GATES ON PUBLIC ROADS.

Otago Witness, Issue 2669, 10 May 1905, Page 10

GATES ON PUBLIC ROADS.

INTERESTING 10 COUNTRY SETTLERS.

Mr H. Y. Widdowson, S.M., was engaged all day on Friday hearing a case in which Margaret Ballingall, of Sutton, was the complainant, and the Taieri County Council the defendants. The complaint was that the Taieri County Council, after receiving a petition from more than five ratepayers, by which it was shown that a. gate known as the Red Gate," near Sutton, across a road under the control of the council, was a public inconvenience, had declined, and still declined, to issue such notice as prescribed by sub-section 1, section 10 of the Public Works Amendment Act to the owner or occupier by whom, or at whose instance, the gate had beeir erected, ordering its removal. Complainant prayed that the council be summoned to appear before the Stipendiary Magistrate to show cause why such notice should not be issued, and that it be decided whether such notice should, or should not, be issued.

Mr Lang appeared dor complainant, and Mr H'O&king" for defendants. Mr Lang said the facts were that this gate was on the main road to StrathTaieri. It was put up about four or five years ago by Mr Kennedy, who owned a grazing run near complainant's property. As far back as 1903 an attempt had been made to get the gate removed, and in consequence a petition was presented to the council in the matter, but several of the councillors being in » similar position with regard to gates as Mr Kennedy, the petition was refused, councillors thinking the granting of it might affect themselves. A counter-petition had been put in, which he did not think the council should have considered., there being no provision in the" statute for it. This counter-petition had been got up by Mr Kennedy, and was, counsel admitted, largely signed, but he failed to see why the onus of proof should be thrown upon him.

His Worship pointed out that there was no proof in the petition that the gate was an inconvenience", and Mr Lang called. John Eogun, clerk io the Taieri County Council, who said it was at a meeting of. the council helcl on December 2 last, that the petition signed by Mrs Ballingall and 16 others, ati<s ths counter-petition signed' by Wm. Kennedy and 56 others, were presented. The petition on the showing of the minutes was refused.

Margaret Ballingall deposed that she considered the red gate & nuisance,, besides

I being dangerous sometimes. She often 1 drove herself to Sutton, as she had pro- < perty there ; and it was difficult for her ; to open the gate when it was blowing. To Mr Hosking: Witness had been living where she was at present for about 18 years. Kennedy had been their about 15 years. Her other neighbours were Charles Cattanach, Flanr.cry, and Andrew and David Peat, her brothers. Cattanaoh's, Flannery's, and Peat's properties had been occupied by someone for about 20 years. She had never made any complaint to the council about the gate till about three years ago. The gate had been useful to witnes sometimes in keeping her sheep back, about five years ago, but it was no use to her now. She wanted to get a section now held by Kennedy, and had employed a solicitor to oppose his application. She had a gale herself on a Toad to Barewood. That gate saved her fencing. John Andrew Ballingall, farmer, Sutton said the gate was a nuisance on rough nights. If driving a single beast it got Lack while the gate was being opened. I He had heard complaints about the gate, and considered it an inconvenience to the public. To Mr Hoskiug: The Barewood gat© was also a trouble on rough nights. Docherly ;vnd John Peat had complained about the gate. "Edward Doeherty did not know much about the gate. He could not say it was any inconvenience to him. John Peafc had found the red gate a great nuisance. His wife nearly met with an accident at the gate on one occasion, and would have been run over but that her dress caught in the brake. If his brothers David and Andrew had sworn that the gato was not a public nuisance, but a convenience, and was used by about half-a-dozen settlers and one or two others, he would say they had altered their minds. John Murray, farmer, Sutton, said all gates were an inconvenience-, and this one among the zest. Charles Samson, member of the County ■ Council, stated that one night, when driving 1 at the rate of about six and a-half miles an hour, the ponies had run into the gate, had swerved, and the buggy had almost capsized. On another occasion his wife had had to get out of the trap, and he therefore considered the gate a public nuisance. Mr Hoskiner: That applied to all "gate 3. He had, an objection to all gates unless they were legally there. He had expressed a determination to have all gates in the county illegally erected removed. To the Bench. : He had a list on which , it was shown that there were 260 odd gates i in the county. He intended to take> exeep1 tion to gates being illegally there, whether the ratepayers objected to them or not. Peter Flannery said the inconvenience to him consisted in opening and shutting the gate. To Mr Hosking: The gate had never given him any trouble, and he agreed with the terms of a declaration made by him in which it was stated that he had no objec-. tion to the red gate remaining there. John Miller, chairman of the Taieri County Council, said he was quite indifferent whether his gates- were removed or not. He was not influenced over the red gate by the fact that he had gates of his own. Robert Gibson and Duncan MTJonald, members of the County Council, also gave evidence. Mr Hosking submitted that complainant • had failed to establish that the gate was a public inconvenience. The evidence given by oomplainant herself went to show that on a windy day it was difficult to open the gafe, but she did not suggest anyone else had found it so, and it mignt be taken that the inconvenience that attached to this gate on a windy day attached to all gates. John Peat, the brother of Mrs Ballingall, said the gate was a-n inconvenience, because he , wanted it left open and Kennedy refused. There was no suggestion that any accident had happened through the presence of this gate, or that the public had complained. If this gate had been found an inconvenience to the public the matter would have found expression in the newspapers. The evidence completely negatived any idea that there had been any public complaint except by Mrs Ballingall and John Peac. He must also except Mr Samson, who had entered into a general crusade against gates. He (Mr Hosking) suggested the whole thing was a neighbours' quarrel between Kennedy and Mrs Ballingall. The evidence he would call would show t&at the district was very sparsely populated and that this road was very little used. It would show the gate had been in existence for 40 years, and no one had heard of any complaint until Mrs Ballingall made one in 190& Jtt would have been thought that if tne gate was an inconvenience something would have been heard of it before that, when the traffic had been so immeasurably greater in the past. Counsel contended there should be no interference with tne decision the County Council had come to. James Harrison, member of tH© Taieri County Council, called by Mr Hosking, said he had been 200 or 300 times through thegate, and in eross^examination said that meant that he had had to open and shut the gate each time. He had heard of no complaints about the gate except from Mrs Ballingall an<s John Peat. William Kennedy, complainant, said he was a farmer, residing near Sutton, and had grazing runs on each side of Mrs Ballingall. There was the same number of families about there now as there was in previous years. There had been a school there, but witness's three children were the only ones attending it, and three children could not keep a scthool going. If tile road was on the proper road line a fence could be erected along the road, but along the nresent road it was not practicable in places. The red gate had a patent catch to keep it open when it was thrown open, and a patent self-acting catch to beep it closed when it was thrown to. He had never heard of any complaints from anyone, except Mrs Ballineiall and John Peat, about the existence of the red gate. To Mr Lang: The gate was- away when he took up this particular piece of property four years ago. If there had been a gate it would have been left open, seeing the land was then unoccupied. He would not have taken up the land if he had thought he would have to fence along that road. The gate was handy for counting sheep coming off that rough country. He passed the counter petition round for tureJohn Elliott, foimerly manager of Gladbrook Station, said that during the last 28 years he had never heard the gato complained of as a public inconvenience. It was looked upon as a convenience. It. H. Hunter-Weston said he had passed over the road seven times during the past

