bankes: Do you know Buxton, one of the most famous health resorts in England?- Yes. Are not there lime kilns all around there? — iy CLQ Ili-A Adamson, another hillside resident of Prestatyn, deposed that she had seen plaintiff's house enveloped in smoke from defendant's kilns. Sometimes the smell was like that of ■ewer gas, and at other times of a smokey na- ture. P.C. John Cheney, Prestatyn, stated that on the restarting of the kilns some time ago plain- tiff made a complaint to him. and after goin^ and seeing things for hiirse'f he made a caml plaint to defendant's manager. Ho did not think any harm could befall a strong man from the smoke ^and fumes that reached plaintiff's house, but he certainly would not like to live in the vicinrty „uCrr°Sfh1XaT1ned: Khe pu°°p!c roanaged to live T'fc"' at D/scrth, where lime-burning was carried on under conditions and with effects similar to those at Prestatyn Lime-burning was one of the industries of the district. Re-examined The kilns, a.t Dyserth were rather above the houses, and he believed anthracite coat was burnt there. This concluded the evidence for the plaint-iff THE DEFENCE. Mr Bankes opened his case by at once calling Thomas Hughes, aged 79 years, a roadman in the employ of the Prestatyn Council. who said he rcmombered the lime kilns being worked when ho was a boy—they were largely used by farmers. Cress-examined: In thote days there was a lain bdongin pretty well to every estate. He had not seen defendant's kilns .smoking in an objectionah:c way lately, although he had seen iini-j carted away from them. Sarah Elizabeth Hunt, widow of (be Sate Edmund Hunt. Prestatyn, said her husband was the icti-ve of the Manor HilL Quarries for a great number of yen us., and she produced books retting to tho biwuness done there by him, also a royalty book showing the amounts of time- stone and limo on which royalty had been paid since 1371. Her personal knowledge of the works extended over 30 years. You knew your husband some years before you married him ?-Oh. yes. Wo were married hi 1876. and lie ILI carrying on the business somo years before then. Mr Bankes at this stage handed in a.n extract from the royalty book showing the output of the quarries for several years, during which period the greatest quantity of lime burnt in one year was 1098 tons and tho least 17 tons. Mrs Ifunt continuing, said that from 1876 at I any rate to 1894 there was continual lime burn- in-g, a.nd during that period she never heard anyone bomplain abo-at it. Her husband died in 1898. Cross-examined: They burnt no lime after 1894. but still wont on raising stone for building purposes. The royalty was 2d per ton on build- ing ctgriv, and 3d per ton on Lime. There was no lime burning in 1880 or 1881. nor from November 18th, 1887. tilj May 11th, 1889. She be.ieved. there was only one kiln being worked in thevv days She couid not say how many tonu of lime 6; kiln produced at one burning. Dy the Judge: They could sell to whoever they i'iked. Their lease was surrendered in 1904. John-Morgan, Royal Oak, Prastatyn, stated tha-t he had known the, Manor Hill Quarries all the 65 years of his life, and he carried lime from there when he was a boy. Cross-examined: Tho emoko and fumca from the kune now; we.re juist of the t-a me natwre as those of manji years ago, only there was double tho amount in former days. Re-examined: He never hea-rd of people com- pJaining about tho kiltis in the old days. There were simiLa.r quarries at Dyierth, and tho limo burning there was oar.ried an under the &ame conditions. A DEFENDANT'S EVIDENCE. Thomas Harruson. one of the defendant, f-a-id the firm took the quarries over after Met-srs Goulding and Carlyle, acquiring them out of Chancery through a roociver. According to the deed of, partnership, his capita! in the concern was £ 750, ana that of his partner £ 500. They employed 6ev: hands a fortnight ago, but not quite as many last week. They wero bound by tho lcaae toploy four. The leaae was for 21 N-eari, anct- there wore about 19 years yet to run. During the last 19 months the kilns had be.en used, on an average, every six weeks—about 14 time$ajlo^pther. He last used the big kiln at the beginning of June last. It was about ,in 200 yards a way from plaintiff's houto aNd the tittle kiin wati over 300 yards away. The kilns at Dyswth were eianilar to his own in con- struction and working, and there were houses within 50 yards of them—much nearer than was the case at Prestatyn. Cross-examined: There were homees above and below the kilns at Dyeerth. The fuel used at Dysorth was a mixture of coal and e'.aclc. Ho u.sed coaly without aliack, for which he paid 125 4d per ton. Ho had turned out 25 tons of time at a single burning. His partner. Mr Clegg, lived in Liverpool. Tho smoke from the kilng WaG nearer white than brown, and the smell w'as nott offeneavo to him, although he was amongst the gmoko constantly. He should not say the. smoko and fumeis wero never offensive, but he did not think plaintiff had realty any reason to complain.. One could not live in a rose in this world-(lau.ghtor)-and he was eurpriped at plaintiff complaining. He had seen kilns without chimneys at Proton, and houses were feimply studded around them. Tho Judge: Not in the middle of proud Pres- ton? (la-ughter).