SUPREME COURT.

Manawatu Herald, Volume XLVIII, Issue 3528, 24 August 1926, Page 2

SUPREME COURT.

F. S. EASTON V. MOUTOA DRAINAGE BOARD.

ARBITRATOR TO BE APPOINTED

The Palmerston N. session of the Supreme Court was resumed yesterday morning 'before His Honour Mr Justice McGregor, who dealt with an action between Frederick Spencer Easton, of Foxton, and the Moutoa Drainage Board, in which plaintiff sought to recover from the board £I,OOO for alleged damages, and a writ of mandamus or a writ of injunction for the purpose of compelling the defendant board to properly clear, cleanse, and maintain in proper order the drains in the statement of claim; that the defendant board be restrained from proceeding to deepen the Kuru Kuru drain before maintaining in proper order- the other 'drains specified, or proceeding with the deepening of the Km Kuru drain so as to throw on to plaintiff’s land large quantities of water which in the ordinary course of nature, it was not liable to receive; and such further or other relief as the Court might deem the plaintiff entitled to.

The statement of claim set out that plaintiff owned certain properties situated in the Moutoa drainage district. The defendant board managed certain drains as follows: Main drain running in an easterly dreetion from the Manawatu river; the drain known as the Diagonal drain; Langley’s drain north; Langley’s drain south and Kuru Kuru drain. These were constructed for the purpose, inter alia, of draining the said land of the plaintiff. It was alleged that the board had made default in the proper eleans'ing and maintaining of same, and in the maintenance of flood-gates erected by the board at the mouth of the Main drain and Diagonal drain, where both debouch into the Manawatu river. It was alleged that, because the board did not properly maintain the said drains and in keeping in repair the flood-gates, the lands of plaintiff had, from time to time, been covered with flood water, which would not have happened if the drains had been properly maintained and the floodgates kept in repair. Further, the plaintiff claimed that the board did not provide an outlet for the waters which accumulated in the Kuru Kuru drain, which had been opened out and deepened. The result again was that ..plaintiff’s land was unnecessarily flooded. Plaintiff alleged that he suffered,great loss and damage thereby. He had been unable to graze his cattle and sheep and his licensees had been prevented from cutting the flax on his (plaintiff’s) lands.

The defence denied that plaintiff was the proprietor or owner of the land in question, and averred that, without negligence and at the proper time each year each and every drain had been cleared and cleansed and maintained in proper order. If any time the plaintiff’s lands had been covered with water‘such condition was not caused or contributed to in any way, nor was such water prevented from, escaping by default in cleaning and maintaining the said drains. Further, a proper and sufficient outlet for the water existed when the board deepened the Kuru Kuru drain, it being es- • sential to deepen the drain in order to drain the lands traversed by the Kuru Kuru. The works and acts alleged to have been done by defendant were carried out in pursuance of the authority conferred under the Land Drainage Act, 1908. Mr C. A. L. Treadwell, of Wellington, represented plaintiff, and Messrs Cooper and M. B. Bergin the defendant board. SETTLEMENT SUGESTED. Mr Treadwell’s outline ’ of the case lasted nearly an hour, during which time he presented plans and photographs of the locality, the lands, he stated, being flat and. just outside the township of Foxton. His client was an ex-chairman of the board. His Honour asked whether, since Mr Easton’s retirement from that position, it was a case of everything going wrong. Mr Treadwell replied that it appeared to be so. Mr Treadwell then called his first witness, but. His Honour interrupted with the intimation that, after listening to counsel’s opening, it seemed to him that the matter could be settled in a day by an expert .engineer, who could go out and ascer- » tain the nature of the damage, if any, how it was caused, and the effect. The arbitrator could report to the Court. Mr Cooper staled that he was agreeable to adjourn and discuss the matter of appointing the proposed arbitrator. After the parties had discussed the position the Court resumed' in the afternoon, when Mr Cooper stated that his clients were not agreeable. His Honour replied that the case was one where the facts should be ~ ascertained by a technical authority more competent than a Judge in Court, and he stated that he proposed making an order under section 15 of the Arbitration Act. He would order all issues of fact, including damages, to be tried by an arbitrator to be decided on, his report to lie submitted on or before October 23. The name of the arbitrator is to be supplied within a week.