COMPENSATION CLAIM

Otago Daily Times, Issue 21521, 18 December 1931, Page 4

COMPENSATION CLAIM

CASE AGAINST CORPORATION LENGTHY HEARING ENDED ADDRESSES BY COUNSEL After a hearing extending over eight days, the conclusion was reached in the Supreme Court yesterday of the case in which a claim for £1650 is made against the City Corporation by W. J. and M. H. Reid for the depreciation of the value of their property at Berwick, allegedly due to the operations of the corporation in erecting a dani on the Waipori River for the storage of water. Mr Justice Kennedy presided, and was supported by two assessors—Mr M. Stevenson for the claimants and Mr James Begg for the corporation. ADDITIONAL EVIDENCE. Sidney Jones, an employee of the City Corporation, gave particulars of gauge readings in a backwater of the river near the Reids’ property. The city electrical engineer, Matthew C. Henderson, continuing his evidence, said that in 1924 400 cnsecs had been let away at night, and the following morning the river had been practically in a flooding condition. This test had been made to find the capacity of the river. Witness produced the diary of the late Mr B. B, Couston to support this statement. In answer to counsel for the plaintiffs, witness said that ho believed that anything substantially over 400 cnsecs would cause a small flood somewhere. The erection of the dam had reduced floods very materially. The meter, which had been ordered in 1923, and which was to be placed in the new dam to record the flow of the river, had arrived six or seven years ago, but -had not been installed because of the alteration work being carried out at Waipori. Edward Fletcher, Roberts, a civil engineer, referring to the gauge that had been previously mentioned, said that he had placed it in a backwater so that the fluctuations in the surface level would be evened out. The fall from Petrie’s Creek just above the Reids’ property to the Berwick road was approximately nine feet. He discovered a culvert eight chains above the Reids’ property, the top of it being submerged in Petrie’s Creek. He sounded to find the bottom of the culvert and discovered that it was three feet below the water level, the creek at the time being very stagnant. "He had formed the opinion that Petrie’s Creek had silted up since the culvert had been put in. He thought that the creek could be considerably deepened. Referring to the willows on the bank of the river witness said that he did not agree that they were an obstruction only in times of flood. During mining operations they would facilitate the deposition of silt. The roots tended to grow into the river and raise the bed. These conditions would tend to reduce the rate of flow, which would also tend to accelerate the deposition of silt. He had recommended that overhanging branches should be cut off, the trunks to be cut back flush with the bank, and this had been done. This would increase the rate of flow, creating a scour.- Experiments which he had conducted had shown that a scour had taken place, and he expected it to proceed further up the river. The original plans of the Waipori River made in the sixties had shown it to be very much wider than it was at present. He had on several occasions seen evidence of recent silt deposits on the Berwick flats. He had had occasion to search for pegs put in in 1915, and had discovered that they were covered to an average depth of 16 Inches. They were right on the river bank. He had seen fence posts buried to within a few inches of the top up to two chains of the river. A danger of the silting up of the river was that it might change its course. Witness compared cross-sections of the river made in 1915 and 1931. He agreed that silting had practically ceased since the building of the dam in 1922. From 1915 to 1922 there had been an average depth of nine inches of silting. Proportionately, there would have been an additional 10 inches of silting from 1922 up to the present day. That saving atoned for the increased level caused by the operation of the dam, but had it not been built the position would have been becoming worse. To counsel for the plaintiffs witness said that he agreed that water on the Reids’ 36-acre flat came from the river. He agreed that culverts did sometimes sink. The deepening of Petrie’s Creek would reduce the ground water level. This concluded the evidence, counsel for the corporation handing in a copy of the findings of the 1917 commission. COUNSEL’S ADDRESSES. Counsel for the corporation, in addressing the court, said that it must be apparent that a great deal of difficulty had always been associated with the Waipori River. There had been from, time immemorial a raising of its bed and banks. He had been anxious to show that in comparatively recent years there had been considerable evidence of the raising of the bed and banks. This had been the situation that had prevailed at the beginning of this century. Into that state of affairs had been introduced a new and man-made factor in the mining operations. All that the mining operations had done had been to accelerate in a marked degree what Nature had been doing/ in the same gradual process. Immediately it had become apparent that lands in the valley were menaced by increased susceptibility to floods and the rise of the water table in the land. It was true that probably the Berwick settlers bad not appreciated the latter menace at that time, and that they had been more concerned with the serious menace of flooding. These two menaces bad then existed, and had been developing due to mining, the willows, and the circuitous course of the river. It was important to notice that not only had these factors been raising the river bed at a greater rate but also constructing it with a consequent rise in the water surface. Mr Roberts’s evidence on that point bad been conclusive, and he bad shown that the river had been reduced practically to one-third of its former width. The raising of the level of the river had caused the raising of the water table in the Reid’s property. It was, however, a fact that long prior to 1924 the water table had been approaching the danger line, and the evidence had shown that* the danger had manifested its presence. All of the Berwick settlers were in the poistion of claimants and were interested parties, and it had been impossible for the corporation to get satisfactory evidence from the people who had a'closo knowledge of the land. Due to the narrowing of the river and the raising of the bod had been the spectacle of the water table rising to the surface. This had become very manifest shortly after 1924. Not unnaturally the settlers had attributed this to the recent alteration in the behaviour of the river, and they had fallen into the habit of blaming the corporation for all its troubles. Their sense of grievance had not boon mitigated by the fact that the negotiations between themselves and the corporation had been protracted. The plaintiffs claimed £1650 for 36 acres, or £46 an acre and the right to retain the land. All through the plaintiffs had allowed themselves to exaggerate out of all reason. Counsel referred to the evidence with respect to the value of the land, and claimed that it had been shown to be worth only £432. The claim was i so framed that a disability over the