—Yes, in the middle of proud Prestorfc(mor^ laughter). Mr Cftiffith* Perhaps that is why it is proud (laughter). Defendant: Any way, I mean right in the centre y of preston. Under further croes- exaimination, defendant paid he euppoecd there would always be a few faddists in every town. He had been burning Lime on three occasions fin/ce Ute- commencomenit of this action in the last court at Rhyl. He had to do eo, because he had a contract with the Railway Company which he ha<r to carry out. -NO COMPLAINTS IN THE OLD DAYS" Edward Dowel'l, AI It Farm, Prestatyn. Raid ] he newidod about 40 yards away from the kilns, which had been W'(!od for !ime burnLng for .nany years to his knowledge. His father had worked there for Mr Hunt, a.nd he had worked 'IK re for Messrs Gou'ding and Carlyle, and he was also employed by defendants. If anythi":p. the operations now were carried out a little better than was the case .in Mr Hunt's time, better coal being used for one thing. Ho heard no cotn- piaintft in the old days about the &moke. a.nd he did not mind it himself, nor did it scorn objectiiona-bie to his brother, who lived next door to p aunt iff. He remembered the Rc-v. Mr Newall, uow in South Wales, and the Rev. Mr Jones, the late vicar of G waenysgor-both of them sufferers from asthma frequenting tho vicinity of the kilns. Witness addod that he had not heard any- body but plaintiff complaining about the kilns. Mr Griffith: Did it do the Vicar of Gwae-n- ypgor and this niiniister good pliysi-Cally or spiritually? (laughter).—I know they used to go there. Did the Vicar go there in full canonicals? (laughter).—No. Mr Bankes: We don't suggest that he went there in hiE- surplice. Witness: He used to bring the school children through the smoke (Laughter). Mr Bankes: Thalt would bo before the passing of the present Education Act (more laughter). Witness: He believed it was good for one's health, and ho used to take all the children through the- smoke. Mr Griffith: Whether they were well or ill?- They all went through the smoke. Tiie vioar is not alive now?-No. I should' think not. Are any of tho ohildren alive Wow?—Sonne of them are- How old nro you ?—I am 37. Then you are one otf tho children of the fog (laughter)-—Oh, no. Why didn't you hwe these, pleasure trips?— I waa living close t6 the kilrus, as I do now. Oh, I see, you have had tho pleasure alllyour life (laughter). And you say there are still soma living whom the late vicar used to take through the emoko ? -There are full-grown men about now whom the vicar toea to take through the smoke. They wero proud of it (laughter). It was not one of the moral lessons ho taught to beware of the emoke and fumes ?-No. Further c.rdlsa-exauiinedi, witness said' that the better the coal used tor lime-burning the less the emoke. They could not stand above the kilns five minutea-they would be blind drtink-(I.oud laughter)—with South Wales coal. Do you 6pea.k from experience? (laughter).— I have tried it in Mr Hunt's time. South Wales coal is rcall), too strong for lime kilns. Witney added that -be saw no harm at all in the smoke from defendants' kilns. "BC-L-atise yott are paid to work in it," ob- served jilr Griffith. Witaesc?_ further stated that there was really no smell in the smoke. The smell at one time noticeable in the onioko from the big kiln was due to damphesis. He denied that the smoke from the kiln now in u&o reached plaintiff's house- Thomas Johnson Humphreys, a Dyse<rtth Quarry employee, said that as much as 40 tons of lime per wpek were burnt at the quarries where he was engaged. The burning wiaa dono in the same way as at defend'ants' kilns and the smoke was similar, but no complaint was made about it, although there were houses above and below the kilns, within 30 yards- Cross-examined: They did not use anthracite coal at his plaoe—it was too dear. Anthracite coal did not produce as muoh smoke as other ooaJ, but more sulphur. Robert John Salusbury, Rook Cottage, Pres- tatyn. stated that ho x-esidled between defend- ants' two kilns, yet the smoke did not interfere with the enjoyment of his home. Have you any family ?—Yes, a wife and one child. "We have visitors, and they enjoy it," added witness. Mr Griffith: \Vhat? The smoke'.—Oh, no; the house (laughter). What is tJhe natulro of tho smoke?