ANOTHER WATER CASE.

Press, Volume XLIV, Issue 6902, 7 November 1887, Page 4

ANOTHER WATER CASE.

STANTON V EYRETON ROAD BOARD,

At the Kaiapoi Resident Magistrate. Court, on Friday last, Mr C. Whitefo-xi, R.M., delivered judgment in the abovs case, which was a claim by plaintlu" for £100 damages, alleged to have been caused to his land by the action of the Hoard. The following is the text of Mr Whitefoord's judgment :—" The plaintiff claims the sum of £100 damages caused to him by 'the defendants unlawfully diverting water, by which the land and crops oi plaintiff were injured. At the hearing M« Holmes applied for leave to make certain amendments, which would make the plaint rend thus—"By the negligent and improper action of the-said Board In making certain works, Sec." lam of opinion that the amendment asked for could be grantcl, as section 80 of tho Resident Masis Crate's Act is the same wording as section 57 ot 19 and 20 Victoria chap. 108, which is the English County Court Act. [See Davis* County Court Practice, page 281, and Muller v Scott 42 L.J., Q. 8., 234.] The defendant waa not taken by surprise, and -."owing the real issue to he decided was therefore not prejudiced. It will also be noticed that tbe words of section SO are as regards the amendment applied for mandatory rather, than discretionary. I find the facts of the case to be that plain tiff had occupied the section for thirty years, and knew the country before the fences were erected, &c. That certain water drained from the natural fall of the country at Neave's into the Kakanui creek and other water carried by ditches. „&, down the Cemetery rood acros*. Ohoka road, and that Ohoka road w;*.*j not formed at this time (thirty years ago*'. Three colverts were placed under Ohoka road twenty-five years ago, and the Ohoka rond was raised by the present Board, and the size of the ctdverts wor. diminished. I Had that the land occupied by plaintiff is higher than land on opposite side of Ohoka road and that nine or ten years ago culverts were taken up at certain points aud pipes Ift iv diameter put in instead. Certain alterations were made as to drainage at Neare a, and the natural drainage was altered and water instead of going down Kakauui went down tho fslana road and then blocked up the Ohoka'rood and not having any outlet sufficient to carry it a*W blocked up on plaintiffs land, ih« fllliug up at point F in plan « admitted by defendant' and also that as point C the culvert was token up and pipe put in one foot-diameter as well as,the drain in the north side cut by the Board , since 1886. I find the blocking up of rood at F and taking out of pipes prevented the natural flow of water into ___i__fl-l Creek, it back towards Neave*-, and thence it found its way onto plaintias land by reason of insufficient culvert. under Ohoka road, and that the floodi-g of plaintiff- land was in 183 a and 1886. Works were done on Eyre embankment up to two years ago wblcn had the effect of sending down water on plaintiff's land which would not otherwise have gone on the Island road an* on his farm. There was a distinct aw known watercourse near Neave's wnicfl took flood-Water into Kaikauut Cree-v . Tho watercourse -Was filled up by tho Boa** - Board, which caused the water to nw down Middle Island road, aud «o on to plaintiff's land owing to there being n° proper outlet at Ohoka road. I also ftn» that the embankment subsidised by the Board two years ago turned Eyre wfttw into the north branch of the Waimakariri," - but that the evidence shows that the stoff* water: in 1886 accamulated to such oa extent that when the flood-water came « could not get away through the culverts. and creeks, and that the damage to tn- •' plaintiff in 1880 was, partly due to one cause and partly due to the other. Frop* the height uf the flood in 1886 and quantity of rainfall it is impossible to say wbfcn caused the injury or if the same injuff would not have been inflicted / .lf drains culverts and creeks were in original .taw* . I think that the acts of the Board «c& not in themselves unlawful but negug*"* and improper. [Cases quoted for severs* -~-, points raised:—Ruck v. WilHanm, 27 Ij-ytf Ett,3sp., L.R. 3 Appeal Cases, 4-0. Gcd&vr Case; Dawson v ICegina, N.Z. Reports* VoL 3; Williams v Regina, N.Z. Report* Vol, 1, Supreme Court 217; Miller vl'aaranga County Council. 5 Appeal Cases W. April, _887."J Judgment for the plaintur for £41 15s, made up in the following way:—Flood In 1885, damages to crop and.. land. £7lOs: potatoes. £18; loss on crop* not being able to put them in in proper . time, £3; wheat, three acres, at _5_ att acre, £Ji 15s.