THE TAIERI DRAINAGE CASE.

Otago Witness, Issue 2201, 7 May 1896, Page 11

THE TAIERI DRAINAGE CASE.

REFERENCES AT TAIERI COUNTY COUNCIL. At Friday's meeting of the Taieri County Counoil the case of the Solicitor-general v. Smith was referred to, the matter being introduced by the .reading of the following letter from the county folicitors (Messrs Smith, Chapman, and Sinclair) :— " As you will have seen by the published jadgment, Mr Justice Williams has decided against your council in this case. This judgment may, of course, have the fcfftcb of impoiing on the county still greater and difficulties than it now has to deal with. No indication vran given as to how the council ought to deal w:th the water in question, and the only suggestion we can make is to adopt whichever of the suggestions the county engineer recommends." The Chairjcan said : As you are aware, our inspector (Mr Whyte) reported that water was flowiug from an embankment on Smith's property on to Duke's road, and thereby causing a serious damage to the road. A full meeting of the council visited the place, and agreed unanimously that a nuisance had been created on the road and that action be at once tf.ken to have it put a stop to. Our solicitors were applied to for advice on tb.B matter, and they appl'ed to the efl>et that wafeer litigation was very uncertain, and they could not recommend proceedings to be taken unless the council were pattsfiea thnt a nui&ance bad beea committed on the rosd, in whioh case the counoil would bs justified in taking action. The conncil being unanimous on this point, instructed myself, as chairman, to take the necessary steps to abate the nuisance. For this purpose Mr Smith was approached both by letter and verbally, with a view to an amicable settlement of the matter; but- he would consent to no arrangement but the casting of a drain down the side of Duke'a road to carry the miter. This the council considered a diversion

