Judicial.

Otago Witness, Issue 1499, 7 August 1880, Page 14

Judicial.

SUPREME OOURT-IN BAMOO. Wednesday, 4th August. (Before his Honor Mr Justice Williams.) AITCHESON (APPELLANT) V. THE CHAIRMAN AND COUNCILLORS OP THB WAITAKI COUUTY COUNCIL (RESPONDENTS). A case on appeal from tho .Resident 'MafcisfcMte's Court, Oamaru. Mr R. Stout appeared for the appellant, and Mr Jamea Smitk for tho respondents. Mr Sroufc, ia addressing the Court, stated the nature of the case, tho licks shown being — that there was a drain flowing through the property of the appellant, and that it overflowed his land, and that this drain was a natural watercourse. The question for decision waß whether the Wairaki County Council were bound to make this natural watercourse sufficient to carry off flood- water. Mr Stout contended that under sections 165 and 166 of "The Public Works Act, 1876," the duty was cast upon the Waitaki Council to construct and repair all I public drains, and that as the watercourse was a public drain, it was the duty of the respondents to make it auffioient to carry off all water. Ho alao relied on Bections 184 and 185 of tbe Counties Act, and sections 176 and 85 of the Public Works Act, and on tho following cases :— White v. Hindley Local Bowd, 32 L.T., U.S., 460; and Corporation of Bathurst v. Macphersou, 32 L.JEI. Appeal Cases, 256. The learned counsel also contrasted the provisions of the New Soufch Wales statute No. 12, 1807, and XL and XII. Viotoria with tho iNow Zealand statutas. Mr SjnUfy in replying fco Mr Stout, said.

that the very clearest authority for the position for which his learned friend contended, because of its absurd and oppressive character, The position contended tor by the other side was no lesß than this : that by virtue of certain flections of the .Fumio Works Act there was thrown upoa the public bodies, the County Council?, the duty of rendering Berviceable, as public drams all the natural watercourses withm the limits of their jurisdiction which are naturally insufficient to carry all the storm-water, and so to render persons whoße land adjoined such wateroourses protected from injury. Surely the clearest possible language expressing suoh intention on the part of the Lugis- ~ lature should be found before so wide a V s conclusion was drawn The caßes oilod, he submitted, did not touch the question. W hat was ruled in the authorities was that where an artificial work was suffered to get into suoh a state of disrepair that private parties suffered, then the public body was liable ; the liability arising from the circumstance that the Legislature had remitted to public bodies authority to construct artificial works, and upon that power being exeroised the common law threw upon the public body the duty of maintaining suoh works in such a state of repair, and of constructing them so efficiently that no damage should be caused by them ** to private persons. Such oases stood upon distinot and intelligible ground, but here his learned friend sought to throw upon tho County Council a responsibility which could only attach to them with regard to drains whioh they as a public body caused to be constructed. In suoh cases the Court would always adopt the more reasonable construetioninpreferenoe to one whioh carried theconsequences be had referred to, and would even Strain the meaning of language if necessary for the purpose of escaping absurd and op pressive consequences. In this oase, however, he submitted that there was no occasion for straining the language, but that by its natural construction nothing more was meant than that the making of drains and their repair should fee a matter under the jurisdiction of the County Counoil. After arguing the matter at some length, the learned counsel also contended that the respondents were entitled to succeed on the ground that the preparation of a map showing all drabs which had not yet been prepared was, under the Act, aoonditionprecedent to the matter upon which the ap pellant relied. Mr Stout replied. His Honor said : I will take time to consider the matter. I have no doubt that if the question were put to the Legislature they would Bay that the? never intended to put a burden of the kind upon the County Councils; but, unfortunately, the Legislature have a way of saying what is not meant, and this may have been done in the present case. However, I shall take time and look through the Act strictly before coming to a decision. — Judgment reserved. The Court then rose.