STOCK BY-LAW INVALID

Poverty Bay Herald, Volume LXII, Issue 18867, 19 November 1935, Page 13

STOCK BY-LAW INVALID

HELD UNREASONABLE WAIOEKA CASE DECISION For the second year in succession, the by-law relating to" the traffic of through stock in the vVaioeka Valley has been held to be invalid. To-day's 16 charges against nine defendants were dismissed by Air. E. L. Walton, S.M.. on the grounds that the by-daw was unreasonable, both in respect ol sheep and cattle. His Worship pointed out that in drafting the present by-law, the. draftsman had used the same heading as on the previous occasion, "Prohibition of Stock xraffic,"' whereas the wording) of the by-law referred to a restriction of traffic. The principles involved were these, His Worship said: The defendants bail a prima facie right to use the highway iu common with the general rAiblic. The most the Main Highways Board could do was to put reasonable restrictions en that right, and if tho effect of thosirestrictions was prevention or prohibr tiou of the carrying out or carrying on of a lawful business, those,restriction!-, became unreasonable. The way the bylaw was drafted implied that both cattle aud shoep might use tho road, but that tho-Tiiimbei's in one mob should not. exceed the numbers set out, namely 50 sheep and 20 cattle. What evil did that overcome? he asked. What benefit did that bring? The magistrate believed that the view expressed to the Full Court and adoptee; by a majority of the Justices in tho McCarthy v. Madden case was tin common-sense one. The more a flock oi mob was subdivided the more nuisance it would create and the more difficulty It would be better for a flock of 20(X sheep to travel over the road at tin one time than 40 mobs of 50 each His Worship did not see that the subdivision of the flock would confer any benefit to the users of "the road,"'an'* he did not seo how the by-law was t' be supported in that respect. Whil. the wording of the by-law was in respect of restriction, the effect was that of prohibition, and the case of McCarthj v. Madden held that the. by-law must not destroy a public right- and restrict the right to use the public road. The conclusion reached, said His Worship, was that the by-law was unreasonable for both sheep aud cattle, and therefore invalid. The information was dismissed without costs. There was no reason why the defendants should be allowed costs, following! the usual practice that no costs were allowed in such cases unless the prosecutor was exceed.ug his public duty. Only two witnesses were called for the prosecution. John O. Musgrave, service car pro prietor, said that, travelling stock die considerable damage to a road by clambering up tho sides and filling in the watertables, this having a bad effect on the road surface if rain followed while the watertables were blocked. The stock also tramped down the edges, making a narrow road narrower. Damage done by cattle was greater than that done by sheep. Cattle caused danger to motor ists, particularly to city or women drivers, and on two occasions witness had had nasty experiences with cattle stampeding around a corner. Cattle should riot have much trouble securing water on the Motu road. Sheep on tin Waioeka road frequently impeded traffic and sometimes hindered cars for a quarter to half an hour.

His Worship : It seems a long time. "Witness said that the time taken, depended on where the sheep were met with and whether the car was travelling in the same direction as the sheep. Dennis Hickey, Public Works Department overseer at Opotiki, said that cattle had done most of the damage on the Motu road by breaking away the outer edges, and the/ department had gone to considerable expense in protecting the edges. If stock continued to use the Waioeka road it would be costly in the future to widen the road, after the outer edges were broken away.