KWONG LEE v. THE CORPORATION AND v. COMINGS.

New Zealand Mail, Issue 772, 17 December 1886, Page 12

KWONG LEE v. THE CORPORATION AND v. COMINGS.

TKs Worship delivered judgment in this case as follows The defendant Corporation constructed a two-foot brick culvert through an embankment on the South road to carry off the water of a natural stream whiqh runs from the plaintiff’s land to that of the defen. dant Cummings. The culvert was substantially built, of sufficient capacity, and suitable for its purpose. The defendant Cumings subsequently laid a JLS-inch pipe drain, which he connected with the culvert for the purpose of carrying the water of the stream through his land, and filled up the natural watercourse with soil. It has been contended that all natural watercourses are public drains under the Municipal Corporations Act, and. are vested in and under the control of the Council. After consideration I cannot agree with this conThe part of the Municipal Corporations Act respecting drainage appears to me to refer to artificial drains of the nature of sowers, and not to natural watercourses. This, then, is an action foe damages, the result of interference with a natural watercourse. lam satisfied by the evidence that one or more of the drain-pipe 3 in which the defendant Cnmings confined the water of the stream collapsed from defective construction, and that a subsidence of the superincumbent soil took place, which obstructed the flow of water so as to cause the plaintiff’s land to be flooded. It also appears probable that, prior to the collapse, an accumulation of rubbish in the pipes stopped the flow of water, and so caused part of the land to be flooded. So far as the defendant Corporation is concerned, no negligence and no damage, the result of their action, has been shown. But I hold negligence proved against the defendant C umings, both with respect to the accumulation of rubbish and the construction of the drain ; and judgment must go against him. The only witnesses, who have given evidence as to the amount of damage are the plaintiff and Mr Cooper, and these differ widely. I assess the x r alue of tho crops destroyed at £4O, and of the seed and labor destroyed by the floods of July and August at £ls. Judgment will be entered against the defendant Cumings for £55 and costs (£S 163), and for the defendant Corporation. On the application of Mr Martin (for the Corporation), costs were allowed the Corporation.