COMPENSATION CLAIM.

Hauraki Plains Gazette, Volume XXXVII, Issue 4988, 16 June 1926, Page 3

COMPENSATION CLAIM.

DAMAGE FROM RIVER WORKS.

CLAIMANT LOSES IN TEST CASE.

judgment was delivered by Uis Honour Mr Justice Herdman In the test case for compensation which was heard in April of last year and again on May 17 this year at the Supreme Court, Auckland, Vast week. The judgment was as follows: — "This is a claim made by Mr Chamberlain for compensation in respect of certain lands situated upon the banks of the Ohinemuri RiverHe submits that his property has suffered injury to the amount of £2370 by reason of certain - river improvement works carried out by the Government under legislative authority contained in the Waihou and Ohinemuri Improvement Act, 1910. Before dealing with Mr Chamberlain’s claim, and with the evidence for and against it, it will perhaps help to elucidate matters if, to begin with, I make some general observations about the improvement work undertaken by the Crown. “Many years ago the Ohinepiuri River was a; clear running stream which gave little trouble to settlers in its vicinity. It is affected by the tide for a considerable distance up river, and at one time it was sufficiently deep to permit small steamers to berth alongside the wharf at Paeroa. It has, no doubt, always been liable to rise to flood height, but according to the engineer of the Ohinemuri County Council,, who was called by claimant, no one gave serious heed to floods until the year 1910, when a rise in the river in that year showed that it could become dangerous. The conditions of the 'river altered gradually after mining companies were per-

mitted to deposit tailings in the riveri bed. That permission was given in the year 1895, but it was not until the year 1907 that the lower reaches of the river showed signs; of being affected by the movement of silt l down stream. It would seem that successive floods gradually forced the silt deposits down stream. When heavy rains fell in the year 191'0, so deep and' extensive were the deposits', of silt in the river-bed that the channel was unable to cope with the flood-water, so it spilled over the river-banks at Moananui’s Flat and at other places, scattering deposits of silt over the neighbouring lands. It is indisputable that the constant discharge by mining companies of debris from 1895 onwards produced substantial physical changes in the river. Instead of being a stream of unpolluted water it had become in the - course df tijnie a river heavily paved with silt; and so deep p 001.6, which at one time existed, were filled up, the river bed was raised, and the carrying capacity of the channel was materially diminished. The consequences pf these changes in the ; river-bed caused by the mining operations were that property adjoining the river was inundated with water from time to time. On one. occasion the town of Paeroa was threatened, and there is ample evidence to'prove that on occasions flbod-waters escaped over the banks of the river and spread far and wide over the sur- . rounding country. "The carrying capacity of the river, sb says Mr Baker, inspecting engineer for the Public Works Department, • was at its worst in the year 1911, and there can be no doubt that the flood of 1910 was a memorable one; so much sb that the Government was impressed with the necessity of giving settlers some kind of relief. The aid of Parliament was accordingly invoked, and it proceeded to fake steps to undo the injury that had been done by thd unrestricted deposit of tailings 4 by passing the statute already referred to which in its title is described as ‘an Act to remedy and prevent the silting and overflow of parts of the Wajhou and lOhinemuri Rivers and to improve the same for the purpose of navigation.’ Under this legislation extensive improvements nave been effected in the bed of the river. Close upon £490,000 of public money has been spent in dragging out willows from the alveus, in removing silt, in straightening parts, of the stream, a,nd in the construction df. stopf-banks for the purpose of keeping the water within bounds. “The result of the operations of the Crown has been that the river has been deepened, and th.a,t the danger arising from flood with which the country adjacent to the river was aldays menaced has to some extent been reduced. It cannot be doubted that some settlers have derived great benefit from the operations conducted by the Government. Oh the other hand, some owners of land in the neighbourhood bf the river claim that the work done has caused them loss. In the c,ase of Mr Chamberlain, if he has not benefited by these works he has not, in the opinion of the Court, suffered any harm by any change ma.de in the alveus of the river. The removal of willows, the clearing of the banks, and the deepening of the bed by shifting immense quantities; of silt have certainly done him no damage. His only possible claim for damage must rest upon proof that the erection of stop-banks has done him

injury. "In ,his evidence Mr Baker asserts

tha.t the carrying capacity of the at Mr Chamberalin’s proper'/ has, by reason of the improvements effected, trebled. This witness pointed out that in Mr Chamberlain’s case danger from flooding has not disappeared, but if figures produced by him which w’ere the result of actual observation and experiment he demonstrated to the satisfaction of the ma. jority b£ the Court that since the year 1910 the. claimant’s place had suffered no harm by reason of the works performed by the Crown in the actual bed of the river. At the same time it iVas not proved to the satisfaction of the; majority of the Court tha ( t his land had increased in value by reason of these improvements, for his property occupies a position on the river which renders it peculiarly liable to ‘“'“"damage from fiopd-water.

