COMPENSATION COURT.

Evening Star, Issue 12764, 17 March 1906, Page 2

COMPENSATION COURT.

THE MOMONA CLAIMS. (Before J. P. Woodhouse, Esq., Arbitrator.) The following transpired after we wept to Press yesterday:— Mr John MacGregor, in opening his defence, on behalf of the Otakia Drainage Board in the case brought against them , by James Columb, said that, following the usual course, he proposed to reserve his remarks on the case for the claimants, as regards both the law and tho evidence, until all the evidence had been heard on both sides, and to confine himself to a more general outline of the case for the respondent Board. The claims for compensation were made under the Public, Works Act, not for damages at common law, and, thatbeing so, it followed that the claimantscould not question the legality of the Board's action in erecting and maintaining the dam in question, and therefore all the talk and all the evidence about sod-and-shovel engineering, the absence of professional advice, etc., was simply waste of time. The Court could not have failed to have noticed an important difference between tho claims made by tho Monona settlers and those of ,the School Commissioners and their tenant Moynihan. The former were made in respect of drainage arising from the construction of tiw dam from the beginning, whilst the other two were restricted to damage alleged to have beencaused by tho works erected in 1905. This seemed to show that the advisers of the two sets of claimants had acted upon different readings of tlo Act. This was not tho tima to argue tho question, however, and he contented himself with merely submitting that the correct view was that apparently taken by tho School Commissioners: that no claim could be sustained in respect of works constructed more than twelvu months prior to the making of the claim. What, tlwn, were the nature and extent of the works carried out within twelve months immediately preceding tha making of the claims? 'The Court had hefore it an agreement entered iuto by the Otakia Board and tho West Taieri Board, by which they agreed to carry out certain work at their joint expense." This work •was to comprise the cleaning out of Duck Creek , f rom the river to the cress ditch, the crorss ditch itself, and Moynihan's Creek to Millar's, road. This work was included ie' Bryant's contract, which also provided for the stuff taken out of the creeks and the ditch being used for raising the banks. Reid's contract included an addition to the height of the dam across the creek, and the construction of banks or wing walls upwards from tho dam, where the banking was so far away from the creek that the material had to be carted. The Otakia Board claimed that all this work was being carried out under the agreement between the two Boards. The plaiis and specifications were prepared by Mr Gouston, an engineer employed by the Boards jointly, and the West Taieri Board had paid their share of the expense <%f the work done, except the addition to the dam. In the plans and specifications Mr Corns ton provided for the addition of a foot to the height of the dam, but the Board departed from his plans, and it would .appear frcm the evidence of the man who did the work that- the addition made io the height in 1905 was only about sin or 6in, and that the total of the additions made since Moynihan's previous case in 1902 was under a foot. If the banking through Moynihan's land had been finished before the floods came on his property would have been fully protected. But- it would be shown from the levels that the addition made to the dam in 1905 could not dam back the flood waters ?o as to cause any additional damage, either on Moynihan's land or on Momona. Several legal questions would come up for discussion after the conclusion of the evidence. There was the question discussed by Mr Fmcr in his opening, as to whether the claims were restricted to damage arising within twelve months, whether the claims should not have been made against the two Boards, and whether Moynihan's proper remedy would not be by action for negligence in the carrying out of the work. The expert evidence would he mainly directed to showing that the extent to which the height of the dam was increased last year could not possibly have had any appreciable effect on the drainage of Momona, or appreciably increase the flow of water on Moynihan's land. The evidence already adduced in the case as to damages would, he thought, he very completely met, that before the Court, #eo far, being extremely slight. Members of the Board would first be called. James Thomas Gibson, chairman of the Otakia Drainage Board, .said that the Board had occasion to take control of the dam in 1900, which previous to that had been privately constructed on Sounness's land. Some slight maintenance to the dam was done between 1900 and 1902. In May, 1903, an additional six inches were put on to