of water for whioh it was not prepared to take the responsibility, and it was decided, to test the oaso in the Magistrate's Court. Oar solicitors, however, discovered that Mr Smith made certain charges th»t water had bgeu diverted and concentrated on to his land, whioh placed the case beyond the jurisdiction of the Magistrate's Ooifir, and they advised th*t th« case be taken direct to the Supreme Court, go as to avoid expense and waste of time, as it would require to be settled there ultimately. This the conncil agreed to. I now gave the matter a great deal of time and attention so as to beooma minutely acquainted with all the particulars of the case. I traversed the ground carefully and co'naulted every person whom I was led to believe could give any inforas to the original flow of the water, and j obtained undeniable proof of the existence of two continuous creek* which took their rise | above the main West Taieri rSad 1 and carried all the drainage of that block of land between the Silverstream and Ouke't road through the Church Trust property and through the land owned by Mrs Smith — namely, the dear creek, whioh took its rise in a swamp n«ar what is known as Mr A. Barren's slaughterhouse paddock,, and the Irony creek which carried a Urge ! quantity of the Mill qjreek water thorough Findlay's land across the Main road at Fiudlay'a corner and down the plain past the bouse now ocoupied by Smith. When the Main road was | formed to Outram, this Mill oreek water was . permanently out off and turned into another^ 'watercourse in the direction of Qufrana, and ' I away from Smith's land altogether. There can ' be no doubt that this oreek (which isjtill 3ffc ; deep where the land ,has not been cultivated) ! effectually .prevented any surface water from ' flowing to FindUy's corner and carried it down I the church land and through Smith's land. I ' found that Mr John Fmdlay in draining 'his i swamp land had convoyed the. water partly in pipes and partly in open drains, the pipes having been -pub in •in marchy portions where the ditch would not remain open. These drains, two in number, flowed directly down the plain at right angle* with the Main road. The water from these drains w*b received by the Maia road ditch, and panged through a oulrert on the Main road, ' constructed by the Provincial' 'Counoil, ' near the course of the Clear creek, j and thence by a cut drain flowing parallel ' with the Clear creek to Smith's laud. Apparently no opening was considered neces- j sary at the Irony creek. I found that the em- j banfcmant raised "by Mrs Smith across .the upper side of her property was 2£ft high near' the middle of her property and funning out to nothing "at either end. The bank, beiug as nearly as possible level on the top, showsd that a barrier had bteu raited across a hollow 2£ft deep, the result of whioh -was to impouad the water from the Clear creek drain on about 15 acres of church laud and then discharge it on to Duke's road, down which I found th& water flowing in a stream 3£ft wide by Biu deep in the centre. Still, to make tally sure that our case was a safe one, I iavited the oouaty solicitor (Mr Chapman) and the county engineer (Mr Hay) to accompany me over the ground, when they both agreed that ~the oase was a sound one, and suggested that a* Mr Murdoch, the le see of the church property, was a join sufferer ho should also ba a joint proßecutjr. With the approval of the members of the council I approached Me Murdoch, and obtained his consent to join in the action. Gentleman, you are aware- that the case has been discussed in the Supreme Court, with the result that a verdict h&a been given for the defendant Mrs South. A number of old settlers were examined who knew the place in | early days before roads or ditches were constructed, and their evidence agrtied that the water on this land flowed down the plftin in » Bouth-westerly direction until it waa absorbed I by the Silveratream somewhere above tfee Riccarton road. Local remiuiscbncen, however, appear to have no weight when m&t by test oases from other laud*. This appears to have been observed by f:hi defence also as fcbe case went ou, as eight of their witnesses were not j called on. Counsel i'or the defence eeemed aßxtoiw to mix Mr Findlay's name up with fcho 'action as much at possible, making it appear that; the County Council was fighting a battle on his behalf, aud in this they seem to have been ! somewhat successful, as his Honor in giving judgment begins with Findlay'ei name, and > describing his action in biukkig his land, ex- ' plains : " That the effect of these operations was ' to prevent the. floo.l water from Silrerstream aud Mill creek, which theretofore had flowed over the land below (including the land now owned by Mrs Smith) from coming there any longer." (I may here mention tbat the evidence fully showed thab this aclion of Mr FiudUy's was the means of enabling the owners, below to reclaim their" land, which before was almost valueless.) Further on, his Honor says : "Id t state of nature flood' water from these creeks, and also the surface water arising from rainfall, as Mr«^Smith's land lieslower j^han Findlaj'fl, would JKave passed' from Findlay's land on to Mcs Smith's." This is' douotlecs correct, as the fall from Findl*v's land to Smith's, ,'apcorriiog to Mr JH«.v 585 8 pkn, must be over 12ft, and they are only 31 chains apait ; also, the fact of two watercourses existing between the properties shows that the scdur of water must have been considerable. Of these two creeks— namely, the Clear oreek/ and the Irony creek, — which traverse the Church Trust land between Findlaj'e and Smith's prop perties, and enter Smith's land about two chains apart, his Honor in giciug judgment makes no metitioD, ueither does he mention the rainfall on Shaw's and the church land, which ma^t also have passed into Smith's land, but which is also now blocked by Smith's bank. A'ter qnoting American and other authorities, his Honor goes on to say : " The weight of authority oertsinly seems to show that, according to the English common law, while the lower proprietor has no right of action in respect of surface water coming upon him from the higher land, yet Jf he can by a barrier erected on bis own land, or otherwise, keep it from coming on to his land, tbe proprietor above h\s no right of action to compel the proprietor below to take it." By this it would appear that Smith has a right to bank against Murdoch, Murdoch against tha county road, the County Council against Fjndlay, Fmdlay ..against the neighbour above, and so on, and this is eaid to be the law of oivilised England. Further on his Honor proceeds to describe the construction of the Oatram road, and admits that "the effect of this wag to prevent the- surface water' from' Findlay's land flowing down upon the church property and thence on to the land now owned by Mra Smith." I must hei'e explain that thedefcaps -of this mutter as brought o«t by evidence" "were as follow: — Tee ' Provincial Council, in making tho road to Otitram, at tbispart found a morass in which no foundation could he got on which^to place a culvert, and while admitting the necessity for one agreed to pub off its cdn'strudtion until the ground became consolidated and being put off at the time was left to remain so for a number of years. The result of this was that the water was impounded on Findlay's land nntiL it had. sufficient weight to forca a ■discharge into Mill creek, and at time* of flood