“It may be; that there, is a good deal to be said for the vie.w expressed by Mr Baker that had the Government been content to remain inactive from

1910 onward river conditions would have become; gradually worse, and any value which Mr Chamberlain’s land possessed would long ago have disappeared- On the other hand it is conceded by him that in time of high flood Mr Chamberlain’s land is required ,to take three inches more water than it did before, but he says that as a result of improvements made by the Crown the flood-water disappears more rapidly. "Apart from interference with the al.ve;us it is contended on the claimant's behalf that ho has suffered da,mage by reason of interference with certain alleged water-courses or waterways which it is said relieved the riverway in times df flood, and this is the really serious ground upon which Mr Chamberlain founds his clajm. Indeed, it is the only ground upon which he rests his case. The works which he alleges injuriously affect him are described in his claim as follows: —

“ ‘The construction of a stop-bank along the southern bank of the Ohinemuri River and on the right ba,nk from Pereniki Bend of the Waihou River.’

"The only comment that I have to make about the claim in passing is that it is definitely restricted to alleged injury caused by stojjj-banks. There is no cha.rge of injury done by reason of operations in the alveus of the river.

"It is part bf the scheme Of the Government that stop-banks shall be erected upon the land bounding the river, and the stop-banks are deliberately resigned, as their name imports, to stop the river escaping on to adjoining territory. It is claimed by het Crown that in ■erecting stop-banks it has done nothing more than a ripariaji owner is entitled to do at common law. In other words, the Crown declares that it has not at any point or in any way overstepped the limit which the law allows. On the other hand it is contended on Mr Chamberlain’s behalf that certain natural outlets for flood-water have been stopped up by the Crown, a,nd that accordingly his land is compelled to take water in flood time which, but for the. structures erected by the Crown, it would not be required to take, and so he says his legal rights have been interfered with and he has suffered damage. “After a lengthy hearing of this case at Te. Aroha, and after an inspection of the locus in quo and hearing argument, this Compensatipn Court decided as a matter of fact that in its operations the Crown had not stopped any natural channel by which waters might escape in times of flood, a,nd everybody consenting a case was stated by counsel for the opinion of the Supreme; Court. Certain questions of law were submitted to the Supreme Court, one of which only I need now consider. That question is this : whether upon a certain finding of fact of this Court to the effect that there was no recognised and natural flood channel at Moananui’s Flat connected with the Ohinemuri River and that there was no such channel at other places relied upon at the hearing, the. claimant is entitled to compensation.

“The Supreme Court is, of course, not responsible for findings of fact. That is the sole prerogative of the Compensation, Court. Nevertheless, there appears in the Court’s judgment (Chamberlain v. Minister of Public Works. 1926, N.Z.L.R. 101) a statement that this Court’s finding appeared to be in conflict with the undisputed fa.cts as disclosed in the plans which form part of the case;. It now appears that the Supreme (fourt had not before it the evidence which this Court had to consider. The typed notes of evidence taken at the hearing and the elaborate plans placed before this Court were not, I understand, made available for the Supreme Court, nor had that Court the valuable advantage which the Compensation Court had of personally inspecting the large area of country affected by the Crown’s work. Why the typed evidence ta.ken in this Court and the other evidence consisting of plans and other documents were not placed before the learned Judges I am at a loss .to understand.

“In the helpful judgment which the Supreme Court delivered the following principle of law was laid down. I quote from the decision of Justice Sim :—

“ ‘The claimant is entitled to compensation for daimage to his land arising from the construction and uses of the stop-banks, unless it is clea.r that the respondent has not done anything more than the landowners on whose lands the stop-banks were erected would have been justified in doing for the protection of their land, in accordance with the law as laid down in Gerrard v. Crowe, 1921, A.C. 395, and unless it is clear that the damage to the claimant’s land has not been caused by the obstruction by the stop-ba ( nks of any watercourse, or Boo'd channel, or any .ancient and rightiful. course for the floodwaters of the two rivers in question.’ ‘‘.What, then, does the case of Gerrard v. Crowe decide ? I understand the principle laid down in that case to be this. A landowner may erect upon his land a barrier to protect his property against damage from a, common enemy, namely, floodl-water, e;ven though his act may cause damage to his neighbours, provided he does not in any way obstruct the alveus or any watercourse or flood channel or any ancient or rightful, course for floodwaters across his lands. In thq judgment of the Privy Council the following appears:—

