SUPREME COURT.

Lyttelton Times, Volume LXI, Issue 7223, 24 April 1884, Page 3

SUPREME COURT.

CIVIL SITTINGS. Wednesday, Ai-hii, 23, (Before His Honor Mr Justus) Johnston and a jury of four.) wnroiiT v. omasTCHOKCit drainage board. Mr Harper for plaintiff j Mr Garrick for defendants. This case was resumed at 10.30 a.m. Mr Garrick moved for a nonsuit. Ho submitted that the pleadings alleged that the defendants, before the time hereinafter mentioned, cause to bo executed within the said district and near to and adjoining the land of plaintiff, certain works, which works defendants did negligently, improperly and insufficiently, and at the time hereinafter mentioned kept and continued the same works improperly and insufficiently, and negligently managed such works, so oa to cause and permit largo and unreasonable quantities of water to overflow the land of the plaintiff. Ho took the technical objection on the plaintiff's notice of action, which was for a wrong, committed in the month of September, and therefore was at variance with the declaration, which alleged the wrong to havobeoncommittedin August. He quoted Burton v. Mayor and Corporation of Salford, 11 L.R., Q.8..28G. He contended that there had been no- notice entitling the parties to take this action. There were only two causes of action under the Act, one unddr section 104, on account of negligence or want of skill, and under section 105, compensation was prol- - for even an accidental damage provided that notice should have been, given in writing, warning the Board of the probability of such damage. The Act also provided that action must be taken within 12 months, and the cause of the alleged damage arose in July, 1882, when the contract for widening the drains was taken. He cited Hammond v. Vestry of St Pancras, 43 L.J., C.P., 157, to show that the defendants were not obliged to deepen, widen and keep clear the drains unless they became a nuisance and inju-' rious to health; also Lloyd, “on Compensation,” 110. Then as to the evidence in the present case., he submitted that it, did. not show any n egligence since 1882, but that the system was vicious ab initio. His Honor remarked that the question then would narrow itself into whether or not the defendants were responsible for continuing the system. Mr Harper, with regard to the limitation of time, cited Whitehouse v. Fellows, ! C.B. Reports, New Series 705 and 784, to show that the period should he reckoned from the time the injury was sustained. The statement of claim alleged that the defendants “kepi; and maintained” the works. As to the notice of action;. the words were “ on or about the month of September,” and they were sufficient to give the defendants notice of the time when the damage complained of occurred; besides the statement of claim contained the words “ and on other days.” He was content to take it as that the damage had •ccurred in September. With regard to the much larger question of the defendants’ liability to keep the drains in a proper manner, so as to prevent the overflow complained of, he referred to the Act, which gave the Board, by section 34, the right to keep in an efficient state any water course, &c., or to make new water courses, &c. All this was discretionary. By section 42 all public drains, &c., were vested in the Board; all the water courses were under their control. When once they took them under their control, they were obliged to keep them in a state of efficiency. He cited Borough of Bathurst v. M'Pherson, 4 L.R. appeal cases, 256 and 267 ; Gibbs v. Mersey Dock Trustees, 1 L.E., H.L, 93 and 106; Anderson “On Torts,” 667 ; Geddes v. Bann Reservoir Company, 3 L.R. appeal cases, 430. ■Mr Garrick submitted that the case of the Bathurst Borough was distinguishable from the present case. The principle to guide cases of damage like the present was declared in Manly v. St Helen’s Canal Company, 27, L. J. 159. He cited Heathcote Road Board v. Manson, 4 N.Z. Jurist, 112.

His Honor could not grant the nonsuit, as there was evidence to show that the defendants had caused a larger quantity of water to flow on to the plaintiff's land. With regard to the question of limitation, he was of opinion that the time dated from the culmination of the enquiry. As to the notice, it might he necessary for Mr Harper to ask leave to amend. Mr Garrick asked his Honor to take a note that he would move that his Honor enter a verdict in order that the parties might by consent take the case direct to the Court of Appeal. The following evidence was given for the defendants: —

