CLAIM FOR TRESPASS

Sun (Auckland), Volume III, Issue 671, 24 May 1929, Page 11

CLAIM FOR TRESPASS

DRAINAGE WORKS DISPUTE TOWN BOARD SUED The right of the New Lynn Town Board to construct drainage works on private property was disputed by the owner of the 4and, before Mr. Justice Kennedy, in the Supreme Court today. Henry Green, who has a two-acre section fronting Gardner Street, New Lynn. sought to recover £2Ol damages against the New Lynn Town Board and Forest Bros., contractors, for trespass and injury to the land. An injunction restraining the defendants from proceeding with the drainage operations, and requiring all the works to be removed and the land restored to its original state, was also sought. It was claimed that the propertv had been wrongfi | y entered by the contractors, who had cut an open drain and had driven channels, and constructed a concrete drain for a seweThe allegation made was that the land had been entered in defiance of Green’s objections, and no notice of intention to form the drain had been given by the board. Mr. Fleming appeared for the plaintiff and Mr. Haddow for the defendants. Mr. Fleming maintained that local bodies had no power to construct an above-ground sewer through private property without the owner’s consent. The board, he submitted, knew it was not acting within its rights, but relied on Green’s ignorance of his legal rights and lack of capital to bluff the matter out. When proceedings were taken by Green, the board paid a trifling sum or £is Into court for plaintiff’s expenses, but this was a mere bagatelle compared with the costs in which Green had been involved. The boart? had very adroitly taken a strip through the centre of the land under the Public Works Department Act, thereby injuring the property considerably. Henry Green stated that he was notified of the intention to start the sewerage works on March 21, and the contractors commenced a few days later. Green added: “When I waited on the board seeking relief the chairman prevented me from addressing the board on the ground that no good could come from anything I could say.” Mr. Haddow: What objection have you to the drain? —It doesn’t comply with the law, and I only found that out after you and the board had humbugged me. Did you vote for the drainage loans? —That is a secret ballot. You are taking a liberty with me, so I’m not going to answer. His Honour: You need not answer. NON-SUIT DECLINED Ralph Palliser Worley, civil engineer, stated that there were two manholes on the property in connection with the drainage works, and for 112 ft the sewer was sticking above ground for a height of 12in to 2ft. He estimated the value of the land before the piping was laid at £3 a foot, on a 180 ft frontage. The installation of the sewer would render it difficult to sell the property; in fact, he did not think that if the land were subdivided into three building sections none would be unsaleable. He did not consider the loss of grazing rights were of much value. He maintained the drain was not constructed on approved lines. For the defence, Mr. Haddow applied for a judgment or, alternatively, for a non-suit on the ground that there was no damage proved by trespass, and. secondly, that the plaintiff had waived his rights, and, thirdly, that the taking of the land under the Public Works Act removed the causes of objection. His Honour declined to enter judgment or to grant a non-suit to defendant.