WATER RACE CASE.

Timaru Herald, Volume XC, Issue 13313, 15 June 1907, Page 6

WATER RACE CASE.

WAIMATE COUNTY COUNCIL SUED Ac the .Supremo Court in Christchurcli on Thursday, Mr Justice Chapman heard a case in which Michael Henslrirtge, farmer, Glenavy, sued the Waimate. County Council for an injunction and £250 damages in connection with a water-race ttirough his farm. Mr Stringer, K.C., and Mr Cassidy appeared for plaintiff', and Mr Lee and Mr Hamilton for the defendant body. Mr Stringer explained that plaintiff held a kase-in-perpetuity of section 1 block 14, on the Waikakahi* estat*. Before the estate was cut up the County Council had formed a water supply district, and made certain water-races. The plans of the original race, in point showed an intake in the Waitaki River, but at some stage the Council diverted the. water from Whitney.' s creek, wliich flowed through the section, and by means of a dam, 'turned the water into a race, either in substitution or augmentation of thy river supply. Plaintiff had, from the first, objected -to the diversion and the dam, and insisted on th" creek being allowed to flow over its old course, and so provide him with water. After some legal proceedings, the Council obtained a Validating Act in 1903. but this provided that Whitney's creek should be preserved, and the position was, there-' for, much the same as before. If the creek had bern taken by proclamation, '[lis tenants would have been entitled to compensation. Plaintiff claimed that the Council had no legal right to maintain the diversion, and insisted 'that the water should come by its natural course, unless the. Council claimed it in the legal way, in which case he would be> entitled to compensation. He asked for an injunction, and for damage*-. The defence would be that the dam was erected with the permission of Allen McLean, the former owner ■of the estate, and was distinctly beneficial to the property. The- plaintiff, in his evidence, said the damming of the crc-ek interfered with the proper use of his farm, and he had written many; letters of complaint to the County Council. (A series: of ouch letters here were produced, beginning with, August, 1901.) There were no flood-gates on the Council's races, and as soon as a flood came, they overflowed in all directions, and destroyed his property to a certain extent. Crops were damaged, and ha was ob'iged to sell 500 sheep at a loss ojj,3s per head. Owing to the way in which the water tupply was controlled by the Council, he had grass and no water on one side of hi: 1 farm, and water and no grass on the other, and a crop in between. But for the Council's dams, he would have had ample water In dry seasons lie suffered from want of water, and in \m- -.seasons from overflowing. He estimated his average loss from the diversion of the creek at over £SO a. year. Witness, crosv-examined, said the race,? were of; no use to his land. The council called upon him to pay art interest; rat for the races, and to assist in the maintenance of them. Thei.e were, also grievances of his. The Council had drawn his attention to the by-laws regarding damage to races. The races could be efficientI}- 1 }- maintained to carry the water without overflow, but the Council would not do this. Witness had made some repairs. He could; noi possibly do enough to 'make tbe.nr carry all the water the Council put in as flood times. There was. a stone dam at. the intake from Whitney's creek, but the Council had made- a channel beside it u> admit more water.- If there were no dam the water in both creeks wou.tt low righe through his section, and this would be a great advantage. The races did not benefit the grass much except close b:sidc them, and thai was destroyed by silt, thrown out by he Council's men in cleaning them out. Mr Heny, a neighbouring farmer, .threw down the dam on one occasion, and the water then flowed down the. natural channel as far as a .second dam. Witness complained to the Council; because it was necessary for' his interests- to have the two dams 'or none at all. He reerected the dam, and someone -threw'}., down again, 'these actions were repeated several times. Even then he could not get enough water, because the Council was . taking water away higher up. Albert Kniest Henry. settler, said Whi:ney's creek flowed through his. section higher up than witness's. The rates weie unab'e to carry all the water during flood time*. He removed thei dam as stated by the previous witness.' He was cleaning. Whitney's creek at the time. The Council took legal aenm and restored the.- dam. Archibald Blackwood, also a. tenant on Whitney's cheek above Henstridge's, gave evidence. * He- thought it reasonable t<j suppo-e that plaintiff had lest £59 a year through the circumstances he complained of. David Wallace, farmer and formerly contractor, of Waikukahi. Alexander McNcii, former, Alexander Williams, farmer, Char--1-s Herbert Guthrie, estate manager, and Andrew John MeLe-.n, farmer, also gave evidence for plaintiff. Mr Hamilton, opening the case for the • defence, said they would contend that the 1 plaintiff had not sufficient ■ interest uncLr the terms of the lease to bring such an action as thei present one. The lea.e was made subject %o the water races made on plans, and the tenant had covenanted not. io interfere wi.h them. The Council had acquired rights in respect of the dam even ati against th.i owners in fee simple, under Acls of Parliament, and by permission of the former owner, Mr A. McLean. Evidence would show that express permission had been given by George McLean, wlnj was then managing the estate, and that. Allan McLean, by his conduct, aequiesed in the cxis'teuce of th.' dam for a number of years. If any doubt, existed 'as to the validity of the proceedings, they were. : el at rest by the Validating Act of 19:3. Counsel submitted that the- acquiesenec on the part of the predecessors- of the present occupiers would bar them from obtaining an injunction in a Court of Enquiry, even if no rights had been acquired by ths County Council. If the plaintiff .-.ueceeded, a great amount of inconvenience would ensue to other persons, and for this reason, .the injunction should not be granted. The preliminary proceedings in regard to the water racisi were begun about the year 1890, and the proceedings were- completed and the water races constituted under the Water Supply Act, 1891. The original scheme was to take the water from the Waitaki liver and bring it down by the race-, crossing Whitney's creek, at a point below the site of the* present dam, and continuing the race now traversing plaintiff's land. It was found, however, that the crossing of the week at that- paint would involve great loss of Water, and it would be better to take the water aero;:." the creek where the dam now was. The County Engineer had .he permission of MiGeorge McLean to do this, and the work was done. 15.fore: that there- was no v.iy clearly defined channel for Whitney's creek. It wtis a swamp above Liu site of the dam. The plaintiff's land could not be said to have been prop.-.rly watered at that tim-e. All matters in dispute between McLean and the County Council were set.led by arbitration in 19C4, three years aft r the dnni was put in. and that should be icgardeel as_a final settlement of any claim McLean might have against ill■• Council in respect of the clam. No tevih■ r dispute arose in the matter before ih (jnv i-mtiwi, acquired the land from McLean. The Government plans and leases .showed that the dam and race were made a feature of the sections in offering them for lease. It was to the interc.vl' of the- settlers to maintain '