the dam. rlis own place, immediately adjacent to Momona, about two miles below Duck Creek, in 1904 was under water, and he believed it was escaping from Duck Creek, so he followed it up to see if the water was coming from any of the cross cut 3 from Duck Creek, bub found that was not the case. He continued that investigation towards Momona, and found the water was coming across his immediate neighbors' places on to his own property. Of course, he knew then, in 1905, where the tjulk of the water was coming from. Even after the ram in that year had ceased to fall the water on hjs property increased. The average depth of the water was over two feet on his place. In 1905 he found turnips on his property which had come from somewhere. He had heard of Mr Columb's loss of turnips. A letter was received from Robertson about the 1904 flood, and Moynihan waited on the Board complaining of the dam. That was on the 10th of October, 1904. Robertson and Moynihan both attended that meeting, objecting to the raising of the dam. Between the Ist of September, 1905, and until the New Year the river was uniformly high—he meant its height was considerably above a normal river. In the flood time of September the river rose from between 7ft to Bft. It was flcarcely as high in tho second and third floods, but the rise would be fully sft. The effect of this state of the river on Duck Creek was to impound tho water there. From observation he judged this damming would extend back to the northern boundary of the Otakia drainage and beyond it. The effect of the banks of the creek being below the banks of the river was that the water overflowed. He had been over the Momona land several times since the flood. He considered tho Momona land worth fully £2O an acre to-day without any improvements at all on it. The Momona crops very favorably with any on the Taieri. Sutherland's land was much safer from flood than tho Momona land. Columb's and Newman's crops on Momona were considerably better than Sutherland's. The explanation of the lesser value ob~' tained on Sutherland's land was because of the poor manure. Some of Moynihan's oata ■were drowned out—that was on the lowest portion, that furthest west. He knew Moynihan had been equally as. badly flooded oat before last season as he was then. To Mr Praser: The continuous rain and the cold weather last season were respon»ible for the bad crops. Ho admitted that land suffered materially by continual soakage. It was worse than occasional flooding. The Last season was the worst he remembered for thirty-«Lne year* on the Taieri For tie last eighteen or nineteen year* he bad been doing nothing but farming, and had been a tenant of his present farm for eight and a-half years He farmed 305 acres. About 205 acres were on the west side below the dam. The personal _ interests of tho members of the Board directly lay below the dam. They called in Mr Coustosn to devise a scheme, which they would have adopted if they had approved. The Board did not ask hhn to devise tho scheme of 1905. They devised that themselves in conjunction with the West Taieri Board. That was a continuance of tho matter <rf raisins: the dam. not of scouring tho channels. He knew of the dam having been cot away one© by Mr Sotmmess before the Board took it over. That would be in 1900, he thought. The •works were taken over by the Board in thai year, and they constructed; tho dam to confine the water ta the, with, * view to disch»gipg tibe water into the river. Hia oym object was not to protect Mnoelf j& fte.cgpesae of hj» Jiswbjtaf..

He acted for the best far all paxtj/es, fliid from a high, sense of duty. Finding f&ai the_ works at the dajn. were not efficient, they raised the dam.., Enibankpijents were also constructed to further confine tihe ■water, in the channel. Oil the occasion of a lawsuit in 1903 Moynihan pat in a clahn for damage for £2Q m JEJ2LS, and the defence was that they hs)4 not raised the dam further than the <lirectiions> given by the Board in, 1900. After the" action they did not determine not to raise the dam any more. He could not recall any such resolution on tho minute book. In 1900 he heard the first complaint about the dam. The only reason he could give for raising the dam at any time was'to" confine the water to the channel. If the water came over now, he would not say they would raise tho dam still higheT, neither wotld he say they wouldn't. He would not say ill© Board wens individually (interested in the water not TOramg over the dam. If the dam damaged the land at Momona. his own lrvnd must be damaged too. In 1905 he had 200 acres under flood. On the lee side about thirtv.or thirty-live acres were flooded. In 1904 he was just as heavily flooded, but was not. ro much so in 1903, neither was it in 1902. In 1904 he knew lie was flooded by water coming down from Momona. The water varied from throe- to four chains and ten ohains in