THE RAILWAY DEVIATION.

New Zealand Herald, Volume XLVII, Issue 14391, 9 June 1910, Page 6

THE RAILWAY DEVIATION.

-■■~'A LEGAL OPINION. LANDOWNERS' REMEDIES. ENTITLED TO SUE THE CROWN. An interesting legal opinion regarding the western deviation of the North Auckland railway has been given by Mr. R. McVoagh, of Auckland, at the request .of Mr. Thomas Coates. Mr. Coatee stated the following case for Mr. McVeagh's opinion: — By the Railways Authorisation Act, 1902, the Governor was empowered i v om time to time, in the name and on behalf of His Majesty, to undertake or enter into contracts for the construction of the railways mentioned in the schedule to the Act to the extent specified in such schedule. The schedule contained the following: — "Name of railway: Helensville Northwards. Extent authorised: An extension from a point on the southern boundary of section 8, Block XVI., Otamatea survey district, to Maungaturoto. Length, about 23 miles." 'The Governor subsequently, by a proclamation, defined the middle line of the railway. By the terms of the proclamation the" lino would have been carried to, or to the vicinity of, the township of Maungaturoto. By a later proclamation the 'Governor revoked his former proclamation and materially altered the direction of the line. The alteration was of such a character that the line was carried a great deal to the west of the course defined in the first-mentioned proclamation, and instead of terminating at the township of Maungaturoto terminates in the district of the same name, but at a considerable distance from the township. ' The construction of the line along the altered route necessitates the building of a railway bridge at Young's Point to enable the line to be carried across the Otamatea River, which at the spot where it is proposed to throw the bridge across and for a considerable distance higher up the river is navigable for vessels of the scow type. It is intended that there shall be no opening "span in the bridge. The result will be that the whole of the river above the bridge will be closed for all but the smallest class of vessels, such as motor launches. Mr. 'Coates owns land above the bridge, but it does not abut upon the river or any of its tributaries. He has access, however, by a road to the* river above the projected bridgo, and if the bridge is built as proposed, ho will be unable to ship from his land a large quantity of stone which can be quarried upon his property, and for which, owing to the excellence of its quality, there is likely to be a large demand. In short, the construe tion of the bridge in the manner proposed will materially reduce the value of his property owing to the practical closing of the/ waterway. Mr. McVeagh summarises his opinion of Mr. Coates's rights in tho circumstances as follows:—1. That a deviation of the. railway of such a character that the township of Maungaturoto will not be a terminus is unauthorised. 2. That another terminus cannotas has been attempted— created by Order-in-Council, and that the consent of Parliament is necessary for such a purpose. 3. That the construction of a bridge across the Otamatea River in such a manner as to obstruct the navigation thereof by the class of vessels that used to navigate the same would be a wrongful act, for which owners of land abutting immediately upon the river above the proposed bridge would be entitled to maintain a suit for damages against the King under the Crown Suits Act, 1908. 4. That even if the construction of .such a bridge were lawful such owners would be entitled to compensation under the Public Works Act, 1908. 5. Assuming the construction of the bridge to be unlawful, that an injunction could be obtained restraining the contractor and workmen from building the bridge so as to interfered with the navigation of the river. 6. That landowners whose property was being entered on for the construction of the deviation would likewise bo entitled to obtain an injunction restraining the contractor and workmen from trespassing thereon.