whole run was claimed for. It would no doubt be claimed that the land was an integral part of the whole. Counsel submitted that the piece of land in question was so trifling a proportion of such a run as to be useful only as a holding paddock. Two of the previous owners in particular had not used the paddock for fattening. The atitude of the Reids in this case was typical of their attitude in respect of another claim when a further area of the run was about to be submerged. They had at first claimed that they had suffered a loss of £SOOO. Then they had stated that for peace sake they would take £3OOO. When it had come to an actual settlement they had taken £IOOO.

' His Honor: One of tl;e commission points out that in some cases in the past inadequate compensation was paid. Counsel for the corporation replied that that had been in connection with mining operations. The Government had run x'ough-shod over the farmers in making Waipori a sludge channel. It was admitted that the farmers in that case hal been miserably compensated, but that had been no affair of the corporation. The point he wished to make was that the Berwick settlers had brought into the case considerable bias. They Lad regarded the results of their claims ns gold to be availed of and had not taken the care to drain the surface water. They blamed the corporation for everything. The court would have noticed that the corporation had not called any evidence as to the value of the land. It would have been futile to expect any man to make a guess at what the land had been worth in 1024. The evidence as to value was not of groat importance. The main question was to what extent had the injurious effect been caused by the corporation. Reid, who had at the time of taking over the run been a young man, had made the novel and injudicious experiment of fattening sheep on the land and had been somewhat lucky. He had fattened 400 sheep in the first year, but in the second year the number had fallen to fiO. These had been sold in April of 1920, but, according to his own evidence, the wet condition had not developed until the end of that year. With respect to the willows counsel submitted that it was clear from the findings of both commissions and from the evidence of Messrs Roberts, Henderson and Williams, that the removal of the willows had resulted in a lowering of the bed of the river. Both sides agreed that the r'emoval of the willows root and branch would lower the water table. Mr Williams was opposed to the removal of the willows because he feared erosion of the banks. These willows had been planted for the express purpose of preventing erosion, but this had produced a deleterious effect in the form of the raising of (he banks. The fanners must choose between two evils. The mining operations had accentuated the raising of the bed and banks, and the corporation’s view was that it was these circumstances, and not its own operations, which had raised the water table. The fact that there was now developing erosion as a result of the removal of the willows seemed

