SUPREME COURT.

Taranaki Daily News, Volume XXXXV, Issue 60, 11 March 1903, Page 2

SUPREME COURT.

Tuesday, 10th March, 1903 -Bafor* His Houor, Mr Juftica Uonolly.

SATLKR v. BTRVTF )RD BOROUOH COUNCIL. ARBITRATION OA SB. Mr Malone, of Malone, McVeagh and Anderson appeared f«r claimant, and >lr Foakes for respondent. His Honor ta.d that as Mr Fookas li d prepired the case, he should lead. Mr Fookea pointed out that the ease arose out of the laying of water pipes in connection with the Stratford water supply. He read the terms of the agreement betwean the Und owners and th 9 Borough Oouaoil: (A) To lay pipes up 10 10 itches etc. (B). To enter upon the lands to repair damages, etc. (0). To take water from the Patei river. la consideration of this the Oouccil undertook: 1. Nwt to do unavoidable damage. 2. To allow owners to tap tha pipes, aud have a service for household purposes free. 3. Lay pips* without deliy. 4. Pay cost of survey, and all legal expensed. 5. To appoint two arbitrators (which bad been done), with power to appoint an umpire. The arbitrators had heaid the oase, but the law po<nts hid be n lift to the Court to d'cidd. Mr Fjokei tbea went on to qiute thn various clauses of the Ac% relating tu the powers of Jooal authorities in the c luatructun of public wjrki. His Honor said by the referenoe to arbitration, the clauses referred to w«« waived. Mr Pookt-s said his contention was that the Uorougb Council, bad tha right to enter under tte Public Works Act.

H a Honor said they bad the right t~< enter, and pay compensation under the Publio Works Act, but instead of that they had decided to waive that for freb water.

[At this stage his Honor disoovered thac Mr Malone should have opened t as he was under a misapprehension, and had thought Mr Fookes was for cUimmtJ. Mr Malone then submitted that the power to lay pipes and the power to cake water were two things. In reply to bis Honor Mr Malone i said the Patea river bounded theee I lands and claimants were raip&rean owners.

His Honor said he quit) understood the position. Of course if the Borough were tappiog the river above them, and if Stra.ford grew in the next ten years as it had djne in the pas* 1 , it woald take bll the river.

Mr Fookes pointed out that they were limited to a 10 inch pipe, whioh could cot aff ;ct the river very mush. Mr Malone said with a pressure of 2501bs it could take a good deal, end con'ended tbat no matter what the statutory power of the Oounoil might have beeo, the agreement superseded this, and tha Council could not now avail themselves of their power uodcr statute.

His Honor said tbat was his view. Mr Malone said in addition to frte water and compensation for damagee, the Council had promised to piy suoh S'im as the arbitrates agreed upon. The cliuse read, " Compensation Shalt be made to the landowner and he shall accept suoh sum as the arbitrators may determine in one or more paymeats." The arbitrators may make the sum a farthing and he could not »k, but something, he held, must be paid in addition to free water as oompsnsition for damages. Tne arbitrators now asked bis Honor to say if the sum wis to ba in addition, and if it ehould be for one year or more. As regards free water, a question arose as regards the power to tip the main at any point or points, and he contended that this did not limit the number of oonnee* lions, Aa only res'.riotion beiog that the wntor bs uied fjr household purposes ouly. | His Honor said there was a que it ion I of wbat was household purposes. Mr Malone said this was a question his Honor wis not atked to decide. His Honor askeJ wbat was the me tf t' e peetii.ns.

Mr Mt.'one 6Aid the largest was 40 acres i i the boi ongh and up to 200

oirside. His Honor said it was dear the water could be taken for etch* house and it was alsi clear the Borough Council hud been more iiberal than they intended to be, and if these people were to get free water and piy no rates they would hardly have a olaim for vaj further sura.

1 Mr Ma'one: That may b) but tilt agreement clearly contampUted aorae- ! thing further. | Hh Honor raid if the Borough bed acted under the Public Works Act th -ycmli p ob ibly have got it muoh chetper than now. He was of opinion rhat the free wa'er was of muoh greater vilue than any sum to be paid end such sum should therefore be nominal. Mr Malone said His Hot-or was also asked to decide what the term " free water" meant. The term used in (ht argument was wa'er " free from obarge."

„ His Honor read the c'ause which ran " that eaoh landowner should bo tn- | tided to water free from eharga for water used fir household purpoa 8 only ani eaid this clearly give each pervon the right ta water frea from all rh rge. Mr Malone siid the next question 1 His Honor was asked to deoide was " if free From charge did not free them from bo'h rates i.e. if they were liable for ordinary water rate and rates for property within 100 yards of tht waterworks as provided for in the Statute.

Eis Honor said be thought this could only apply in the case of the waterworks being situated within tha borough, If the land is not free under the agreement, lands and buildingi si'uateii within 100 yards would be liable for only a half rate.

Mr Muloud s<id this meant where th- re was a building. Jt was quite coavovetit to ascertain what was 100 yardn. It was continu ;lly done in connection with the Loans to Local Bo lies, when sections were often divided. Then there was the question of royalty, tlrs was a question of carting. In this c>se each teatiou fronted the ioad, and the Council could tak<» the pipes up the pipe lino, or in from the toad, and thus sive more c irting on a particular section tban was absolutely necessary.