“ ‘The general rule as to the rights of ,an owner of land on or near a river to protect himselif from floods is well settled. In Farquharson v. Farquharson the rule was stated as follows: ‘lt was found lawful for one to build a fence upon his own ground by the side of a river to prevent da t mage to his ground by the overflow of the river, though thereby a damage should happen to his neighbour by throwing the whole overflow in time of flood upon his ground ; but it was found not lawful to use any operation in the alveus.’ ’ “It is conceded that the Crown, in carrying out its works, cannot be charged with the payment of compensation if it did no more than landowners upon whose land a, stop-bank

was erected would be entitled to do to protect their land. The claimant’s contention is that at three separate places the Crown unlawfully obstructed a watercourse or flood channel or some ancient and rightful course for flood-waters and so threw water on

to his land which he was not bound in law to take. I shall consider each alleged obstruction separately, and I begin by considering the; charge relating to Moananui’s, Flat. Two members of the Compensation Court agree after hearing the. evidence and inspecting the physical features of the locality that no watercourse or channel or ancient course for water within the principle laid down in Gerrard v. Crowe (supra,) exists at this point on the; Ohinemuri River. Away from the riverbank distant some few chains there are certain depressions in the ground the reason for the existence of .which is not apparent. They are; clothed with grass or vegetation, and they are not connected up with the river. There is no exit from the banks of the river into these depressions. It may be that when a flood subsides water may be held there. It may be that when water spills over the riverbank and reaches these depressions they become filled wtih water, but when that happens one wide sheet of water spreads, over the land known as Moananui’s Flat. Mr Baker, in his evidence, makes this statement about them :—

“ ‘I am of opinion that the depressions are a survival of old swamp conditions that existed in this area and marked probably the location of swampy watercourses. 'They lead nowhere in particular, and survive probably from quite ancient times.’ “It is significant that when the engineers were constructing the railway line close to Moananui’s Flat between the years 1900 and 1905 no provision wa.s made for coping with flood-water which might make its way down via Moananui’s Flat. An 18-inch pipe was provided for surface w.ater, and no other provision has been made since that date. The evidence, 1 think, showed that these depressions fell towards thq river and not away from it, and as I ha,ve pointed out they fall short of reaching the river bank. Mr Hazard, a surveyor who had resided in the district for many years and who prepared a plan of the locality showing extensive silt deposits, said that he; had not shown any of the watercourses on the plan as he did not think that they were worth putting in. A native named Here Kuiha said that he remembered the river coming on the flat in the flood of 1910, but not before, thus indicating that the course which the river took when it crossed the bank was not an ancient course. Moananui, a Native, stated that in a big flood the waters go all over the bank. Finally, a, Mr Barrett, a farmer who lives in the locality, said that he had not actually seen water over Mioananui’s Flat before 1910.

“Some evidence was given about the overflow of water at Moananui’s Flat during floods in years gone by, and I have no doubt tha,t at some time when the river was high it overflowed its banks there in common, with other places where the riverbanks were correspondingly low, but its habit was to spread over the country. This is shown by dotted lines on the plan which records the limit reached by the flood in 1910. As the flood subsided water would lie in depressions all over the country, and the depressions which the claimant alleges constitute a watercourse would share that fate; but the evidence taken ,as a, whole does not, in my opinion, prove and an inspection of the locality does not show that they constitute a watercourse or flood channel or any ancient and rightful course for flood-water. Mr Shaw, the county engineer, speaks about the water haying come over ‘not too often’ before 1910, and he refers to wbr.t he calls a ‘universal flood' in 1907.