to prove the fact that they had narrowed the river channel, and this was strengthened by the surveys of the sixties and seventies. The willows had been removed in July, 1930, and it was not to be expected that there would be an immediate improvement. The corporation had not been responsible for the planting of the willows, and he placed the greatest possible weight on this consideration. The corporation had spent £I4OO on the removal of the willows and that was evidence of its bona fides and its consideration of the interests of the settlers. It had also built a dam which had taken the place of the silt trap recommended by one of the commissions. This trap had been effective since the end of 1922. Given a little more time the conditions on the flat would be immeasurably improved. Counsel dealt at length with the effect of the dam on the flow of the river, stating that the corporation merely let out what had flowed in, and for long periods when the dam was full the natural flow of the river was not interfered with. That was a fact that had not been sufficiently appreciated by the claimants. The root cause of the trouble had been the silting up and the growth of the willows. The evidence showed that the surface drainage had been neglected. It had been forgotten in the contemplation _ of the larger vision of the City Corporation as being comparable to the El Dorado of the Upper Waipori Valley. The only way to lower the river was to cut the willows out “ roots and all,” and the settlers would have to decide whether they preferred the risk of erosion to a high water table. Against the damage caused by the corporation, which amounted to a few pounds, must be set the betterment resulting from its control. That betterment was tremendous, consisting of the reduction of floods and the prevention of silting up. To that the corporation attached the greatest possible importance. Counsel for the claimants, in opening his address, referred to thq findings of the commissions of 1917 and 1920, which ho stated made no reference to subsoil drainage. What had concerned the commissions was that land which was valuable for agricultural purposes could only be used for pastoral purposes because of the danger of flooding. The tampering with the river by the corporation had had the effect of raising the water table. In other words, the changing of the habits of the river had changed the habits of the water table. It had almost been suggested by the corporation that if the case had been delayed sufficiently it would be shown to be its views. Why was the case not bcin^, heard later? Counsel for the corporation: Because yon brought ns here. Counsel for the claimants replied that it had not been due to any action by them that the case was being heard in 1931. There had been a mass of sworn testimony that within a year or two years of the corporation’s control the claimants’ land had first become affected in a way that anyone could observe. Counsel denied the suggestion that the evidence

had been vague. Where was the human being who had corrected it? On sworn testimony the operations of Nature on -the water table had been beneficial, andat the same time as the corporation had taken over they had ceased to be so. The dam storage prevented waste of high and flood waters and effectively distributed them through the year. In times of low river the settlers were deprived of water. It had obviously never struck Mr Bfendcrson that he could do any harm in sending the flood waters down between the-banks. The whole of the officers of the corporation appeared to be filled with the idea that they deserved great credit for having saved the settlers from those floods. But against this was the effect of the regulation of the flow on the water table. The silt had been lawfully deposited in the river. The willows had been planted in a proper way to protect the banks. The corporation had been authorised to interfere with the river on the condition that it paid for any damage that was caused.. How could it say that it should pay less compensation because the bed had been raised? How could it be now said that the willows were wrongfully there? How could the court adjudge the Taieri River Trust as responsible for having done this and that without hearing it as the local body concerned? The existing conditions about the willows must be assumed to be legal and proper. What the corporation had to do was so to handle the river that it caused no damage to anyone. There was also this point, that it was a most extraordinary coincidence that two causes (the deposit of silt and the willows) had coincided to produce a marked reversal of Nature just about the time that the corporation’s control had made itself felt. In saying that the removal of the willows would lower the water table counsel for the corporation had adopted the character of a witness rather than an advocate. Ho had not produced a witness to say anything of the sort. The real cause of the recent improvement in the land was patent. It was the recent low level of the river. The evidence showed that. The change due to the removal of the willows had been extraordinarily late in coming. Counsel for the corporation had loyally praised his client for its philanthropy in cutting the willows. Obviously the reason for its action iu spending £I4OO had been that it hoped that the willows would he found to have a great deal to do with the trouble. It had spent £I4OO in the hope that it. would not have to pay considerable sums in compensation. With respect to the alleged neglect of surface drainage the common sense of the experts sprang readily to the eye. What was the use of spending money in tinkering when the problem could only bo overcome by tackling the difficulty of subsoil drainage. This was not a test case. There were certain general questions involved, and it was better to fight one case in the court than 24. This case, however, must be considered on its own. Stress had been laid on the question of betterment, but what was the ' use of protection from floods when on account of the high water

tabic nothing would grow on the land. In the earlier stages of the case he could not help detecting a disposition to arouse prejudice against the Berwick farmers on the ground that they had asked for protection from flood in 1917 and now asked for something else. He was glad to notice that counsel for the corporation had settled down to attempt to assist the court. At another stage one of the Reids had been called upon to submit letters referring to another piece of land 101 miles away. This, however, was quite irrelevant. The corporation had reduced the compensation to the smallest dimensions, showing that they were hard people to settle with. So great had been the forethought of the corporation’s solicitors that they had made a desperate attempt to have included in the deed of settlement a clause which, if it had been allowed to remain, would have blocked the claim now before the court.

His Honor formally adjourned the court until noon on Monday, stating that if the court was then able to give its decision counsel would be advised.