The Inhabitants of the Taieri Road District v. Smith and Another

Otago Witness, Issue 1652, 21 July 1883, Page 19

The Inhabitants of the Taieri Road District v. Smith and Another

This case was heard at the Supremo Court on Wednesday, before his Honor Mr Justice Williams.

Motion for writ of prohibition. Mr Denniston supported the application ; Mr Stout opposed on behalf of Mr John Smith of Gladfield.

The action was heard in the Resident Magis* trate's Court, Dunedin, and was in the nature of a claim for £50, at the instanoe of Mr Smith, against the Taieri Road Board, for damage to his property through the alleged negligence of defendants in not clearing out a ditch constructed by them. In giving judgment, Mr Carew said : " The water in the ditch would be partly the drainage from the land of the road, but principally fmm plaintiff's land in a ditch which passed over part of his land, and connected with and brought away drainage from the main road. The ditch in plaintiff's land appears to have been a long timo there, and part of it, if not made by plaintiff, was kept by him bo as to oarry water over his land ; and the defendants several years ago constructed a culvert to conduct the water from

the ditch in plaintiff's land into the ditch at the roadside which has become choked. Among other defences, it is contended the plaintiff caused the damage to his crops by conducting or allowing the water to be conducted through the ditch on his own land ; that he had no right to discharge it into the culvert, and that the defendants are therefore not responsible. I cannot see that the defendants can take this objection, because the Board is a party to the diversion of the water by constructing a culvert and deepening the ditch conducting the water from plaintiffs laud. The defendants, in my opinion, are liable for the damage caused by the overflow of the ditch and the obstruction of water-flow." Judgment was accordingly entered for £20, and the defendants, in accordance with leave reserved, now moved for a writ of prohibition. After argument, his Honor reserved judgment.