THE MOMONA CASES.

Otago Daily Times, Issue 13927, 12 June 1907, Page 2

THE MOMONA CASES.

o JUDGMENT FOB WEST TAIEIU BOAUD. On the 15th and lGth May last Mr Justice Williams heard evidence and argument in a j case brought before tlie court t« determine ! whether the West Tnieri Land Drainage Board was jointly linWo with Mi? Olokia Laud Drainage Board in connection with the claim ol Mommia settlers, who were awarded compensation Kgatuet the Otokiu Board. Mr J. MacGregor appeared for the Otokia Board, nml Mr J. F. 11. Fraser for the West Teieri Board. Hia Houor gave judgment as. follows:—T!if> plaintiff and the defendant boards entered into an agreement to join, in the cost of currying out tho work of clearing out, widening, deepening. and, where necessary, banking a stream which ceme from the district of tho defendant board and ran through the district of the plaintiff board. Certain worka were accordingly carried out under the supervision of tie plaintiff board, and in the course of earning Uiem out a dem within the district of the plaintiff board was raised several inches. Then ft flood came, and, in consequence of the level of the dam having been raised, the water was backed up and tie land of Bevml pereone above was injured. These persons proceeded ngeinst tho plaintiff board for compensation find recovered damages, it baring been established that the injury was eaueed by tlte raising of the dam. Tho plaintiff board now seeks to recover from the defendant board half of what it has had to pay in resoect of there damages and of the costa attendant on the proceedings. The worka were carried out and theagrecment wswmado under tlie powers conferred on the boards by "Tlie Land Drainage Act, 1904," so that what was done was not tortious, and if (he raisinp of the dam was done with the concurrence of the defendant board the plaintiff board would havo a right to the contribution claimed. Tho defence is that the defendant board never consented tothedain bein« raised. Moynihan's dam hnd long been ft burnin" question between the two boards. The ploiiitifi wished to maintain it. (he defendant strongly objected (o its existence. So fur back as February, 1903, a number of claims for compoDsalion were seut in to the dofoiiduiit by persons who had land in tho plantiff's district below the d?.m in consequence ef tho drairwKO works of the defendant. Apparently the elfeot of these works wns to discharge ntoro water into the canal and over the dam •than formerly came there, 'flic defendant denied its responsibility, and the claims uppoaiod io havo dropped, The minutes of tho defendant in 1904 show that it had a grievance against tho plaintiff for blocking up ouliCfa, that legal ndvico was sought as to the removal of the dam, und thnl legal proceedings wore in contemplation. Then there were conferences hc-tweeu the two boerda, and the agreement of the 3rd September, 19(11, was' executed. Tho agreement as originally brought beforo the meeting provided only for the clearing out, widening, and deepening the caiinl. hut on the motion of Mr lt'lemiof;. chairman of Iho plaintiff board, the words "and when required banking ond fencing" were inserted luid tho agreement thus amc-nded me executed. Nothing was said at the meeting about the dam. The next thing was tlie joint meeting of the two boards on the 27th May, 1905. what took plßce at this meeting is In a certain exltiil in dispute. I am satisfied, Wover, that Mr Couslon'e letter was read by Mr Grant, as staled in the minutes. After Jfr Gibson, the chairman of (he plaintiff board, had been voted <to the chair, it was the first Iking done. Probably it wan read by the olork in the pamo formal "iray t,hnt document* ore frequently rend at tho beginning of a mooting—no one paying any particular attention, but exchanging greetings and talking about the weather. Then it was decided to (teal with tho questions iu tho letter one by ono as thfy appeared. The three first questions iu tho letter appear by tho minutes to hero boon fully dealt with, but tho minute aa to tho fourth simply is! "Iβ there- to be ira embankment where necessary? Yes.— C'miod unanimously.' Now, the fourth paragraph of Mr Couston'e letter «mtsunn it iiumbsr of questions mostly relaling to the banking. Some of these were dealt with in motions by Jfr Souness, and appear in the minutes following the minute above quoted, Jlr Coupon's letter, however, contains tho epenific queston, " Is the embankment at Moynihnn's dam to he raised—if po, what height above flrod level?" Now. tho evidence, is clear as to this, that, except where the letter was read by the clorli, there was no mention of the dam at the meeting. If the chairman had genuinely brought before tho meeting •tho fourth paragraph of Mr Conston's lottor and invited discussion upon it tho dam must have been mentioned. It hr.d long been a bone of contention botv.