“There is very little evidence to indie?,‘e that the river had a habit of escaping at Moiananui’s Flat. I think that until silting up made such a flood as happened in 1910 inevitable the river kept within its bounds except whein what was termed a, ‘universal flood’ happened. Before the silting became serious launches could come up the river within half a mile of Moananui’s Flat. The. river wa£ at ■that point six to eight feet deep, but when by 1910 the bed of the river had been raised by silt a man could wade across the strea,m. “The depressions at Moananui’s Flat relied upon by claimant are no t like those described by Justice Denniston in The Inhabitants of Mount Hutt District v. Dent, 14 N.Z.L.R. at page 116. In that case there Was evidence from which it could be. inferred that water in flood-time flowed along a depression through defendant’s lajid, and it was proved th,at as far back as 1878 so apparent was it that the depression wag a watercourse, that the owner of the land left gaps in sod walls at points where the depression commenced and where it ended, obviously for the purpose of making a way for the water. In Merry v. Canterbury College and Another, 16 G.L.R 688, similar depressions linked up with culverts were held to be storm-water channels. In the. present case there must be evidence of the existence of a watercourse oi- flood channel, but that is not forthcoming. Failing tha.t proo'f, then there must be evidence of the existence of an ancient and rightful course for flood-waters, such evidence for instance as proves that in time of flood ‘water had been carried 'for such a period of years over the lands of different persons as to constitute a right of watercourse in time of flood,’ see Trafford’s case, 8 Bingham at page 212, but proof of that has not been produced. Viewing the Whole of the evidence broadly, it does not prove, that there was ah ‘ahcie;nt’ course for water at Mdananlui’s Flat. The evidence; does prove witni definiteness that river conditions substantially changed after leave was, given, to use the Ohinemuri River as ei sludge channel in 1895, and that not until 1910, when the bed of fche rive; I" had been raised by silt deposits, did escaping flood-waters become an intolerable nuisance, but the existence of i

a definite ditch or channel and the existence of a.ny rightful and ancient ‘course,’ which expression I take to mean 'pathway/ has not been established. The evidence suggests that what lias taken place in the way of overflow is a comparatively modern development, and that since 1910 the Crown has been attempting to cope with the evil. “I think that the evidence does no more than indicate, that before 1910’ there W'a.s occasionally a general flood which affected the countryside, that from 1910 onwards there have been high floods, and that when a heavy flood did take place the waters did not flow in a.ny definite course but were distributed over the country generally. “The ne;xt point at which it is alleged there has been wrongful interference by the Crown is at the Kauoiti Stream, a tributary to' the Ohinemuri River, discharging into the latter at a point across from claimant’s property. In the plan produced during the argument in the Supreme Court no flood-gate was disclosed, but in a plan produced to the Compensation Court a, flood-gate was shown, and we saw it when we inspected this part of the improvement scheme. The flood-gat© was erected either by the landowner or by the local body many years ago, and the Crown has substituted tor the original flood-gate three flood-gates which are better able to cope with the natural flow of the stream than the old gate. The Crown has a : lso continued its stop-bank over the top of the culverts. Speaking of this stream Mr Baker points out that it discharges into the Ohinemuri water from a large area of country behind. Included in this area is the Rotokohu swamp. Mr Baker expresses the opinion tha ; t this stream cannot be regarded as an ancient watercourse carrying off flood-water from the Ohinemuri, the function of the course in which this stream runs being to drain wate;r into the Ohinemuri and not out of it. The channel in which the Kauoiti creek runs is a watercourse in the sense that, it carries water into the Ohinemuri, but not in the sense that it carries off floodwater from the, Ohinemuri River. That nature has provided for a substantial discharge of water into the Ohinemuri down .the Ka.uoi.ti creek appears to be evidenced by the fact that at the exit it. measured across at the; top about 35 feet. When heavy floods happen it no doubt becomes obliterated, the identity of the stream becoming merged in .the mass of Water covering the country, it by taking water that had backed up in times of flood t.he Kauoiti Stream could be said to accommodate any water which it is now barred from taking by the Crown’s works tho Quantity of water from which Mr Chamberlain’s property would be relieved would not in .the opinion of the majority of the Court be sufficient to afford him a claim for compensation. When considering this matter it must not be forgotten that the stopbank erected by the Crown keeps within bounds until the Ohinemuri is low enough to receive it safely the flood water for which tne watersbe 1 of the Kauoiti Stream is: responsible.

'The comment of Mr Justice Reed upon the alleged stopping of the Kauoifi Stieam is this: It is not clear whether there is a flood-gate at the stream c; - whether it j s completely blvcketi by a stop-bank. If the forme.-. it i.- within the rights cf ihc owner o' the land and <* mseqnently no claim can be based upon it.’ “As i havq already pointed c-ut, fchete was a flood-gate there, a,nd there are flood-gates there now. Nothing that the Crown nas dove interfere- witli the flow of water intc the Oameniuri except to facilitate the dt-< l arge of waters from the watershed cf the Kauoiti Stream, and any right to flood-gate the stream which the lai downer or local body possessed has been respected by tne Crown. Mr Sl.av, the engineer off tne Ohineniitri County Council, who was called as a witness, said that he was employed in repairing the flood-gate, so it would seem tha,t if there has bee;n any illegitimate obstruction of the Kauoiti Stream the primary responsibility rests with the local body and not with the Crown. If, however, it be assumed that this small stream is a watercourse or channel into which the Ohinemuri discharged in flood time, the majority of the Court is of opinion that the; quantity of water which could be forced back from the Ohinemuri up the stream would be so negligible as to afford no relief to Mr Chamberlain worth mentioning. It is impossible, in the opinion of the majority of the Court, to overlook the fact that the. conditions at the, Kauoiti creek were like other parts of the river affected by silting operations, and that by the artificial lifting df the bed of the Ohinemuri the waters of that river may have been forced up the creek, but there is no escape from this : that as a. watercourse it carries water to the Ohinemuri ; that as a flood chaanol ils primary task is to carry off flood-

water Item a large tract of country stretching away back to the hiJis, and that' there is no satisfactory proof that it is an ancient course or pathway for Ohinemuri flood-water.

