SUPREME COURT.

Dominion, Volume 1, Issue 257, 23 July 1908, Page 2

SUPREME COURT.

FULL COURT. • CLAIM FOR COMPENSATION. ' HAWERA ELECTRIC COMPANY. LTD.. v. CORPORATION OF ELTHAM. ARGUMENT ON QUESTIONS OF LAW.. The hearing of argument with ' /respect to the special case of the Haw-era County Electric Company, Ltd. (claimants) v. the Borough of Eltham "(respondents)-was continued before His Honouri the Chief Justice (Sir Robert Stout), and their Honours; Justices AYilliams, Cooper,-and Chapman yesterday. ; Mr. C. P. Skerrett, K.C., with him Mr. H. H. Ostler (instructed by Mr. R. G. Sellar as representing Mr; H. Halliwell, of Hawera) appeared for the Hawera County Electric Company, Ltd., and v Dr. J. G. Findlay, K;C. (Attorney-General), with him Mr. T. F. Martin, appeared for the Eltham Borough Council.-' •. -' • : '' 1 • ' The facts in this case were, briefly, as follow: —Under statutory ■ authority the Company constructed dams and erected electrical works on the Waingongoro'Stream. Tho pow-ers-given to the Company were expressed to bo without prejudice to the Municipal Corporations Act, 1000, or any amendments; The Hawera County Council gave its consent to the construction ; and ' use by the Company of a tunnel underneath the Normanby Road. Under the powers contained in the Municipal Corporations Act, 1900, tho Borough Council erected a reservoir and water works higher up the stream, drawing water to' supply its works from the stream. Tho Company claimed'that'the erection of; the ■'water, works would so diminish the flow of water as to leave insufficient water in the stream for their purposes, and they lodged a claim for compensation. The Court of Compensation was unable by a majority to coma to-any decision, and, upon the second hearing, tho parties agreed to state a case for the'opinion of the Full Court.. ' ... Tho questions' submitted for consideration wero as follow: — (1) On the assumption that tho construction of the borough water, works , had injuriously affected the .Company's rights, wero the Company precluded.ftoin claiming compensation by reason of the . provision in their Act, that their rights ' were to be without prejudice to the Municipal Corporations Act, 1900?; (2) Had the Company a legal right to construct the tunnel . under , tho . Nor- ' ' manby Road? , v % (3) If notj could the Borough establish tho illegality in reduction-on the Company's, claim for compensation? ■ ' ... Mr. Martin, who followed tho AttorneyGeneral (Dr. ■ Findlay), on - behalf ■• of the Borough Council, submitted that tho Hawera Electrio Lighting Act, 1902, operated- to givo tho Company only a license to take tho water, and hot any estate or interest in land. Tho Municipal Corporations Act provided that compensation should be given to any persons having any estate or interest in land injuriously' affected; therefore if the Company had no interest in land it had no right to compensation. Tho Borough also challongo'd . tho right of the County Council to authorise the construction of the' tuu'ncl under tho .Normanby Road.. Mr. Skerrett, on behalf of the claimants, contended as follows:— (1) That the right., granted by Statute, to construct and maintain a reservoir for tho purpose ■ of the Company's works was prior in date 'to, and took priority, over tho right of tho Borough subsequently to establish water works in the bed of tho same stream without paying.compensation for any injury to tho Company, - otherwisd tho statutory powers given to the Company were assailccl because all tho water might bo subsequently' taken away by ajiy local body without :.eomiwnsation.

(2) That the Company were authorised tol construct a tunnel under thejjublic road by virtue of section 3 of . the Bfawera County JLlcctric Lighting Act, 1902, and that, if they * were not, then they were so entitled to con-, struct such tunnel bc-causo they had the written permission and authority of the County mr' lv ' lo lac ' con ' ;ro l over the road.) .w) -That tho Company had an estate or i <>" c CS }' "t ' , w 'thin the meaning of section jo or the Municipal Corporations Act, because they had the right- to construct a dam in tho bed of the river, aird they had their works adjoining the . bed of tho river to which I statutory riparian rights were attached. [ Tlw Court intimated .that it would taka timo to consider its judgment. IN CHAMBERS. ' VVORDER OF PENDING CASES. ' ' ) Sitting in Chambers yesterday their Hon*. \j ours Justices Cooper .and Chapman made the following fixtures:—.',', Friday, July, 24.—TSmith and another, v. - WollingtoirCity Council (claim for compensation). ... . -, ...'.' ' - , '; Saturday,. July ' 25.—Hutchison- v. B'enge. 1 Tuesday, July 28.—Doyle ,v. Wellington - United Furniture Trade Union, of .WorkersMitchell v. Harkness; Turnbiill v. Davidson. ' . Wednesday, July 29.—Howell v. Atkinson (in Banco); Ross v. Frain; Princo v. Soiuer- ' ville. . . ' Thursday, July 3P-—M'Kehzio v." Mansorij Owen v. Trickett; J. ; ,Gee v. .Williams', and. i Smith and another: v. Wyett (in Banco) Ames v. Milsom. ./' Z Friday, July 31—Wellington ' Fruit • pariy v. Taylor, (in' Banco); Moncrieff ;v. : j M'Gregor. . ' I Saturday, August 1.-—lsaac v. Ludwig..', • Monday, August 3.—Schmidt -v. Nathan ' and Company and another; Bayljss v. Wel r . Jipgton City Council (claim for compensation). . .'■ . Tuesday, August 4.—Dunn v. Lyons.., Wednesday, August s.—M'Eldowney v<"- j Thompson; Douglas v. Faulkiuer. Thursday, August 6.—Maguire and another • • v. Wilson. Friday, August .7.—Undefended divoroa * cases.; .'. '. j...- . r . v ; Saturday, August- B.— y..- i liarley. : : ... ! ; i.Monday,. August 10. —Benton, x, Jensottr and-another, (claim-for compensation).' Tuesday,! August. 11.—Martin-and' anotherr v. Holmderi. . Thursday, August 13.—Public .Trustee v. : Petono Borough- Council • (claim, for - compon-- " satiouV ... . t ..... Friday. August 14.'—Giesen v;- . Monday, August 17.—Criminal iSittings.' "* i ' Tuesday, August 18.—Parker Wednesday,' August-19.—Rhodes's Trustees \ v. Minister for... Public Works (claim -for ' compensation); Hall and Bowden v. Minister, for Ilailways. (claim for compensation). . Thursday, August, 20.—Wilbcrfoss .and Smith r. Minister for Public Works (claim I for compensation).