(From the Otago Daily Times, Saturday, 14th August.)
The ease of Aitchison v. The Waitaki County Council, which has just been heard before Mr. Justice Williams, is of considerable interest to local governing bodies. This was an appeal from the decision of the Resident Magistrate at Oamaru. The question at issue was substantially this: J\re county councils liable for the damage done by the flooding of natural watercourses or streams, not being navigable, within the county boundaries? The plaintiff was owner of land which had been damaged by the overflow of a stream in the County of Waitaki. For this damage he sought to render the defendants liable. The Resident Magistrate decided against him, and an appeal was made to the Supreme Court, At the outset it is obvious that the question raises a somewhat important issue. If every landowner who happens to be flooded out by the caprice of the weather has a right to demand compensation from the council of his county for the loss he has sustained, clearly the financial responsibilities of these bodies have received an alarming extension. The argument for the plaintiff on appeal rested mainly on the 165th and 106th sections of “ The Public Works Act, 187 G.” The former of these two sections defines a drain to he “ every passage or channel on or under ground through which water flows, except a navigable river. ” A public drain is defined thus : —“ Any such drain made by the Government, or by any public board or commissioners, before the passing of this Act, or made or declared to be a public drain under this Act, or made upon, above, or under any road or other land vested in the Crown ; and every natural watercourse, stream, and river not navigable is a public drain within the meaning of this Act.” The next section provides that all “ public drains” shall be “ under the control of and shall be constructed and repaired by” the County Councils. Mr. Stout, for the plaintiff (appellant), contended that , the words of the Act were unequivocal and conclusive. There was a duty imposed by the Act upon County Councils—viz., the keeping in repair of “public drains,” which included natural watercourses. They were bound to provide means foxcarrying off storm-water, and if they did not do so were liable for damage done. Mr. Smith for the defendants, (respondents), urged that such a construction would saddle his clients with a liability which was “ absurd and oppressive.” The only responsibility which- it was intended to confer upon the defendants related to “ those di’ains which they as a public body had constructed.” His Honor Judge Williams, in affirming the decision of the Court below, said that the words “construct and repair” were incapable of application to the management of natural watercourses, and that the liability of the Council under the IGGth section must be taken to refer specifically to artificial drains. There can be hardly a doubt that this is the only satisfactory explanation of the words of the Act. It seems preposterous to suppose for a moment that it was the intention of the Legislature to render liable those who, under the circumstances of this case, cannot either directly or indirectly be considered contributors to the loss of the individual. If, as his Honor said, the Council in any way interfered with the natural watercourse the whole question would assume a different aspect. But the facts were uncontested, and no attempt was made to seek a x’emedy outside the provisions of the two sections quoted, the meaning and intent of which may be stated thus : —The 105th section docs no more, as far as concerns the present case, than specify “ natural watercourses ” as being one class of public drains. Several other classes arc mentioned, viz., those made by the Government prior to the Act ; those specially so declared, &c. The next section is then capable of being construed intelligibly. The words “under the control of ” are meant to apply to “natural watercourses,” by which it is probably intended to bring these watercourses under the jurisdiction of the councils ; whilst the words “ construct and repair,” being utterly senseless if the plaintiff’s contention were correct, naturally connect themselves with those words in the 105th section which complete the definition of a public drain ; that is to say, speaking in general terms, those of artificial construction.
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