ESCAPE OF WATER

Nelson Evening Mail, Volume LXXII, 18 April 1939, Page 8

ESCAPE OF WATER

DUNEDIN CITY CORPORATION SUED APPEAL COURT HEARING WELLINGTON. This Day. legal argument as to whether the Dur.cdin City Corporation was liable for damage caused to goods in a basement by a leakage of water from the mains under Princes street was heard in the Court of Appeal yesterday. Tht action, which was partly heard by the Chief Justice tSir Michael Myers; in Dunedin, was brought by Irvine a.id Co.. Ltd. The amount vSjimed was s' 094 2s 4d. The case was moved by ctvent into the Court of Appeal. M" H. Brash. Dunedin, appeared for p’aiutiff. and Mr A. M. Hagsitt. Dunedin. for defendant corporation. Mr Brash said that in ordinary circiimslance; under the well-known rule of Ry'ands v. Fletcher, any person was liable for damage caused by the '•snap? of water from his land on to the land of another. To that rule there was no exception where the water was brought on to the land pursuant to stalutrrv authority and where the es'’•w was not caused bv negligence. But. to that exception there was a fur*..* or exceotion where the statute autbowsing the conveving of water cor- < ■’ d a “nuisance” clause such as was contained in section 173 of the Municipal. Corporations Act. 1933. Mr Prash said that in England there was x o doubt that the corporation would be liable in the circumstances before the Court, but in New Zealan I the ,- e were a number of decisions at vrviaoee with the English authorLiw,. The effect of the New-Zealand authorities was that the word “nuisance” in section 173 meant a public and not a nrivate nuisance. He contended that those authorities were wrorglv decided should be overruled. The defence admitted the damage but .said that the corporation was cmuowered bv statute to construct and maintain waterworks, and was not liable in law for damage caused bv the O'' ape of water from the nines unless caused bv the np<?l>«o>npr> of the eorporation and that in the absence of negligence on the nart of the corooration the statement of claim disclosed no ground of action against the corporation. There wa« nothing a v out Ihe or ’-

nv'ses that would enable them to foretell that thev would he flooded bv citv mains, and nothing that rendered them cr 'eciaT , v lioble to flooding, except that the cellar below the level of the Thp \ v ' 11 he continued to-dav. The Court consisted of the Chief Justice. Mr Justice Ostler. Mr Justice Smith. Mr Justice Fair, and Mr Justice Johnston.