Francis Thomas Haskins, Town Clerk: Was formerly Clerk and Surveyor to the Avon Eoad Board for seven years, up to about the year 1874. Had resided at Papanui for nearly 30 years. The locality now under consideration was within the Avon District. It was continually under water in wet weather. There was a great fall from the North road, aad water used to pour like a cataract into the swamp before there was any drain. Mr Kruse stopped the drain at the boundary of his land, and backed the water on to the North road. The water accumulated till it forced its way through his obstruction. A large body of water came down from the Eiccarton district along the Northcote road between sections 232 and 25. That was cut off and taken direct northwards into the Styx. Cut a drain to lead the accumulation of water on the North road into Dowall’s drain. Kruse made a second obstruction before witness cut _ the drain, which only took the same water into Kruse’s drain by a different way. The Provincial Government cut Kruse’s drain for a certain distance and let the water into the swamp. The drain had been as it now is for about 18 years. Witness retired from the Road Board on the formation of the Drainage Board, to which ho became secretary pro tem. Daniell’s drain was cut after witness’ time. There was a considerable natural depression on Daniell’s land, section 224, and witness, in compliance with the Board’s instruction, cut a drain down Daniell’s Eoad into Kruse’s drain. The ratepayers objected to any more being expended on Kruse’s drain, which was to have taken the water into the Styx, and the usefulness of the work was crippled for the want of a few pounds. The ratepayers said the Styx was about to bo run on to the land. The witness described with much minuteness the nature of the levels and drains in the locality. Cross-examined: The drain down Preston’s road to the Styx was 'constructed in about 1870. It was much as it is now. The culvert was 4ft square, and the bottom of the drain was 3ft, and the top sometimes 16ft and sometimes 20ft wide. It was to relievo Kruse’s drain, aad drained a large area, but its being stopped prevented its answering the purpose for which it was originally cut. Between the oud ot tho main drain and Preston’s drain there was a small ditch which was of no use. Witness intended to cut clean to the north. The water from Horner’s and Darnell aland wont to the Styx in time of flood. Witness’ system would have effectually drained the district, and only the Ugliest part of tlio work had to be completed. 1 bore would have boon two outlets. Witness object was to save nine miles to the Avon,. To J the Styx it would bo under a mile. The Eoad Board would not let witness touch the drain after bo had non kl & it. A great portion of it silted still the water ran in defiance of all that. After tbo culvert in the North road was mado the water was much lessened. The culvert was sufficient to take the water. Kruse’s drain was amply sufficient to take all tho water from tho creek. Ec-oxamined : There would be about

nine miles by not os the crow flics. Witness proposed to drain towards Papanm. Witness objected to the Drainage Hoard bringing water through hia land, which was peat land.

Charles Napier Bell, civil engineer: Was Engineer to the Drainage Hoard from 1870 to the middle of 1882. The levels shown on the plan produced were incorrect, the drains having been deepened and widened to a small drain to the south of Winter’s road. The main drain from Kruse’s to Winter’s was widened and deepened, and the inclination made steeper. The same thing was done as far as Inncs’ road. In addition a drain was cut on the north side of Winter’s road, making a double outlet. A contract also was taken to deepen, widen and make steeper Dudley’s creek from its junction to HJigh’s road, and also to i’jiil pott’s road. Bullor’s drain was similarly treated. The deepening, Ac., extended a short distance up Kruse’s drain. The witness detailed the action of the Drainage Hoard. Witness had proposed to cut a drain from the corner of Kruse’s direct into Dudley’s creek. This raised a storm of opposition and for that reason the Board declined to take the water by a now course, and preferred deepening the already existing channels. Had also proposed to cut oS the Papanui and Bligh’s creeks, and to lead them by a short course into the Waorarapa river. Had found that this was the original natural course. The proposal was warmly opposed, and the Board consequently did not entertain it. The operations of the Drainage Board had greatly benefited the district and had relieved the land of Messrs Kruse and Horner. Cross-examined: The Board had had claims for over-draining land. A large portion of Bligh’s and Buller’s drains were quicksands. The expense prevented further deepening. If they were deepened up td the flooded country they would drain this. Edwin Cuthbert, Civil Engineer: Succeeded the last witness as Engineer to the Drainage Board. The witness detailed what had been done in the matter of widening and deepening the drains. Cross-examined: AU the drains are cleaned before the winter rains set in. The witness confirmed the evidence of MiBell. He, did not think that Winter’s drain materially backed up the main drain. The flatness of the grade caused the block of water. Elias Gaudin,, Inspector for the Drainage Board: Knew the locality, and jts being flooded in 1883. Visited it in July, when he saw Mr Kruse. The witness described the appearance, of the floods. Isaac William Philpott, farmer: This witness gave corroborative evidence. The Provincial Council constructed a drain from Buller’s through Borghfield’s, Kruse’s and up to Daniell’s, where there was a “ trig ” pole. Borghfield ploughed in the drain after Buller’s drain was deepened by the Drainage Board. Cross-examined: Had lost JE2SO by his land, which was planted with potatoes, being flooded. Was better drained now than ever he had been.

The Court adjourned at 5 o’clock till 10.30 to-moiTOw (Thursday) morning.