Magistrate's Court

Southland Times, Issue 19032, 28 April 1903, Page 3

Magistrate's Court

MONDAY, APRIL 26th

Before Mr. S. E. McCarthy, S.M

APPEAL..

• Alexander Mair, of section 29, block i, lavercargill Hundred, appealed against an order o, the Southland County Council directing him to clean from weeds and other obstructions a drain on that land. The grounds of appeal were : .(1) that, the drain referred to* was not a public drain; (S) that he appealed on both the facts and the law>-Tlr Harvey for the appellant ; Mr j. Macalister for the Coun.ty. . Mr -Sarvey said that, there would be very little dispute as to the facts. There wo^nb doubt that the earlier history of the^ drain was rather lost in obscurity, sorol^placiug the time of its being cut as far back as the days of the provincial gover4»mentl. It was- ; not a natural srat&xmrse, as it, was banked up on either^side, but it could Tnot be definitely stated who had cut it:-; Counsel detailed^ the various steps? taken in the m*tt*r of drainage at Wellcsley, the fl.aal position vM^g.'-Sfeß the Uri " U thro High the ippetjanfs land on tho xvesCswe received ;the sewage^of seyenU bou^s on the east side of **° JloaC' and was carried across the road by '^culvert, and discharged into the open drain on appellant's land. jKehad written to tho Council on. several occasions protesting against sewage being allowed to run through the .drain, and holding that the Council should do the clearing work. {These letters were received by tho Council, who, on receipt of a petition from two ratepayers, stoting that the drain was to be cl6*ed. forwarded ; notice /braeringr^the; appellant to clear the drain. .. Against this notice he was now appealing. A. Mair, J. Noble, and J. Palmer gave evidence. The firat «avc particulars of the general drainage into hjß land, and tho positions of the contributing drains. Tho other two gave evidence regarding the quality of the sew-' fege Which was discharged into the land, alleging- that fc'ouss and closet aswugc

had fouled the water running through, allowing no possibility of scouring by

watw.

Mr 'Macallstwr said that tho County Council were acting in this matter, not In opposition, to Mr Mair, but because legislation had been passed enabling them ns a public body to call upon owners of land where drains or watercourses existed, to keep thorn clean and give other facilities for adjoining land owners and neighbours. Their only remedy on receipt of the petition was to give notice to Mr Mair, which they did, in tho full belief that these powers existed. Mr Mair had threatened to close the drain, but it would have to be considered whether there was not now a prescriptive right, seeing that, the drain had been open for more than twenty years, and whether the Council could not culi on the owner to clean it. The land was used for agricultural and pastoral purposes, and came strictly within the Drainage Act. It would bo shown that the culvert across tho road had been in existence for a. great number of years, and that no exception had been tafcen till lately to the nature of the house drainage. No nuisance was proved by the. evidence. The case involved great responsibility upon the Council, if they were requihed to clear drains on private land, especially where there was a very thick nppulatiom and the land was used for agricultural and pastoral

purposes

R. P. Macgoun and C. Hbworth, clerk and engineer to the Council respectively, gave evidence, nnd the hearing was adjourned till Monday next for argument.