STORM WATER DRAINAGE

Taranaki Daily News, 24 November 1934, Page 16 (Supplement)

STORM WATER DRAINAGE

BENONI WHITE’S CLAIM BOROUGH COUNCIL HAS DEFENCE. NOT A CASE FOR DAMAGES. WRITTEN JUDGMENT TO BE GIVEN. The claim for £2OB damages by Benoni White, New Plymouth, against the New Plymouth Borough Council for damage allegedly caused to his property through the action and effect of storm water failed in the Supreme Court at New Plymouth yesterday, ' His Honour Mr. Justice Smith intimated before Mr. Quilliam’s summingup for the council was reached that he did not think the claim could succeed following the evidence given by Borough Council witnesses. He would place his findings in writing, however, for White to read and study. Although he could not succeed, whether there had been damage or. not, in an action for damages there might be grounds for a compensation claim under the Public Works Act.

When the case was resumed yesterday morning His Honour requested that Mr. Quilliam complete his case as there were points in the claim for a non-suit he did not wish to decide.

The attack on the council made the previous day was irrelevant, suggested Mr. Quilliam, and he did not propose to reply to it.

His Honour: I quite agree.

EXAGGERATION ALLEGED.

Mr. Quilliam said White’s claim was greatly exaggerated and it was greatly to be doubted if any damage was done by silt—rather the opposite. Mr. Quilliam referred to the Court’s inspection the previous day, in which a neighbour on higher land was observed using the silt for his garden. Evidence would be called to prove that sandy silt on swampy land greatly improved it. Silt reached the land through no fault of the council, and the sump scheme adopted was the standard one throughout New Zealand. An estimate had been made that the amount of silt deposited on the land in one, year would amount to a yard, reducing the claim, to a trivial one. Mixed with the silt was mud from the sides and from other properties. As regarded the rubbish dump at Hobson Street, it had definitely not been established by the Borough Council. No evidence had been called by White to prove that any blockage had been canced since 1930. It therefore could not be proved that any damage had been done within the past three months. Tire only other point of the defence was that by prescription the council had the right to lead water on to the property. His Honour: How do you relate the prescriptive right with the easement you obtained in 1930?

Mr. Quilliam: We desired the right to enter higher to pipe the drain. The deed was to prevent the borough from diverting anything but water into the drain.

His Honour: Tlien wafer from Lemon Street includes all water that comes into Lemon Street?—Yes. No other complaints had been received.

His Honour: White is complaining of particular damage to himself and does not need the Attorney-General to say that. He may have provocation for an injunction. I am looking at the matter from the point of view of a member of the corporation who complains that the corporation s unlawful act has resulted m particular damage to him.

Previous to the installation of pipes the water damaged Knight and Daly’s property and the borough had realised and remedied that, said Mr. Quilliam. If it could be shown that for 20 years prior to 1903, when the certificate of title had been issued, the council had exercised the right of diverting water that, he submitted, should be enough. ENGINEER’S EVIDENCE.

William Alfred Clarence Clarke, New Plymouth borough engineer since 1926, said the council's sumps were in uniformity with those used elsewhere in New Zealand. They were regarded as of sufficient capacity. His Honour: Having regard to the volume of water?—Yes. There are three sumps in Lemon Street. He admitted a certain amount of silt went through.

His estimate of the amount of silt from the sump on Knight and Daly’s property and White’s property deposited yearly would be one cubic yard, which could be cleared in half an hour a month. The rubbish dump had been created by private residents, and the practice had been stopped as much as possible by the council. To his knowledge there had been no blocking of the Hobson Street culvert since 1930.' The surfaceman would attend to it in the course of his duty.

“I am so disconcerted and amazed at the extravagant statements of defendant’s counsel that I am at some trouble to compose my thought,” began White in his cross-examination. His Honour: We will hear all about that later. Would you like to ask Clarke some questions? I will hear your comment at the end.

White pointed out that he had not said the council had formed a rubbish dump, but that it had permitted one. Had not two extra pipes had to be put into the culvert?

Clarke said that extra pipes had been installed in normal street-widening operations.

His Honour suggested that perhaps what White was trying to find out was if the sumps might not be defective in that they became full, allowing water to flow straight through. Clarke replied tlrtt the sumps were cleaned out weekly and after heavy rainfall. He estimated that the sumps in reasonably heavy rainfall would fill in three days. White: .Do you remember a petition from Lemon Street ratepayers complaining about concentrated storm waters, on which Knight and Daly were petitioners? I remember the petition, but not the names.

His Honour: What was the complaint about?—l think Knight and Daly were complaining about the damage done by the water.

W’hite: I submit that is an important point.