His Honor said this would depend ! :iguiy "ii tlio position and quality of the land. In one case vary lit )e damage might be done, and in oil-era a great de-il. For insUuos, if 1000 tool bad t> ba carted over 10 properties, one man would have 1000 toos cirted on to his property, and tie tenth mm only one hundred, and stilt owing to tbe nature of I he eoil, the la*t man might have more damage done thin tbe first man. Mr Malone: What they held wa* thai the damage w»a in proportiou of tlio quantity takeu over the land. Ilia Honor said it was a very wrong way. The royalty or damage must be

MKflaed according to the actual damage done.

Ur Ftfok'S, in r«ply, contended that the statutory rights existed as regards the land, but did not apply to the river, and the agreement was to give the right to the water of the live-. His Honor said the right was subject to payment for damages. Mr Fookes said what he wanted to impress upon his Honor was tbe right to lay pip-s, and the question of pay ment of damages were two distinc things. His HoDor said that in the agree-] ment the Council had agreed to piy for the right to lay pipes, as well as to' take water. All he bad to do was to decide the questions put to the Court. Mr Fookes said that was so, and the question was whether the right to free water did not cover any claim under Section 5.

Rt question 5: His Honor said he was dear the grant of free water was full compensation for all claims for damages.

Mr Fookes said that was his contention, but the applicants were arguing that free water meant nothing. Then another important matter aro?e in regard to tha number of services. He held they mast take the existing' state of things, and the meaning wsb to supply the householders on the property at (be time. His Honor: Suppose the?a was no house on some of the sections. If so that owner would get no service.

Sir Ualone Eaid some of the seethes had no Louses. Mr Fookes contended one landowner was meant.

His Honor: That is so, bnt it does not say one householder, and cne landowner might mean the owner of any number of houses, and if it meant one house why not a capable of very liberal interpretation. Mr Fokes said be was inclined to agree wish His Honor that the Borough Council bad been very liberal. Still he contended one hou«e only was contemplated.

Mr Fookes eaid he next wasted an interpretation of the m aniog of "f■ ee water." Did it free the landowner from statutory rates ? This was not the intention of tbe Council. His Honor said be conld not consider what the Council intended, bat wbat they did.

Mr Fookes said there were two rates, those using, and those who had ability to use the water. His Honor raid those entitled to free water, in his opinion, should pay no rates. He held that all the sections which were set oat in the agreement free of all rates whatever. The agreement says the -owners and their heira nnd successors are entitled to free water for ever. Tbis freed them cf all water rates, and it seemed to bim that they were largely overpaid. Of course he was saying this, but he did not know what effect the taking of tbe water would have on thi river. Mr Fookes did cot think it would injuriously affect the river. His Honor said the last question he would answer in the negative. There eould be no claim for special damage. Mr Fookes asked for a written judgment.

Hiß Honor said he could answer the point s very briefly and would put his answers in writing. During the afterBoon the written judgment wbb delivered in the form of answers to questions, submitted as fo'lows: — 1. As the Borough Council had a

statutory right to lay water pipes under claimant's land, although such bright was not exercieed, are the claimants entitled to any aum or sums as compensation for such right independ- . ently of special damige. Answer. The landowners are entitled to have the grant of the right to take the water if the Patei tiver estimated as of some value to the respotd-. ent.

2. Should the arbitrator in estimating each gam or sums take into consideration the grant of free water for household purposes agreed to be made to each of the olaimants by the respondent

Answer. Yes. 2». Is the right to take water fne

of charge limited to a service for any I one house or any nnmber of houses that| * aie or may be erected on the claimant's land either at the time of making the agreement or subsequently. Answer. The right to free water extends to any number cf booses now cr hereafter erected on the land. 2a. Does the grant of free water, (or household purposes only exempt, carry with it an exemption of the lands and baildings (if any) of the claimant within the Borough, from either or both water rates leviable in tbe - Boropgh for ordinary supply, and for household and domestic purposes. Answer: The grant of free water Implies an exemption from rates for water taken for household purposes. 2c. Does Clause B, of sub-section 1, of' section |lO2 of the Municipal Corporation Act, 1900, which enables a Borouph Council to levy a rate on all land and building* to which water can be, but is not supplied, situated within 100 yards from any part of the water-1 works, extend to the whole of the sec'ion of which part is within the 100 yards limit, or to each part only. Answer: It is unnecessary to answer this.

Are the claimants entitled to a royalty by way of special dumagf, in respect of the material for water-pipes carted by respondents through bis, or her land, to* the " land of the other claimants on the water-pipe line. Antwer: No.

IN BANCO. REVIEW 07 AN APPEAL. Mr Kerr, instructed by Mr SpeEce (Stratford) applied, on behalf of Mr R. Johncoc, for a review of His Honor's decision on the 7th instant allowing an appeal agaiist tbe Hi-gisttar'g od-r extending a cavt at against the land of F. Hec'ey. Mr Kerr moved tho Court to rescued the order allowing the appeal. Mr M alone, on behalf of Mr F. Henley, opposed the motion. His Honor, after hearing counsel, dismissed the application with costs, £2 2s.