Channelling the Streets.

Oamaru Mail, Volume XXIV, Issue 7695, 12 December 1899, Page 2

Channelling the Streets.

A TEST CASE. At the Magistrate's Court this morning, before Major Keddell, S.M., the Oamaru Borough Council sued Joseph Moss for the sum of LI 2s, half the cost of channelling 22 yards of channel in Wharf street. Mr Creagh appeared for the plaintiffs, and Mr Newton for defendant. The facts were admitted, and defendant pleaded not indebted. The admissions were aB follow :

1. That petition produced, dated 24th October 1898, is signed by three-fifths of the ratepayers in respect of the lands and buildings fronting the we3t side of Wharf street, between Itchen and Wam-beck streets, and in street intersecting the west side of Wharf street between Itchen and Wansbesk streets.

2. Defendant is the Joseph Moss who signed the petition, and was at the time the said petition was signed, and still is, the owner and occupier of section 10, block 38, Oamaru town, having a frontage to weßfc side of Wharf street, between Itchen and Wansbeck streets, of 22 yards. 3. That the plaintiff, after the said petition was presented to the Corporation, constructed concrete channelling along the wests side of Wharf street, from Itchen to Wansbeck streets, and in front of the said section.

4. That the cost of constructing the 22 yirds of channelling wa3 L2 43 or more. 5. That the defendant has not paid any part of the said sum of L2 4s. 6. That the whole length of the section is ISi chains. It was also admittel that the actual cost ot the work was L 3 9s 3d.

Mr Creagh, on opening, stated that the Borough claimed under section 257 of the Municipal Corporations Act, 1536, defendant having been one of a number of petitioners who petitioned for channelling in Wharf street. Mr Newton moved - for a nonsuit. He mentioned in the first instance, apart from questions of law, that Mr Moss, in common with others who Eigned the petition, had done so on account of the filthy nature of the channel, which they considered sufficient grounds for asking the Council to take action to remove the nuisance at its own cost. Moreover, there was no loss to the Council as ib had continually to clean the drains before they were channelled. As to the law, the only section which gave power to construct channels and charge the occupiers of adjoining land was section 257, and its termß must be complied with. Section 256, which deals with the cost of constructing footways and channels gives no power to construct channels. Section 255 gives power to construct foot- | ways only, so that section 257 was necessary to give power to construct. Under that section the Council conld not charge unless it channelled the complete length of one side of a street. It was true that the ratepayers of one complete section of the side of a street could petition, but the Council could only construct the channels of the street or a side thereof. In this case it had only constructed the channels of a section o£ a side. The Council must fix by bylaw under section 256, sub-section 1, the cost). No bylaw had been made in this case. Mr Creagh, replying, contended that in the previous Act no mention was made of channels, although ib contained sections similar to 255 and 256. The word ' channel' was now inserted in section 256, and he contended that under that section the Borough, of Its own motion, could construct channels and fix a charge by by-law—especially as under section 234 they had general power to construct streets. Section 257 was another method of constructing channels, namely, on the petition of ratepayers. It had nothing to do with section 256, except as to how the cost was to be apportioned among the occupiers. Under section 257 the amount which could be recovered was fixed at half the actual coßt. No by-law was, therefore, necessary. Then reference had to be made to sub-section 2 of section 206 to determine the method of apportionment. As to the contention thab the whole length of a side of a street musb be channelled before the Council conld recover, he referred to the section itself, which said that on a petition of three-fifths of the ratepayers of lands fronting any street, or any one side of a street, throughout any complete section of Its length, the Council may construct the channels of '' Buch street or side." He contended that " such atreet or side" musb be read " Buch street or Buch aide," and the only Hide which had been referred to waß the aide of a Btreeb throughout " any complete sec« .tion of its length." ©Mr Newton, replying, said "such aide" could nob mean " section of a Bide." Per« haps the Legislature meant this, because if they did not the ratepayers of a section could ask for the channelling of the length of a whole side of a street, bub there was no absurdity even in that. Whatever waa meanb, the word "side" waa used. Section 277 waß necessary, because, under section 256, although the fixing of the cost) of channelling was dealb with there was no express power to construct. His Wotßhip reierred his decision*