i hem, in their present condition. George Beach Cochrane, clerk to the Waimate County. Council, deposed that- the lands concerned in the case were within an irrigation district constituted under the Counties Act, 1886, section 269. A water supply district was also constituted under the Water Supply Act, 1891, supplemented by the Validating Act of 1903. Mr Stringer agreed to accept these statements without formal proof, and also admitted the County by-laws, which were put in. Patrick James Murphy, worker on the Main Trunk Railway, and formerly a resident of the Waitaki district, and member of the Waimate County Council, related ■he circumstances under wliich the system of water races was first devised and constructed. Mr Allan McLean was quite cognisant of the existence of the dam. He would be willing to pay 2s an acre more for plainaiffx section with the water ehrough and two races than if the dam were down ami the .water running in the natural channels. Robert Gilbert Baxter, licensed surveyor, Waimate, gave evidence as to the construction and dimensions of the dam and race. The -raee overflowed on one occasion <ind damaged about a quarter of an acre of oats. * This was due. to the race not being properly cleaned out. The dam we.'.j constructed to take all the water in the creek. CharLs Edward Bremner, County engineer, gave evidence touching the conetiuction of the race. The opening to the race was JixeJ, and the head could not be increased. In the race above the dam, which had been restored, there was a flow of 123 gallons a minute;' below the dam, in the nice, it was 597 gallons ; and in the creek below the: dam, 1231 gallons. This was in September last, when the creek was running full. He did not know for how much of the year this flow was maintained. The flow into the race was limited. Archibald . MeFadden, labourer, Michael Connell, farmer, Patrick Connell, farmer, and Maurice Leonard, farmer, also gave evidence for the defence. . ;. Counsel having addressed the Court' his Honour reserved judgment.