At this stage White attempted to give evidence regarding the petition. His Honour pointed out that White had closed his case and could not make such Statements without calling evidence, unless he could extract admissions from the defendants’ witnesses. MISUNDERSTANDING ARISES. White: I am afraid I do not understand. In my distressed condition last night I understood that I would be able to call a witness to-day I could not get yesterday. His Honour: But you told me you had no more witnesses.

White: Not yesterday, sir. What am I to do? What am I to do? His Honour: This is unfortunate. Evidently I misunderstood you. Clarke was temporarily stood down, Mr. Quilliam consenting. His Honour: Will this be your last witness, or ■ are there any more? White: Definitely the last witness, sir.

Tom Hargraves, gardener, Lemon Street, said he had lived almost all his life close to the properties concerned, and remembered them as market gardens.

To Mr. Quilliam Hargreaves said he was using silt on his garden property next door to grow water melons. It was useful foi- his purpose, but he would not say that silt was generally good for water-logged ground. There were springs that would keep the ground wet, if the information was any good. White: Do .you account for the difference between the earlier days and now by the deposit of silt?—l should say it has.

Clarke returned to the witness box. To White he said another sump had been placed in Lemon Street in 1930, not for better trapping but to prevent overflow caused by the blocking of the grating by cabbage leaves.

White: I remember the sump being put in almost immediately after the petition. His Honour: Blocking with cabbage leaves is not a frequent occurrence?— Infrequent, but a local body has to guard against possibilities The construction had nothing to do with the petition?—l do not remember the petition too well.

Reginald Day, chief borough inspector, said the pipe drain had been put in solely for the purpose of protecting Free’s land. Regarding the rubbish dump, one had been established further along in 1916, and from that time drastic measures had been taken to prevent house rubbish being dumped near Hobson Street, although hedge clippings and clay spoil had been tipped over. House rubbish had been deposited surreptitiously in the night. The culvert had been repaired in 1925 and had given no trouble since. His estimate of the amount of silt on White’s property agreed with Clarke’s.

GROUND IMPROVED. To White Day said that the conditions of the drain in 1934 were approximately the same as in 1929. He thought the ground was better now than it had been ten years ago. White: That is just your opinion. Thomas Clayton Boulton, head gardener at Brooklands estate for 40 years, said he knew the property 49 years ago. Revell’s nursery garden and a raupo swamp had been there side by side. The ground had unproved considerably since those days. The water-logged nature of the ground was due to seepage. It would be impossible to have the ground without a drain, whether there was stormwater or not, to cope with springs. Personally, he would be pleased to have silt to spread on water-logged land. His Honour said he was quite satisfied a watercourse had been . established and that I the right secured from Free extended over all the waters that came into Lemon Street. Thus defendants were entitled to pipe the water down. He was also satisfied that from the end of the pipe the concentration of the water through the land of other occupiers had scoured out White’s property. Whether that was done with the consent of the council was open. The council had piped the water in accordance with right and was allowed, it was clear by the case of Little v. the Hastings Borough, to discharge water. There might be a claim for compensation under the Public Works Act but not in an action for damages. The construction of the sumps seemed to be in order and that disposed of most of White’s claim. He might have grounds for complaint by the existence of a rubbish dump. White read a statement he had prepared reiterating his claims, and Mr. Quilliam submitted that the action was barred because no damage had been done since 1930.

White replied that he had worked In July and the council had admitted it. Mr. Quilliam: After the actidn had been filed.

Charles Percival Chapman, surfaceman, stated that for the past three and a half years the culvert beneath Hobson Street had not been blocked. He had not observed any overflow from the connecting drain upon White’s property. To White, Chapman said he had noticed temporary blockage causing water backing up. He had on one occasion seen debris at the side which White might have taken out.

White said he would not be making any claim for the blocking of the culvert but would explain from text books the effect of capillary attraction. Mr. Quilliam asked if, considering White was not claiming for damage by blockage and rubbish, referring only to the capillary action of water entitled to be there, there was any case to answer. His Honour said he did not Intend to take White's statement as an admission.

There was only one point left, said His Honour. Did the council admit liability tor the drain cut from the end of the pipes to White’s property? “No,” said Mr. Quilliam. The council would not admit any liability with the small length referred to.'

£harles Barry Walsh, surfaceman, also gave evidence of the clearness of the culvert.

The plaintiff could not succeed, whether he had suffered any actual damage or not, said His Honour; but for the satisfaction of White he would put his judgment in writing. In the case he was actuated only by a citizen’s desire to have righted .a wrong, said White. He still held he had been done a grievous wrong. His Honour said he would deliver his judgment in writing so that White could read and study it. Although there was no case for an action for damages there might be room for a claim for compensation.

He might have had the effrontery to differ from His Honour, concluded White, but the difference did not extend to personal relations.