width. He could not Tudcre the depth. There was a phenomenal fall of rain an 1904; there was. am equally phenomenal fall in' 1905. He had not seen an excq>tioually good crop on the Taieri. The croTis were fairly good even where thev were sewn after being flooded out. Clarke's croi> on Momona would, he reckoned, q*> from thirty to thirty-five bushels. That was. a, fair crop for good land, and a. good crop for indifferent bind. Tsr Clarke's crop he meant that above the flccdod area. Suminarising hds evidence, he said tliat whatever harm was done to Morronn, -was caused b r the season, and not by the dam. Hp did not profess to be an expert. Tn 1905 lie ws watching the dam dav and night. He thoucrbt some of the people mirht cnt it, a n d because it had put there for a specific object he wanted to prevent thorn doin<r so. Tlie dam, however, was cut, or ehe it buTst away. He did not rot ice the effect of this on the properties above. The cutting of the dam. he th<vn<?ht, made no difference to the levels. There was always a. flow in the cross-cut, but of course it was lessened at time. Under certain conditions Duck Cm?k had no outlet. The Board had made ■'ll provision thov roidd for tho «utlets of Thick Creek. ' With the Board's limited firtanoes they could not afford to ocnfFJTOepumpineop-nifior,R at Duck Creek, and the West Taieri Board would not hear pn.rt of the cost. They 'hid onty used thfpump once since hist September. It was then worked for a fortnight. At the time of the second flood Moynihan. asked him to CO a,nd_ see his (Moynihan's) property, but he declined. He had never seen the water overlapping the dam. He would denr Movn-ihan's statement to that effect. It never came higher than four or five inches from the surface. Since the flood of 1905 they had banked Duck Creek at Craigae's. He supposed there must be less -water, under present conditions, than there was in 1905. There -was an escape for Duck Creek water on Moyrohan's propertv aboveßcid's. It also escaptd below Craigie's, and above Bryant's. Mr Stevenson had complained of their (the Board's) water coming' on to him at Henley. It was advised by the Board's engineers in 1903 to clean out the watercourse and extend it. Had this been done, as he understood it. the darn would have been removed. They did not adopt this recommendation,, ns they were not convinced of its advisability. "They proposed as an alternative to put the water into the Lee Stream. In his opinion., the Board's engineers did not condemn the dam. He did' not hefiVve the presence of the dam threw back the water on Momona. The river wan a cause of damming back the water. He was aware of the fact that the West Taieri DTainago Board would have nothing to do with the raising of the dam. He denied that the raisinsr of the dam was to savo the tenant' on Shand's estate at tho expense of their neighbors. He had never had any recompense qs allowance from his landlord. The Bcxarrf's rescdution of yesterday was passwl under their solicitor's advice. He could not influence the Board._ He had never considered the advisability of removing the dam, unleS3 the West Taieri Drainage Board would make a lomi, straight channel to the river. He placed his own local knowledge against the expert evidence lie had heard. He did not remember the Board having had a communication from the Crown regarding the dam. The Board were most anxious to remove the dam, if the water were properly provided for, but in that matter thev would require the assistance of the West Taieri Drainage Board and others interested. In roing over the Momoma lands he. saw evidences of very little damage. There had been two or three davs of verv hea.vy rain at the time of 'his visit. To Mr Stephens: In respect to Bryant's contract, Moynihan complained to him about the way the work was conducted. He said it should he started at the top instead of at the bottom. He was prepared to swear that Moynihan, in hris complaint, mentioned Bryant's contract, and not Reid's. Re id's work was done by that time. Reid's contract, he did noVunderstand, as irccrndieg work through Raid's and Moynihan's land. Moynahan may have been referring to the bamkinjr and not to the cleaninar when he said the work should be started at the top. In 1902 they had no levels of the dam. As stated before, the Board's case in 1902 was that the _ da,m had not been raised above its original heirfrt; that was the evidence in the case which was brought? ajrainst the Board by Moyntihan. Thev established the level of the water in 1902 bv comparing it with its height in 1900. He' thought the height of the wafer was fairly uniform. Under present conditions it was certainly not uniform now. The dam was raised in 1903 by six inches, because the embankments at Reid's, in December, 1902, had been raised, and they brought up the top of the dam to meet them. At this staie the Court adjourned till Monday, at 10.50 a.m .