A COMPENSATION CASE.

Colonist, Volume LIV, Issue 13381, 2 April 1912, Page 3

A COMPENSATION CASE.

FELLOWES V. WAIMEA COUNTY COUNCIL.

Judgment was given yesterday by Mr. ,). S. Evans, S.iV'L, president oi! tho Oompensation Court in the case of X R. Follower (Mr. A. T. Ma^innity) v." tiio Waimea County Ccuncil (Mr. U. J. Harley) a claim to recover tJie sum of £687 10s as compensation for land.- injuriously affected by the construction lor a channel by the respondents for the purpose of straightening the Pigeon Valley stream. The facts were that prior to 19U8 the claimant was th; owner cf certain lands in P.igeon Val'-n----through which the Pigeon Vallo'v stream flowed. In flood time this streaiii overflowed its banks and. flooded ciainiant's land and the land of Mr Baigent, a neighbour, and in places ran on to ;;' public, road in front of claimant's house. Jn 1907 the claimant approached the Council with a view of getting the lower end of the. stream cleaned out and straightened to give a better vent to the flood water. A committee, of the Council and the County Engineer had a number, of interviews "with the claimant with the result that'a ■scheme was agreed upon which included the making of tho chauuel out of which, the claim for compensation arose. The Council intimated'on Bth June, 19!)8,^ that it was willing to assist in the work to the extent of one third of the total cost not exceeding £20. The claimant did not reply to this letter, but on L>th June commenced the work and continued up till October Srd. While the work was in progress claimant sold the land to Cooke, taking ?i second mortgage as security. The claimant did not make tho channel out of which tho claim ! arose, but he claimed against the Conn- ' cil for its contribution to the work ho had done. In the beginning of 1909 several further interviews took place between the members of the Council and Cooke, with the result that Cooke agreed to complete the scheme. Fho claimant was not present at thsso interviews nor was he consulted in any way. The claimant stated that the mailing cf the channel was no part of the original scheme but the evidence that it was is overwhelming. Tho channel was completed by Cooke and Baigent, and the advantage to Cooke was that'it relieved a considerable portion of his land from flood water, "as it did Bailout's, and it also relieved a part of the road from flood water. The claimant saw j Cooks while the work was in progress, ' and protested to him, Init not to thel! Council. In 1909 the claimant bought ! the land back from Cooke, giving £10!) j less than Cooke had given for it! The i channel caused damage to the land by | washing away a portion of it and cans- 1 ing gravel to be deposited on other parts of it. The Court assessed the whole damage as under: Damage ae-j crued before claimant took transfer, i £36: damage done since, £18; prosnoc- j tive damage £18; general depreciation I £20; total. ,/i<)2: less increase! value of land £40; Total £52.. I

The question of law to be decided was: Is the claimant entitled to any and if so how much of the above sum? The claimant claimed as owner, wh."i> ho was not in fact onrier of the laud when the cut was made, nor whm the damage fir-r-t commenced, but fonie damage bad happened since he re-pur-chased the. land. He was second m'oi-t----gages of tlie laud when the chauuel was made, and applied to amend the chim by adding a claim as mortga^c-p. The application was made 12 mouths after the work was executed.. The. respondents contended : fl) That the* Magistrate had no power to amend by adding an alternative claim ; (2) that the claimant was not the owner of the land whfii the work was done and the. right t;> compensation was not assigned to him ; (3) that tlie work was not a public work undertaken by the respondents; (4) that tho claimant is bound by the acts of his predecessor in title and also by the letter of Bth June, 1908.

After quoting autliorities, the Magistrate found (1) that he had no power io amend the claim by adding a:i alternative claim; (2) that the rhimant we.:; not the owner of the land iV.r which he claimed compensation when the work j was done, and that no right to eompen- j ■ sation had arisen to him or been as-j signed to him ; (3) that the work was not a pxxblic work or a local work, and was not undertaken by or on behalf of I the respondents, nor in exercise of the ! provisions contained in section 111 of i the Public Works Act; (4) that-the claimant was bound by the acts of hi* predecessors in title and by the letter of the Bth June, 1908. Th c "whole claim therefore, in his opinion, failed. Mr. Harley applied for costs. The Magistrate said lie could vnt grant costs at that stage, but he proposed to call the assessors for Thursday next for the. purpose, of entering up judgment, when the matter of c:xtfwould bo fixed, unless Mr Maginnity intended to ask him to state a case for appeal. Mr. Maginnity said he would hevc to consult his client, who lived at Wako field, and he suggested that the Court be not called together until Wednesday. Ist May. ......... ■ ■ This was agreed to. '; j