FLOODING OF A ROAD.

Auckland Star, Volume XLIII, Issue 180, 29 July 1912, Page 6

FLOODING OF A ROAD.

DAMAGES AGAINST TH-E CITT - COUNCIL. i 1 ■ • The case, CHiphant and Oliphant vet- * bob the Oity Council, a claim Tfor £200 ' (or alternatively £270), was concluded « before Mr. C- C. Kettle, at the ! Magistrate's Court this morning. Mr. Prendergast appeared for the plaintiffs, and' Mr. Stanton (of Mr. T. Cotter's office) for the City ConncH. The claim i was for los 3 sustained by the plaintiffs i "through the permanent flooding of Falls i Road, Waitakere, by the Council's i waterworks extension scheme, the road i being the best means of access to their i land in the neighbourhood. In the ear- ; lier stages of the hearing Mr. Stanton i raised a number of nonsuit points, "but i after hearing lengthy argument, Mr. j Kettle refused the nonsuit asked for. i H. Hunro Wilson, the engineer respon- ( sible for the carrying out of the -water- ; works extension scheme, called by the i defendant, said that the flooding of the : road was absolutely unavoidable. The dam had been placed in the only ■ practicable position, and in order to , Impound the required amount of water ; behind it the water level had to be raised so as to flood the road to a certain depth. James Carlaw, -waterworks engineer to the City Council, gave corroborative evidence. He concurred with the previous witness in preferring the roundabout and unobstructed route to plaintiffs' property for the reason that H was much less steep than the road now flooded. This concluded the case lor the defence. Mr. Stanton remarked that he had consulted the legal authorities to which •Mr. Kettle had previously referred him. He still contended that the Empowering Bill gave the Council power to flood any portion of the area mentioned in that bill, road? included. The case was an important one, an 3. the Council must see it out to the end. Mr. Kettle said thai he saw no reason for reserving his decision. He had gone carefully into the difficult legal questions involved, and while the authorities he &ad consulted "did not leave him absolutely satisfied on ail points, he yet felt that the burden of authority supported him in his decision. The Act which gave -tie City Council power to impound the whole of the headwaters of the Waitakere Stream, did not give it express power to stop the King's highway which crossed the catchment area above the dam. There was evidence that the highway had been regularly used for a number of years by settlers and others- Tire Empowering Bill did not give express power to block roads within the area, and be held that in cases where roads "were to be interfered with the authority must be perfectly clear and explicit. A second point upon which the authorities were to Wine extent \n conflict was the plaintiffs' claim for particular damages, other tiian those sustained by the general public, as a result of toe dosing of the road. He would hold that they had established particular damages, though &c amount of those damages was not easy to determine en the evidence before him. However, he thought that £100 would be a reasonable assessment, Judgment would be for the plaintiffs for that amount..