ARBITRATION CASE.

Mataura Ensign, Issue 1146, 7 February 1903, Page 2

ARBITRATION CASE.

A DRAINAGE DISPUTE. An interesting case was heard yesterday in the Gore Magistrate's Court before Mr G. Cruickshank, S.M., and Messrs S. H. Smith and A. A. Mac Gibbon, sitting as an Assessment Court, under the Land Drainage Act of 1893, and also as an Arbitration Couit under an agreement between the parties to submit •natters in disputo between them to arbitration. The facts were shortly as follow : R. McNab, M.H.R., for whom Mr Inder appeared, is the owner of section 1, block I, Waikaka, commonly known as the " Preemptive Eight," and Philip Heffernan (Mr Neave). is the owner of section 7, block I, Waikaka. Some years ago Mr McNab's predecessor in title constructed a drain through the pre-emptive right to drain it, and Mr Hefiernan also constructed a drain along the boundary of his property, and connected that drain with the drain through the Pre-emptive Right. Mr McNab issued a writ in the Supreme Court against Mr Heffernan asking for an injunction and nominal damages. Mr Heffernan then applied for protection to enter upon the pre-emptive right, and deepen and widen the drain in order to carry the water from his farm on to the pre-emptive right. Mr Smith was appointed as assessor for Mr McNab and Mr Mac Gibbon for Mr Heffernan, the Magistrate being chairman. The matter came before the assessors a month ago, when the parties agreed to submit all matters in dispute between them (including the proper method of draining Heflernanls property) to the arbitration of the three gentlemen named. In company with the parties, their solicitors, and witnesses, they visited the ground then, and yesterday sat to hear argument and evidence. Evidence was given by Mr P. B. MacDonald, surveyor, Mr McNab, and MrHeffer-. nan.

Mr Inder contended that it was clear that as Mr McNab's title was under the Land Transfer Act, Mr Heffernan oould get no rightof eaßement to drain his land through the pre-emptive right, and was therefore entitled to an injunction, and also that Mr Hefferman had no absolute right to drain his land through the pre-emptive right under the Land Drainage Act, and that the assessors must exercise their powers judicially, and that they could not be used arbitarily. Also that if they found that by draining Mr Heffernan's land through the pre-emptivß right they would inflict upon Mr McNab injury which could not be compensated-for cash, they had to refuse the application, and act in the'powers conferred upon them by the submission aud find another course. He contended that nature could not be improved upon, and the best course for the drain was that provided by nature, which clearly was down through Mr McKinnon's land at the bottom of tbe pre-emptive right, on through East Gore to the Mataura river. Ho pointed out that it would be impossible for Mr McNab tile the pre-emptive right if foreign water was allowed to flow though it, whereas it .could be tiled if only natural water were flowing through it. If they came to the conclusion that the proper course ior the drain was through the pre-emptive right, then Mr McNab was entitled to compensation, severance, loss of land, and all expenses he had been put to. Mr Neave, in reply, stated that it was clear that only natural water was flowing on to the pre-emptive right, and the proper coarse for tbe drain was through Mr McKinnon's property. His client had an absolute right under the Land Transfer Act, and they could not deprive him of that right, because Mr McNab wanted to go in for fancy farming. He submitted that there was no compensation between the two claims, as the cost of draining through the pre-emptive right would be very small, whereas constructing a drain through Mr Heffernan's land, and down through Mr MoKinnon's would be a large order, and his client could not be called upon to bear the expense. Further he contended that it was proved that Mr Heffernan had by an agreement with Mr McNab's predecessor in title acquired the right to use the drain through the pre-emptive right, and was now entitled to an order permitting him to enter upon the land and widen and deepen the drain, and that no compensation was payable. The Magistrate intimated that he thought that the assessors had better deal with tbe matter as they now found it, and decide on what was the best scheme for draining the land, and in what proportion the costs should be taken. The assessors would reserve their decision, and if they required further argument would intimate to the parties.