-cen the two board?, and if there had been any suggestion that it should bo raised, thero would have been a storm of distent from the lncinbore of the defendant board. This was perfectly well known to tho chr.irman and members of iho plaintiff board. It lcoks as if it had been put from tho chair somewhat iu lhi 9 wny : " flu; fourth pr.rngTaplt of Conston's letter is pretty long r.nd asks mostly about embankments; is thero to b's nn embankment where necessary?" Ths minute show (hat was the question put t<i the meeting. Then, Mr Sounoss moved with respect to questions r.-ked by Ciuston us to Ulo method ef construction 'of the embankment?, but omitted to refer to the question of tho raising of tho num. It was resolved that It: Couston should call for tenders fur the work, and these tenders cams before another joint meeting of Ibe boards on tlio )2th June, when Mr Bryant's tender was accepted. This tender did not include raising the dam. At this mesting it was resolved that " Thu clerk write to the engineer for levels and plans of banking through Reid's and M'Kpnzie's,"—that is, the jsortions not included in " Bryant's contract," and thr.t it should I>D left 'o the Otokia Bourd to accept tenders or make arrangements to have the work done, Now, tlie dam was not on llc.id's or M'Kcnzio'* laud, but ou Sounoss'a. Here, again, there w?.s nothing to lead the defendant to beliovo that tho raising of (ho daw wa3 contemplated. The ongineer wr.3 written to, and forwarded lovolb and plans to the plaintil! which included raising the dam, and the work was carri«l oul by the plaintiff without further communication will the defendant. When, however, a demand was made on the defendant for payment of half the cost of bankng at Moynihan's dr.m the defendant did not pay. but at onco wTote for an explanation. It was rot until after this Ihr,t llio flood enmo which did the mischief. Now, the defendant at tho limo of tho agreement of September. 1904, was entered itito hr.d no reason whatever to beiicve that tho raising of Moynihnn's dam would form part of irny scheme of improvement. Mess™ Boale and Hay's report of the 11th November. 1001. to the iwo boards mentions, smongft other things, this dam, They say thai, in their opinion, it v;r.s constructed across a well-defined natural water-course. Tfcey Bay thty are undecided whether it pbonid remain as at present, hut, in order to get over that disputed point, they make certain recommendations. Certainly nothing was further from Iheir thoughts than increasing an obptruction to a natural What the defendant wanted, snd what tho original draft ot tho agreement contemplated was that tho canal should be cleaned, deepened, and widened so as to carry away the water which the condition of the cr.nnl, coupled with the blocking up of the water-course by the dam, prevented getting sway. AVhen the agreement ut tho instance of the plaintiff was nufc to inc'ude bonking whern necessary, tho defenrhiil could never be supposed to have n"en*od to n.n addition to soinithiiig which was already,» source of injury. I r.m'entirely ratified that there mis no f.sscnt on the nur't of the defendant *o the raising of tho dam. nnd that' tho members of the West Tm'eri Boprd wero quite unaware that the raising of tho dsm wn3 a uart of the echenw which they had sanctioned. Nor, in nry opinion, is tho defendant estopped by the conduct of its meinbp-3 'rran assorliiiK tli" tit did not cuiiw-ir. They did not mislead '.he members of tho plainlfi ivNird into believing t*-nt t'icy had oonsnnted. The miflcadini; "ni the other way. Tho members of the nlr.intiff bor.rd knew wo'll" crouch if they had as part of the pehetne fho raisins; of the dam thit the members o( the defendant hoard would have never pss-ontod to i*.. They could not have believed thiii thero v:a<* a conscious r. D sent on the port of tho rm>tnbr-r° of lli» defendant Imrd '.o the raisinp; of tho inn. It wn« their silence that misled tho inemlx!r<! of Uie defendant ljoarcl. tt lios upon the pKintilT who claims rontribution. to show clearly tint the particular work which caused the injury v;p.?i constructed aru! mnir.tnirc:l with th* concurrence and conpent ol the defendant. This thn. phintiff has fiiilcd to do'. Judirmeut' for tho defendant; rosts ns por scale; £0 fis extra for racond dov; flisburscmenls and witnesses' expenses to ha fixed by the registrar.