few months, and had only seen four person* in the vicinity, two of whom he believed would pass through the red gate. Michael iJoynihan gave evidence as to the small extent the gate was used now compared with what it used to be. Charles Dawe said he had known the gate since 1866, and in bygone years the road ifc crossed took the place of the railway. The traffic over the road was now a mere nothing by comparison. He had never heard the gate complained of by anyone except Mrs Ballingall. John Brensell, carrier (dating back as far as 1866), said he never heard of the red gate being an inconvenience, nor did he regard it as such himself. It was a convenience rather.

B. B. Couston, engineer to the Taierl County Council, said the red gate was -well constructed. The average number of persons passing per day along that way ha would put' down at two. He had no complaints made to him about the gate except from Mrs Ballingall, Messrs John Peat aufl Samson.

Charles Cattanach, farmer near Kennedy's, did not regard the gate as an inconvenience", and had not heard anyone oomplain of ifc outside Mrs Ballingall and John Peat. His Worship said if, after the presentation of a petition to a County Council setting out certain things, the council did not issue the notice, as required by subsection 1 of section 10, then "it declined or neglected to do so, and the complainant could require the local authority to appear before the, court and show cause? why such notice should not be issued. If the local authority showed that the petition did -not disclose that the gate was an inconvenience^ then the notice did not issue. If the petition presented to the local authority contained certain allegations, and it declined or neglected to act, then it was for the magistrate to say whether notice should be issued.

Mr Lang said the council had only to see that five ratepayers desired that the gate should be removed. It had only to get an expression of opinion from five ratepayers. His Worship : But are five ratepayers to dictate to the whole of the ratepayers? If the Legislature intended that it was only to apply to formal matters. Continuing 1 , his Worship said he thought it was quite plain if the local authority neglected or refused to act the matter came before the* magistrate, and it was for him to decide r calling 1 upon the council to show cause why notice should not be issued. He considered his task had been made very easy by the evidence adduced, and in coming to a conclusion in the matter he was not, o£ course, influenced by any consideration of Mr Kennedy's personal convenience. Whera it was a question of public inconvenience Mr Kennedy's private interests could not be considered. The whole, of the circumstances had been inquired into, and ifc seemed no complaints had been made exceofc by two persons. These two persons had! made applications to the council, but if! was not for the oouncil nor the court to act upon the caprice of two individuals. The question was whether" complainant was acting on behalf of, or in the interests of. the public. He was fully satisfied it had not been shown to the council nor the court that the gate was a public inconvenience, and consequently he would not be justified in ordering a notice to issue. The decision would be that it was not necessary a notice should issue.

Complainant was further directed to pay costs '£8 3s 8d).