RIGHTS OF THE CROWN

New Zealand Herald, Volume LXIX, Issue 21293, 21 September 1932, Page 12

RIGHTS OF THE CROWN

CLAIM AGAINST BOROUGH

ELECTRIC CABLE ON ROAD A NONSUIT ACCEPTED " This is a claim for £8 lis Id, but the amount does not indicate the importance of the matter," said counsel for the Crown in opening a case before Mr. Justice Smith in the Supreme Court yesterday. The? claim was one made by the Crown against the Pukekohe Borough Council for the cost of removing an electric cable to another position on one of the roads of the borough. Counsel for the Crown said the case was of importance because, with the growth of country towns and the necessity to widen roads on the one hand and the necessity to preserve public works on the other, the question of liability in respect of already erected telegraph lines or buried telegraph cables was constantly arising.

The council denied that there had been any interference with the cable as alleged and asserted that the damago complained of had been caused by the action of the elements. Counsel for the Crown said that in 1925 a Post and Telegraph Department electric cable wag laid underground along one of the Pukekohe Borough Council's roads. The road came to a little hummock where a cutting was made through the middle and the cable was taken up over the bank at the side and down lo the level again. It was laid about -a foot deep and about six feet in from the edge of the cutting.

Cable Becomes Exposed

in 1929 the borough council decided to widen the cutting and cut hack the bank to within a foot of where the cable was buried. The hank was left almost perpendicular and it was alleged that it was inevitable in the circumstances that after a certain time the bank should come away and leave the cable exposed. The cable did, in fact, become exposed for about 50ft., and had to be taken up and relaid in the actual road surface at a cost of £8 lis Id. The point was whether that could be recovered from the borough. It was under the Post and Telegraph Act, section 154e, that the Minister of Public Works was given power to construct, place and maintain an electric line under or along a road, continued counsel. The Pukekohe. Borough Council also had power to construct streets under the Municipal Corporations Act, section 172. 4a, but by section 168 it was provided that nothing in that Act authorised the council to interfere with any public works carried on by the consent of the Government without the consent in writing of the Minister of Public Works. All powers of local bodies over the roads were therefore subject to the paramount right of the Government over all such roads.

Counsel for the Defendant: That section does not say that. Meaning of Interference

Counsel for plaintiff said the issue was that, as a result of what was done, the cable was in danger and had to be made safe. It was a question of fact that it was inevitable ,that erosion should tako place at this spot. Actual physical contact with the line was not necessary to constitute interference. "To tako an extreme instance," said counsel, " you equally interfere with a gentleman sitting on a Btool whether you kick the stool away from under him or push him off it." The present case was analogous. Tie submitted that the borough, in altering the road as it did, had acted ultra vires.

A telegraph engineer of the< Post ;uid Telegraph Department, Denis O'Loary, gave evidence that in 1930 the cable at Pukekohe becamo exposed, and was shifted from the top of tho bank to the roadline at a cost of £3 lis Id. The Pukekohe Council had previously excavated tho bank to within a foot of tho cable over a distance of about a chain. It was inevitable that by the action of the weather the cable should becomo' exposed within a year after the council had cut the bank back. Nobody would have dreamed of putting the cable in the position in which it had been left. Evidence that he had warned borough officials of the presenco of . the cable ami had located it for them at two points was given by Henry S. Keegan, formerly post and telegraph overseer at Pukekohe. It was inevitable, said witness, that tho cable should soon becomo exposed after the council had done its excavation. Case for the Defence Counsel for the defence said it was a quite novel proposition that section 168 of the Municipal Corporations' Act put any affirmative duty on any municipal corporation. The council was tho owner in fee simple of the road, and it was ridiculous to suggest that a council could not put a waterpipe across a street without the consent of the Minister of Public Works. It was true that local bodies looked at the Crown in its interference with tho streets as something of a cuckoo in the nest.. The Crown advisers were somewhat prone to extend the prerogatives of the Crown, but recent decisions in England and elsewhere had tended to curtail these. The present action should have been a claim for compensation, and it was certain that the Crown had a claim for compensation in this case if it chose to exercise it. There was no evidence now to show that support had beon taken away from the cable, said counsel. The Crown's rights in this matter could not go further than the rights of gas companies. Counsel for the defence called the evidence of Sidney John Clews, works foroman of the Pukekohe Borough Council, to show that all precautions had been taken to avoid interfering with the cable. Witness said that the plan supplied to him and to which he worked showed the cable going in a perfectly straight line. He found it at Bft. 6in. from the fence did not see any indication that it deviated toward the centre of the road. He thought quite 3ft. of side covering was left over the cable, but it proved that where it ultimately became exposed it was 12ft. from the fence. ~ The cable could then have been put back to a safe position for about 30s. Counsel for the Crown said he was prepared to accept a nonsuit. It was not a meritorious claim if that was the position. Plaintiff was accordingly nonsuited with costs on tho lower scale and witnesses' expenses and disbursements.