FARMERS AT LAW

Manawatu Standard, Volume XLIX, Issue 141, 16 May 1929, Page 8

FARMERS AT LAW

QUESTION OF DRAINAGE,

ACTION IN SUPREME COURT,

In the Supreme Court this morning further evidence and legal argument were taken in a case wherein two Ohakea farmers each alleged that the other hand wrongfully interefered with the flow of water along boundary drains. The case first came before Mr Justice Ostler (who was on the - bonch this morning) in June, 1927, and it also came before the Court in December, 1927.

Plaintiff was Frank Oliver Bailey, and defendants were Albert Charles Vile and Mrs Sarah Vile.

Mr H. R. Cooper appeared for plaintiff and Mr J. Graham (Feilding) for defendants. STATEMENT OF CLAIM.

The statement of claim alleged that plaintiff owned a 165 acre farm at Onukea and uelendants owned adjoining lands comprising 103 acres belonging to A. C. V'lle and 93 acres belonging to Mrs Sarah Vile. The boundary between plaintiff's and defendants’ pluces was a bank and gorse fence over 40 years old. On defendants’ sido of the fence was a ditch. In May, 1926, derendants and their workmen connected a number of depressions on their land by a drain or drains and thereby caused large volumes of water to flow into the ditch running along the . boundury fence. Defendants by deepening and enlarging such ditch brought such water to a point on the boundary where defendants cut through the bank and by digging a large drain on plaintiff's property caused tne water to flow over and flood his land. Plaintiff immediately protested and rebuilt the bank where it had been cut through. ’ Notwithstanding plaintiff’s protests, defendants again cut through the bank and kept the cut open and also the drain dug by defendants on plaintiff’s land and intended to repeat and continue such acts of interference. By reason of the cuts plaintiff’s farm was on various occasions flooded, and his crops, land and stock suffered to the following extent: Loss oil crop of turnips, £4O; grass feed destroyed, £35; top-dressing lost, £10; loss on 22 acres reserved, for grass seed, £100; depreciation in value of hoggets, £25; wages and time in repairing fence and drains, £l3; general damages, £100; total £323. Plaintiff claimed £323 as damages and sought an injunction ordering defendants to restore the drains and bank to their former position and restraining them from further interference.

STATEMENT OF DEFENCE. In their statement of defence, defendants admitted that their farm adjoined that of plaintiff (but denied that the boundary was a bank and gorse fence. The boundary was a “ditch and bank fence” constructed over 40 years ago. On defendants’ side of the boundary was a ditch, but there was also a ditch on plaintiff’s side. Defendants or their workmen had not in May, 1926, or at any time connected by a drain a number of depressions on their land and thereby caused water to flow along the ditch running along the boundary fence. They had never cut through the bank or done any damage on plaintiff’s land. Plaintiff had never suffered any damage, or, if he had, it was not caused by defendants’ actions. For a further defence it was alleged that for 40 years the owners of the respective properties had allowed the water to flow along the ditches to where a natural watercourse, existed. In October. 1926, it was alleged, plaintiff wrongfully banked up and closed an already existing opening and that defendants rightly removed this obstruction. Plaintiff had for very many years prior to 1926 acquiesced in the state of the drains and the flow of the water.

RETIRED FARMER’S EVIDENCE. The only witness called this morning was one tor the defence. James Lohb, a retired farmer, stated that, over 36 years ago he was well acquainted with the land in question. He had inspected the drains and depressions just prior to the commencement of the case in 1927 and they were then in practically the same condition as they were 36 years ago. Replying to Mr Cooper, witness stated that he had never heard of anyone going duck shooting on tile natural depressions or ponos .on the place. His Honour stated that, from the evidence previously called, he was satisfied that there had always been a gap in the boundary bank where the water had gone through. The Court was also satisfied that there had always existed a natural watercourse as alleged by the defence. Mr Graham then, proceeded to trace the original title to the land as revealed by searches. It was submitted that the drains had always existed on the property and had been accepted by the various selectors as necessary for the proper drainage of both farms. Mr Graham quoted legal authority to show that the present position should not be disturbed. Mr Cooper, for plaintiff, submitted that no prescriptive right had been acquired for the water to flow along the drains and into plaintiff’s land. The farms were under the Land Transfer Act, and therefore could be subject to no easements unless registered on the title. This had not been done. Counsel submitted argument to show that plaintiff had a right to have the flow of water prevented. His Honour intimated that he would take time to look into the authorities. Decision was reserved.