“As to the ‘old meander/ as it is termed, of the Waihou River, the position was clearly not. made plain to the Supreme Court. At one time in its history the Waihou River, flowing in a northerly direction, suddenlv altered its course to the eastward and junctioned with the Ohinemuri River at a point to the north-west of Paeroa. In flood time the junction of the waters of the two rivers at this point created serious flood conditions, so to relieve the congestion the course of the Wa-ihou River was continued in a .straight line by means of what is called the Ngararahi Cut to a point lower down the Ohinemuri River. About the year 1919 .this cut was completed, and by September of 1921 a stop-bank was completed whicn stopped the flow of any water back from the Ohinemuri River up into the Waihou and prevented the flow of the Waihou water into the Ohinemuri, which wa : s the natural course for the Waihou to take;. The effect of the Ngararahi Cut and the stopbank referred to was first, to change the point at which the. Waihou a,nd Ohinemuri Rivers junctioned ; second, to prevent the Waihou flowing into the Ohinemuri at the old junction, and thirdly to prevent the Ohinemuri in flood time forcing its way back up the Waihou at the old junction. Incidentally, it. prevents the Waihou overflowing into the OhineniUTi in flood time at the old junction. It removed the junction of the two streams further towards the; sea from Chamberlain’s place 2% miles. It brought the two rivers together at a point five miles distant from Chamberlaiii’s place. To put it another way, any congestion caused by the two rivers joining .at what is called the 'Old junction’ was removed 2% miles further down stream from Ch amberla.in’.s property. “But no claim for compensation was lodged when the stop-bank at the Ngararahi Cut was made for the obstruction of a natural course, and no claim can now be made for such an obstruction if it be an obstruction. The claim made to-day is in respect of a new stop ba,nk, which it is said prevents the Ohinemuri from getting into that part of the Waihou bed which became obsolete when the Ngararahi Cut was substituted 'for itThis old disused bed had become a depository for sand and silt- It,l is no longer a water course carrying the Waihou waters to the Ohinemuri water. Flood-waters but for the new stop-bank might get into it, no doubt would get into it, when a flood was in progress, but I would hesita,te to speak of it now as a natural flood channel. It was a, natural flood channel carrying the Waihou into the Ohinemuri until it was shut up in 1919, when the Ngararahi "Cut was made, and when a stop-bank was erected close to the cut, but now it has ceased to be a channel for carrying off water. A negligible, quantity of water might be stored in this old disused bed in flood time, but we are all agreed that the erection of the stop, bank across the eastern end of the ‘old meander,’ if technically it does amount to the obstruction of a watercourse, can do no possible injury to Mr Chamberlain’s land. On the contrary, we think that the Ngararalii Cut operations by causing the Waihou to flow in a, straight line, thus facilitating .the get-away of flood-water, prob.ably improved Mr Chamberlain’s position, even though his land was approximately 2% miles up stream, but as to this wte express no definite opinion. My recollection is that at the hearing at Te Aroha very little importance was attached to the ‘old meander.’ “The Court is not unanimous about Mr Chamberlain’s right to recover compensation. Mr Walters, the. assessor appointed by Mr Chamberlain, agrees that Mr Chamberlain’s land is not affected in any way by any work done at the ‘new meajider/ but he is of opinion that claimant has been damaged by the operations at Moananui’s Flat and by work done, at the Kauoiti Stream. But the other members of the Court are of opinion that thereh as been no obstruction of any watercourse or flood channel or any ancient or rightful course at Moananui’s Flat or a,t the Kauoiti Stream, that in any event no damage worth speaking about has been done by operations at the Kauoiti Stream, and that if there has been any technical interference with a watercourse at tlie. ‘old mea.nder’ by the erection of a stop-bank at its eastern end claimant’s property has suffered no damage therefrom. The claim for compensation therefore fails. “In the circumstances no order will be made as to costs. The parties will pay their respective assessors, the ■’fee for ea,ch assessor being fixed at the sum of £52 10s.”