COMPENSATION COURT.

Otago Witness, Issue 2545, 24 December 1902, Page 11

COMPENSATION COURT.

A sitting of the Compensation Court vas held at -the Magistrate's Court on the 16th inst., the court being constituted by Mr E. H. Carew, S.AL (president), and Messrs John Reid aud -William Sim (assessors). The matter brought under the notice of the court was a claim for compensation made by Alexander Moynihan against the Otakia Drainage Board. -The claim was Jor £20 in respect of damage to his land and crops by flood, owing to the existence of a dam erected by the board on section 35, block IV, Maungatua district. Mr F. R. Chapman appeared for claimant, and Mr John MacGregor for respondents. The case had already occupied the attention of the court on three previous occasions, when a great deal of evidence was taken. The President said he thought the evidence -was closed, and he asked counsel if they wished to address the court. Mr MacGregor said be had stated, in. the icrnT of- propositions,- which he would hand to the court, the points that he proposed to submit. First he had put some propositions of •law -and-Hhen.-some" propositions -pf -fact.;- Mr 'MacGfegor, ■. then read the -following propositions, speaking briefly in support of each: — Propositions of law: (1) That the board is •authorised by "The Land -Drainage Act, 1893," to construct, .heighten, raise, improve, repair, and 'maintain- the dam, and that the legality 1 of the board's action be admitted by claimant ; (2) that. claimant is precluded by section 28 of ".The", l/and Drainage Act; , 1893/' (from claiming (compensation for.,the erection ot th& dam after the expiration of-12 .months from such erection; (3) that, assuming claimant would have been entitled to compensation if he had made his claim within 12 months, his right would have been to receive full compensation, not only for the erection of the dam, but for its maintenance and continuance as a permanent work sufficient for the purpose for which it was intended — namely, to. prevent any water from flowing down the canal. Counsel quoted the case of Brown and Allen on Compensation (pages 131 and 142), reading as follows:— "As regards all damages that can be foreseen they ought to be included in the assessment of the compensation. It seems clear that as far as foreseen damages go, the inquiry^ and compensation are to be made once for all/and, if any damage after occurs which had been foreseen, no compensation in respect thereof can be recovered cither under the act or by action. ' " The claimant must bring forward his claim in unity as far as he can foresee the damages, estimating them as having as much permanency as the undertaking. Contingent damages may apparently also be taken into consideration although they may never arise " ; (4) that claimant •wculd have been entitled to claim compensation (i.e., within 12 months after the erection of the dam) contingent upon the possibility of the board finding it necessary to add to the height of the dam at some future time, and also compensation contingent upon the board allowing the cross cut to get choked up; (5) that the burden of proof is upon claimant to show affirmatively that the work done in March Hast was not 'merely the maintenance and repair of the dam, but new work carrying the clam higher than it had been in November, 1900; (6) in determining the amount of compensation to be awarded, if any, the court onust take into account, by .way of deduction 'from,- the amount of compensation to be awarded, any- increase in the value of any Hands in -which the claimant has any interest likely to be caused by the erection and maintenance of the driin. Propositions of fact: (1) That the dam v,a9 erected in Noyember, 1900; 'ML Jtb#t __£££ i*f""«"W t _Q_ *ad Mair.h.

1902, the dam was used by cattle as a crossing place, and was trodden down to some extent, and that nothing was done to it during that time hy the board; (3) that in March, 1902, the dam was repaired by the board, but only in a slight and temporary way, and that after such repair it was not as high nor as effective as it had been when first erected by the board ; (4) that if claimant had claimed and obtained compensation within 12 months after the erection in 1900, such compensation would have covered any damage he sustained in March, 1902; (5) that .my damage caused to claimant in March last was confined to the area within the natural banks of the canal — not more than three acres, — and one depression in the turnip field not exceeding one-tenth of an acre, and that the whole did not amount to £7; (6) that some of such damage would have occurred if there had been no dam; (7) that the dam causes moro benefit to about 13 acres of the south-west corner of his land than any damage it causes by damning bac'c the water. Mr Chapman said he proposed to address j the court briefly. He had not drawn up a set of propositions, as Mr MacGregor had, but he had endeavoured to shorten matters and pre- • sent his arguments in a memoraridum; and, although it was not usual, he would take the course of reading it to the court. This Mr Chapman proceeded- to do, commentmg in detail as 'he went along. . The principal points made by, Mr' Chapman were as follows: — That ,the water suddenly rising on his fand in an unusual way, Moynihan went to see the cause, and found a new work ; that no measurements -were given, by anyone but Mr Grant; that it '•was a- slight, temporary, perishable work*, used . as a cattle track, and incapable of permanency " while so used; that it was no part of the work to separate it by fencing from the padt docks, and it must therefore be taken to have been intended to be no more permanent than it was in _ fact. If it was ever thought necessary to give it up, abandonment would have secured its extinction In these circumstances, and in the absence of measurement, it was submitted that the true height to which it could be said to be a work was that at which Mr Grant found it by survey before any question arose. It was claimed that it was" a new work that was doing damage. It was not a permanent water-holding dam ; and even if it was not made so, the erection in March which afterwards gave way vs-as nevertheless the cause of damage, and entitled the claimant to compensation. The courts gave compensation for 6uperadded work. The circumstance that negligence contributed to the damage was no answer to a compensation claim. It was absurd to suggest that if let down the water would rise on the back of Moynihan's land, and all the circumstances contributed to show that the work was liable to cause damage. It was claimed that whether for construction or maintenance they were entitled to claim whenever damage occurred. At least they were entitled to claim whenever damage occuried after a fresh act of the board, which damage would not have occurred but for that fresh act. If the claim had been made at the end of 1901 they would have been bound by the then I potentiality of the dam. The land had been | damaged by the last construction of the work to a greater degree. Moynihan said it was | worse than ever ; but they were not claiming for that. The work complained of was the raising of the dam. They did not complain of the dam as existing prior to such raising, as described by claimant. In of3er, therefore, that the principle of betterment might be applied, it laid upon tlie respondents to show that the land of the claimant had been im- . proved, not by the dam, but by the raising 1 _^k*.__t ia j_e jaanaejr C2«iRL«BSd $f. _

was admitted that the dam was raised by he board between December 3, 1901 (when Grant saw it), and April, 1902 — that was to say, in the month of March. If the result of that raising was to dam back the water on Moynihan's land to a greater extent than before the dam was so raised, it raised a prima facie case of compensation, and the burden was then thrown on the respondents of proving that the dam as raised was no higher than it was when originally constructed. The act did not prescribe the lodging of plans or giving of notice, and the first intimation to the owner of land of construction of a work might be that he was swamped, and that at a time that precluded him from claiming compensation. His Worship intimated that he and the assessors would retire to consider their decision. On returning to the court, after a retirement of about 20 mimites, his Worship said : I have directed the assessors that if we find the darn was not raised higher than it was in November, 1900, when the board took over the dam and made it effective, that the claim, is put in too late, and we can award no damages. But within 12 months after the board took over the^dam and made it effective, Moynihan could have put in a claim for damages, " in- '| eluding prospective damages, * but not after. We find -that the dam was net raised higher than it waa in November, 1900, and that 'the' claim was put in, too -late. > - Counsel were then heard on the subject of costs, and the , court again' retired td "consider the question. On returning, his Worship said they "had decided that each party -should pay their own witnesses' and professional costs. He (Mr Carew) had to fix the assessors' fees. They had been employed for fouz days, and he fixed the fee at eight guineas each, and that each side should pay eight guineas as assessors' fees into court.