COUNTY COUNCILS AT LAW.

Manawatu Standard, Volume L, Issue 144, 17 May 1930, Page 13

COUNTY COUNCILS AT LAW.

RIGHT TO TAKE SHINGLE. JUDGE RESERVES DECISION. “This matter is of such importance tliat I am surprised that the Counties’ Association has not taken it upj” commented His Honour, the Chief Justice, Sir Michael Myers, at tho conclusion of a case heard in the Supreme Court at Palmerston North on Thursday afternoon, when the legal rights of county councils to take gravel from river beds were considered. At the February sitting of the Supreme Court at Palmerston North His Honour Mr Justice Ustler granted an injunction in favour of the Pahiatua County Council restricting the Akitio County Council from removing gravel from the bed of tho Makuri stream. Since then the Akitio Council has secured a license from the Land Board to take gravel from the portion of the stream that runs through the township of Makuri. The point discussed before His Honour Sir Michael Myers were whether, even-with the license, the Pahiatua Council was not still ablo to prevent the Akitio Council from taking gravel from the stream. Mr H. F. O’Leary argued on behalf of the Pahiatua Council that the license was ineffectual or invalid and that that body could still restrain the Akitio Council notwithstanding the license. Mr Lloyd contended that the license gave the Akitio Council the right to take gravel from the river. His Honour: Is the Crown represented ?

Mr Lloyd: The Solicitor-General has expressed the opinion that this will not be necessary unless the Court rules otherwise. His Honour: I cannot say yet, and I may have to have the case re-heard. If I hold that the Crown may have rights, that the license is invalid, or that the Crown cannot dispose of the rights, tho Crown would not be bound, but the Akitio County .Council would be.

Tracing the history of the dispute, Mr Lloyd said that the bed of the Makuri River was Crown land so far as the Makuri township was concerned, and was bounded by streets, which were also vested in the Crown. His Honour: Along the banks? Mr Lloyd: Either that, or in the form of reserves. Mr O’Leary: They are only paper roads. Mr Lloyd: That is the case. Continuing, Mr Lloyd said that the other portions of the river were vested in the riparian rights of private owners. The river rose in the hills in the Pahiatua county, and each flood brought down shingle. The Akitio County was about five miles away, and had only a limited supply of gravel for its roads. The Pahiatua County had been taking large quantities of gravel without permission or license for a great many years. Two or three years ago the Akitio County commenced- to take small quantities from the river in the township area. The Pahiatua County objected, and appropriated some of the metal. The Pahiatua County then came to an agreement to sell 350 yds of tho metal to the Akitio County at 6s a yard. The Pahiatua County did not go on with tho agreement and the Akitio County proceeded, about twelve months ago, to take gravel, and legal action was commenced. After hearing legal argument, His Honour interposed that there was a portion of Mr Justice Ostler’s judgment with which he heartily concurred, to tho effect that the parties should get together and endeavour to evolve an agreement that would enable gravel to bo taken from the stream in such a manner that no damage would be caused. Mr Lloyd: I only wish that His Honour had not allowed so many costs (laughter). Referring to the Public Works Act, Mr Lloyd said that it appeared that the Crown had the power to dispose of its own gravel by license. Mr O’Leary said that it was clear that the Pahiatua Cofinty Council, as the body in which the river was vested, could restrain a trespasser, an owner other than the Crown, and a licensee other than the Crown, from removing gravel, and in respect to the two latter if the removal of the gravel would injuriously affect the flow or working of the river. Counsel quoted authorities to support his contention that the Pahiatua Council could still restrain the Akitio Council from removing the gravel. After hearing lengthy argument on technical points. His Honour intimated that he would reserve his decision, and in the meantime would confer with His Honour Mr Justice Ostler. He would also indicate whether it would bo necessary for the Crown to tender argument, and added that the caso was one that might well be argued before tho Court of Appeal. Mr Lloyd said that the Akitio County Council did not desire to embark upon more litigation than was necessary, and, if it could get what it wanted through tho present action, an appeal would not bo necessary. While the matter might be of general importance the Akitio Council was only concerned with getting the gravel. ’