it overflowed tho road, doing much damage ana effectnally stopping traffic— in fact a number b? accidents, accompanied by loss of life, oocarred here during that time, — until it' had to- be- ad* mittcd that the culvert was an actual .necessity and its coniitrudtion authorised. Later on his Honor states that because the County Council permits the* water 'to flow through this culvert it has no right to complain ot the water being discharged from Smith's bank on to Duke's road although' a nuisance is thereby oreifted. I suppose that also is the law of England. Aft«r the construction of the culvert his Honor aayg j •' It is obvious that the owners of the churoh land oould then have objected to receive this water. . . .The Churoh Board, however, raised no objection; but, on the coatraty, constructed a ditch abou* nine chains long into theirsection in order to receive it." I should imagine the Church Board showed good cense in preferring to receive the water as it fell in a limited stream rather than bursting over the rosd in a flood and sweeping their properfy as formerly ; and it must also be noticed here that this ditch which they coo* structed serves as a straightening of Clear creek, with which it flows parallel down to Smith's laud. Again his Honor, in speaking of the ereo- ! tion of Smith'o bank, says : •• It did not in itself create a nuisance, and-notbiog in the nature of a nuisance arose until more than s»ven months after tho bank was completed. That nuiiance was creatad by water being wrongfully dig' charged by the proprietors above." This would load/one to infer that additional water had been discharged after ~tbe bank was constructed, which was not the case. In fact, the whol« amount of water complained of if so small during the summer mouths that it hat time tc subside through tha subsoil, and only reaohec Duka'a road whea the heavy Tain* of winter se( in. This a<;couuta for the bank which wa( bailt in early summer discharging no> water oi; the road for seven .months.^ Ib, is disappoiuHnd to fiad thst his Honor suggests no lawful was of disposing of this water on Duke's road. Surely it is not supposed to be left there winter after winter. The council is f aocd with litigation if it ii propojed to turn it either down Duke's road or tha Mill creek. It appears ta me that the ouly course left for tbe council to take .will be^to follow Smith's example, and raise the surface of the road sufflvriautly high to make the water find another outlet. This can easily be done, and appears to be the lawful wayou^of the diflioulty. The Chairman proceeded to cay that he did not think it ' would be necessary to strike an extra rate to meet these circumstances, but instead of continuing to reduce their overdraft, as they had been doing for the last two years, they would have to forego that. ■It appeared to him that the judgment struck a blow at the drainage j and cultivation of property altogether. He ; spared no effort to make the case a succen ; I and the solicitor and engineer skid he had dona all that he could do — indeed, X great deal more : th»n was usually don« in similar cases. ! Cr Samson Baid he uuderutood thai Mr Murdoch and the church trustees were to pay a portion of tbe cxpsnses if the oase w*g loiu. Cr Chisholm : It .was distinctly mentioned when all the councillors were present that Hr Murdoch should not be a«ked to bear any portion of the expenst, and the trustees aU along objected to have' their names appear in any shaps in connection with the case. Or J?amson moved—" Tbat all accounts in connection with the oase be culled in and laid on the table by nexfe meetlDg." The Chairman said he thought it was likely that all the accounts would be in by next meeting. ! Cr Hahbison : I don't think we should puih them iv.— (Laughter,) Cr SABrsoN : My «xperieuce of law accounts is thAfc they don't grow leuo readily. The motion on being put was lost. I " " T,"B ■"■■.'•"'•■■■WCaptain Rose, Wellington manager of the NtiW Zealand Shipping Company, • leaves for House in a few dajs. It is understood that he has cocao into a considerable sum of money by the da&th of a brother. Mr James Sim, the member for Tapanui riding, has informed the Courier that the reason for the tenders for 'the Miller's Flat bridge being considerably above the engineer's estimate is owi; g. to several causes. In tho first place, the labour legislation oi the present Government has hampered contractors and restricted' employers of labour considerably^ Iron is alia about £2 per tou dearer than' when estimates were prepared. It is likely that the bridge will be erected shortly, with further Government assistance.