CAMPBELL V. DRAINAGE BOARD.

Otago Daily Times, Issue 17035, 20 June 1917, Page 7

CAMPBELL V. DRAINAGE BOARD.

THE APPEAL DISMISSED. In'the Supreme Court yesterday Mr Justice Sim gavo judgment in the case of Mrs Mary Campbell v. the Duncdin Drainage and Scwcra.go Board, in which tho plaintiff appealed from tho decision of tho magistrate. His Honor 6aid : ' The appellant in April, 1916, was the owner and occupier of a property in Heriot row, Duncdin. In that month tho Drainage Board by its servants entered on this property and laid a drain therein from an adjoining property belonging to Mrs Dick, and connected such drain with an existing drain on the appellant's property, such last mentioned drain being connected with the sewer in Heriot row. Tho appellant alleged that this was a trespass, and claimed to recover damagos from the respondents. The macristrato (Mr Bartholomew) held that the Drainage Board had acted within its statutory powers, and gave judgment for tho respondents. .If tho appellant's property had not been drained, it is clear that, by virtue of sections 25 and 26 of " The Dunedin District Drainago and Sewerage Act, 1900," and section 12 of tho Amendment Act of 1907, the board would have boon entitled to construct a drain-in-commor through the appellant's property for _ th( purposo of draining that and Mrs Dick't property. As, however, the appellant') property was drained in April, 1916, thes< sections did not apply to tho case, and thi respondents rely on section 25 (sub-scctioi 7) of tho Amendment Act of 1909, and see tion 15 (sub-section 3) of tho Amendmen Act of 1915 as justifying what was don in tho matter. Sub-section 7 of sectioi 35 of the Act of 1909 sives the board cei tain powers with regard to tho use of ai existing drain on a property -when it _i proposed to construct or lay a drain-in common for the benefit of adjoining pre perties. Sub-section 6 of section 15 of th Act of 1915 enacts that this sub-section shall apply to the case 1 , of two premises on of which is served by an existing drait Tho determination of the appeal depend on what is held to bo tho proper conetrut tion of thi3 provision. In order to ascei tain the intention of tho legislature it ; necessary to consider what the board' powers were under sub-section 7 before th Act of 1915 was passed. It is clear, I thinl that before that sub-section could appl there must have been at »east two pre perties which wero to bo served by the pr( posed drain-in-common and a third propert on which was an existing drain with whic tho new drain_ was to bo connected. Thi was the position under sub-section 7, an it seems to me that the only way in whic any reasonable effect can le given to tl provision of tho Act of 1915 is by holdm that tho powers conferred by sub-section may be exercised in the case where tl: board proposes to deal with tho drainag of two properties only, one of which served by an existing drain, and that f< the purposo of draining the undrained pri pcrty tne board is entitled to connect tl: new drain with tho existing drain on it other property. Mr Adams argued that, J ■view of the wordi with which sub-sectic 7 begins, tho powers _ conferred there! could only arise when it was proposed 1 construct a drain-in-common, as defined I the Act of 1909, and that ihere could ni bo a drain-in-common when only one pri pcrty was to bo drained. That doubtle was tho position beforo the Act of 19! was passed, but in the cases to which thi Act applies the language of sub-sectic 7 must be modified so as to give effect i •what appears to havo' been tho intentic of the Legislature. To be_ held otherwi would be to make sub-section 3 of eectk 15 of the Act of 1915 quite ineffectual, ai the court should not adopt a constructk 'which will produce such a result unlc tho language is absolutely intractable (Si mon v. Duncombe, 11 A.C., 627.634). The 16 no such difficulty here. All that is nece wiry is to treat tho expression' "drain-i common" in sub-section 7 as now intendi to include the case of a drain to be co structed m ono property, and then to 1 made a drain-in-common by being connect* ■with the existing drain in the adjoining pr perty. I think, therefore, that the su section in question ought to be construi so as to .authorise what was done in tl present case. I agree with the magistra in 'thinking that the incorporated provisio of tho Land Drainage Act ought not to 1 construed as limiting the powers confer.r in terms on the Drainage Board by its ov statute. These provisions appea? to ha been incorporated for tile purpose • enabling tho board to act in cases where had no power to do so under its own statu! The argument that the construction n< put on th 6 statutes has tho effect of depr: ing tho appellant of the right to compenf tion to which she would have been entitl< had tho matter been dealt with under tl Lund Drainage Act is not entitled to mui weight, in view of the Tact that so mai of the powers conferred_ on the board m bo exercised without giving anjr right compensation. In cases of drains-in-comrn constructed under tho powers conferred sections 25 and 26 of the Act of 1910 a' section 12 of the Act of 1907, easemet aro created by the board's operations, b it is not suggested that there is any rig to compensation in these -ases. In pri ciple the present case is similar to the: I think, therefore, that the decision of t magistrate was right. His judgment affirmed, and the appeal is dismissed wi coets (£6 6s). At tho hearing of the appeal Mr Adai appeared for Mrs Campbell, and 1 Stephens for.the board.