LEGAL DEFINITION.

Auckland Star, Volume LXX, Issue 109, 11 May 1939, Page 15

LEGAL DEFINITION.

GULLY OR WATERCOURSE ? XEW LYXX BOROUGH CASE. Whether a gully through which water ran constituted a watercourse within the meaning of the Land Drainage Act was the point at issue in "a caso heard in the Magistrate's Court before Mr. J. Moiling. S.M.. nn April 20, and in this case the magistrate issued a reserved judgment yesterday afternoon. The case was one in whidi the New Lynn Borough Council ordered Annie Evetts, a property owner in the borough, to clear obstructions from the guJiy on her property, which the council alleged was a watercourse. The council stated that the work done by the defendant was not enough to comply with the Act. Mr. Haddow appeared for the council, and Mr. Noble for the defendant. In his judgment, the magistrate said that the onus of }>roof rested with the council. There were two questions ■—me. whether there was a watercourse, and the other, whether the defendant had failed to clear obstructions if such a watercourse. existed. He fwiid Jie in*j>eeted the gully at the bottom of which the water lay, and formed the opinion that such a watercourse as was alleged to be present by the informant council did not exist. The council contended that the whole bed of the gully was the watercourse because water flowed over it in tim»; of rain, or at loa*t of heavy rain, and that owners could be compelled to clear the gully for 10ft in terms of the section of the Act cited. "In my view it is extending the definition of watercourse beyond the meaning in the Act to .aive watercourse such a meaning," bis Worship added. '"The section refers to banks of a watercourse, but in this case there are no banks, the water merely flowing at random in no definite channel." The section required owners to carry out work of tv remedial not a constructive nature, which the digging of a drain would be. Deciding there was no watercourse, he found in favour of the defendant.