—Brownish in colour.with .a little smell- But I have not found it even make nie oougih. and it depends very much tenon the wind whether it surrounds plaintiff's hoiiflo. _n- By the Judge: Witness had a garden, but did not grow anything in it except green grass (laugbtcir)- MEDICAL OFFICER'S TESTIMONY. Albert Eyton [Aoyd. M.D.. meu'ical officer of health to the Rhyl Counoil, said' he had been in activo practice in the district since 1872, and had noticed the limo-burning from time to time, but he could not recall a single instance of complaint about it. Ho a coop tod the analyis of Mr Cut as corroct, but held that the effects of the smoke depended urton tlhe action of tho air. He should say it was very consider- ably diluted by tho time it reaohed plaintiff's house, and he hardly thought there would be any risk to a person's health at (hat distance from tho kilns. (There was a considerable amount of lime-bunning in the vicinity of Dy- sorth, but not as rtiuch a-s in years gone by. People subject to bronchitis or ticthilua might be more affected by tho lime-burning than people in ordinary health. Mr Griffith: Is, it not a cure for such people? -I think not. We were assured at the last court that it was--It was by a layman, then. "He was a preacher, although he may have been a layman on a mat,t-er like this a preaohor from a spiritual point of view, and a layman otherwise," was Mr Griffith's comment- Witnops, replying to the Judge, flaid he did not agree with the attitude of the lato Vicar of Gwaenysgor on this matter- It might have been his fad. Witney went en to say that the point was whether tho smoke reached the sufferer in a form to causo irritation. If a person firmly beliovod be mis suffering from the fumes lie should toil him to move to an- other houiso, because it would be impossible to get it out of tho powon's bead. Mr Griffith: Or his thToat (laughter)- If tl;&ce are fumes from tie kihus, would the tendency L)i- to make a mon cough?- That wou.¡1 depend on tho density. Of the fumes, not the man ? (It u t4L-r). Quite so. Would you like to live in plaintiff's house undor suoh conditions cus have been described ? —Not- if it wero true By Mr Bankes: People wero prone to exag- gerate a matter like tliiis because it got on their xruinid- Tho Judge: The plaintiff Bays "The fumes make my chest very pain/ul, and the smell is very disagreeable- My wifo is also vCory deli- cate and suffers from the fumes." If that is true, do you think the fumes can be dlanger-pus to health?—If the story is true, I think it would be very objectionable and probably in- jurious it would be inadvisable to live in suoh an atnuoaphere. Witness went on to sav that he was a fairly observant man, yet he had never seen brown smoke issuing from a time kiln. The colour was yellow or 8t.eam. Ho had nevor seen it carried 120 yards in a column of su-oh density as had been described by previous witnesses. With regard to the colour of the smoke, a good deal, of cotlrso depended! upon the time the kn had boen burning. SANITARY INSPECTOR FELT NO ILL- EFFECTS- Robert Lowe, sanitary inspector to tho R'hyl Council, said that on the occasion 0: his visit to defendants' quarries on Ootober 7th he stood over the kiln that was burning, and did not ex- perience any irritation, and only just a car- bonaceous amell. The colour of tho smoke was a steamy white, and was '>erhap« brown about tihe time the kiln was lighted; it seemed to disappear-at a distance of 120 yards- In the immediate locality there was as fine a privet hedge as any lie had 900n in more ehel- tered places in the district. Orosis-exatrfincd: It was not calm on the oc- casion of hid visit- A north-west wind was blowing and a storm came on while he was liberie. He stood near the kiln between five and ten minutes, and fedt no ill-effects at all. Ho had no idea how long the kiln had been burn- ing, but he presumed it was lighted during tho -week-end, Mr Bankes: It was lighted on tho Saturday. Witness admitted that a '\rivet thedge was one of the most hardy of His inspec- tion lasted about thrc>e-qua.titers of an hour. By tho Judge: He elhould say that in tho last atago of limo burning there WM nothing but fumes. He did not visit tihe time kilns for health or pleasure—(laughter)—but for duty. A. Lewis Jones, solicitor, having given for- mal evidence touching the production of tho royalty book, Mr Bankes add robed his Honour on behalf oi his clients and submitted that plaintiff's case had boon greatly exaggerated II., claim- ed for defendants a, prescriptive right to carry on tihe lime burning, and denied that any queatioo of abandlonmont had been proved- Def-andants had staked a considerable imtorost in what had been the industry of tihe locality froan time immemorial; and talcing all the cir- cumsbanoa3 into consideration, this aotion was a most oppressive one. Mr Griffith, in roply, dwelt upon the question off abandonment, and said it was (significant tihat Srom 1890 till 1894 thopo was lime burning only 18 times, and then came an absolute ces- at ion for ten years. When defendants camo on the scene the kilns were derelict and had to bo rebuilt, which m-aclv their undertaking a practically new industry. Defendants more- over had not taken even ordinary precautions for minimising the character of tifoe smoke and fumes. JUDGMENT DEFFRRED. The Judge, after stating bhat he would tile to see tho iteaao upon wtnich defendants hold the quarries, said lie thought thc.no was a nui- sance, and that the condition of things was sudh M to be prejudicial to the lioaltlh erf an ordinary poreoin oooupying pjaiotiff 's house. But before giving liiis judgnnont he Proposed to consider wheihor there had or had not boon an abaiwkwwne'nrt of common law right in con- nection witih the kilns.

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