THE MASONIC HALL CASE.

New Zealand Herald, Volume XXVIII, Issue 8584, 4 June 1891, Page 6

THE MASONIC HALL CASE.

INFORMATION ; DISMISSED.

At the Police Court,..yesterday morning, Dr. Giles, R;M., gave judgment in tho case in which Charles Moseley Nelson and Malcolm Niccol wore charged with, " That be-' tween the 23rd April and the Ist May, they being with others the joint owners of property in Princes-street known as the Masonic Hall, by their own act and default and sufferance, did permit a nuisance to exist, namely,'a,leakage in a drain, causing offensive matter therefrom to flow on to the property of tho adjoining owner, John •Mulvihill, in street." The evidence had been taken and argument heard at a previous sitting, Mr. H. Shortland appearing for the complainant, and Mr. Cotter for the defendants. A » ■:

| His Worship said the complaint in this case was made against two of the trustees lof the Masonic Hall, on account of | a drain,' alleged to be defective, on their premises which led into the ground of the complainant and caused a nuisanco. There were two grounds of defence raised, one being that the trustees as owners were nob liable in the' matter, although the j occupiers, who consisted.of a committee of I management, might be. The other ground of defence was that proceedings could not be taken for such a matter as this under section 71 of the Public Health Act. With regard to the first objection, there was no doubt but ip common law the occupier was the person liable for management of drains (see Russell v. ■ Shenstone), but the 'Public Health Act seemed to fix the liability explicitly on the owner. ! Section 46 of the Act, the section to which Mr. Cotter had referred as that which ought to govern these proceedings, provided that on the written application of any person to a local Board that any drain, etc., . was a nuisance and irijurions to health, the local Board, by j writing, empower its surveyor, after giving notice ,to the ; occupier/ to enter upon the premises, and cause the ground to be opened, and the drain examined ; and further, if the drain were found defective the Board, under the same section, could give notice to the owner or occupier to have the , necessary works {done . within a reasonable time, and if j the person receiving tho notice ; failed to comply with it, then the local Board might, if it thought fib,' execute - such work and recover the expenses incurred in a summary manner from the owner— from the occupier, he "would point out,' but from the owner. Then, again, section 59 expressly provided that where a nuisance arose from the want [ or defective construction of any structural convenience, the notice under that section should be served on the owner. He (His Worship) supposed that an underground drain would be considered; a structural convenience. . For these reasons he considered that the information had been rightly laid against the owner. The next question was as to the proceedings. Section 71 provided that " Complaint may be made to a resident magistrate of the existence of a' nuisance under this part of the Act, on any premises within the district of any local Board by any person aggrieved thereby." The question was whether/the nuisance complained of in this case was on ; the. promises of the defendants, or whether it was necessary that the nuisance should be on their premises. ; Under the head of nuisances, which constituted a distinct part of the Act, any pool, ditch, . glitter, intercourse, privy, urinal, cesspool, drain, or ashpit so foul or in such a state as to be injurious to health," was included. iMow these words in his opinion clearly related to things which were open to the eyes, which were uncovered, and could be seen on the premises. Turning to section 46, which did not come under the same part of the Act, it would be found that, as Mr. Cotter had pointed out, it applied strictly and properly to the present case. The section read : On the written application of any person ,to a. local Board stating that any drain, &c., on or belonging to\ premises within its district is a nuisance, or injurious .to health it may by writing empower its Surveyor or Inspector of Nuisances, after twenty-four hours' notice to the occupier of such premises, or in case of emergency without notice, . to enter' upon such premises with or without assistants, and cause the ground to be opened and examine sue!) drain," etc. The section further went on to provide that if the drain appeared to be in bad condition, the local Board C should give the occupier or owner notice to repair it, and if the notice were nob complied with, the board could do the work at the owner's expense. He was inclined to think that as the word drain occurred in both the clauses he had quoted, it must in one case refer to an open drain ancl in the other to a closed one. If the drain had been an open one the complaint might have been laid under section 71, but as it was covered in the proper proceedings seemed to bo those provided by section 56. The two kinds of drains were nob to be put on the same footing, and there was a good reason for it, because, as the Act seemed to imply, the only thing that could bo . done with regard to a covered drain was to have ib opened up. In this case thore was only an inference that tho nuisance arose through leakage, and the proper course of proceeding would be to have the drain opened up, which could not be ordered under the pre : sent information. If a nuisance obviously existed the Court could proceed in tho same way as a local. Board, but a local Board would not make an order until after having had the drain opened up and examined. He could not see that the Board had any power to order that the drain should be so opened up and examined. Of course this was purely a matter of the construction of the Act; he could not be absolutely certain that his construction was the one intended by the Legislature, but it seemed to him, at anyrate, nearer than any other that could be taken. {He therefore thought that the kind of "nuisanco in regard to which tho Court could interfere was ono that was obvious and required no opening up or examination. The complainant said"that it was in consequence of tho local Board nob interfering that he was compelled to apply to the Court, bub ho had nob taken tho steps required by tho Act. Ho (His Worship) could not suppose that if a nuisance injurious to health was complained of, the local Board would refuse under, section 46 to have the ground opened up and the drain examined. For the reasons stated the information would bo dismissed with coats.