OTIPUA STREAM

Timaru Herald, Volume CXLV, Issue 21086, 12 July 1938, Page 12

OTIPUA STREAM

Council’s Rights Opinion of Solicitors To last night’s meeting of the ' Timaru Borough Council, the borough I solicitor forwarded the following Etter I in regard to the Scenic Reserve and I Otipua Stream:— “We are in receipt of your leter of I July 1 in which you ask: “(1) Whether the lower reaches of I the stream could be made available for I boating. “(2) Whether the lower reaches of I the stream could be made avr'iqble for i beautifying. “(3) What are the Council’s rights to both banks. “(4) What are the rights of the public to traverse the banks. “(5) If neither the Council nor the I public have any rights, what steps are I necessary to obtain control, and the probable cost. “Your letter raises several difficult questions. We understand from the I Borough Engineer that the stream is , non-tidal and has no outlet to the sea.. there being a shingle bank between the sea and the stream, and that only when the stream floods does it flow into the sea over the shingle bank; but that it could be called navigable for craft of light draught, its depth being from 4 to 6 feet in the lower reache . “It is also probably the fact that these reaches have never been used for navigation, an odd pleasure boat or so being the only vessels to use the same. “The first question to decide must be. who owns the bed of the stream along these reaches? It is either the Crown or the owners of the land abutting on the reaches who, f they do not own it will each own io the middle of the stream from his respective bank. “If the Crown owned the bed. the position as regards passage of boats would be simple, as the same would be entitled to use the stream; but to land on the banks would, of course, be trespass. “The New Zealand cases of Mueller v Taupiri Coal Mines 20 N.X.L.R. 89 and The King v. Joyce 25 N.L.R. 78 have in particular to be considered, also the Certificates of Title of the owners abutting the stream; several of these of which we have searched in connection with the Aerodrome, show the land bounded by the stream and probably the others are the same. “In our opinion, the abutting owners own the bed to the middle of the

stream from their respective banks: therefore follows that in strict law boats have no right to traverse t’. ese reaches, and, of course, no person has a right to land on the banks. “The position is simpler as to most of those parts of the stream below the bridge over the main road, because strips of the banks on each side abutting on the stream have been acquired by the Council in connection with the aerodrome, and, therefore, if we are correct in our opinion, the Council owns the ■whole bed of the stream at these parts.” Answers to Questions •Your questions are, we advise, to be answered n our opinion as follows: “(1) The above referred to parts of the stream below the bridge can (the bed being owned by the Council > be made available for boating; the parts of the bed below the bridge not so owned, and the parts above the bridge, must be acquired for that purpose (see Answer 5). “(2) The banks owned by the Council fronting the said parts of the stream below the bridge can be made available for beautifying; the banks below the bridge not so owned and the banks above the bridge must be acquired for that purpose (see Answer 5). “(3) Below the bridge, full rights as to the banks owned by the Council; below the bridge as to the banks net so owned, and above the bridge, no rights.

“(4) Below the bridge such rights as may properly be given by the Council, as to the banks owned by it; below the bridge as to the banks not so owned, and those above the bridge, no righ's. “(5) As above stated, no steps are necessary as to most of the parts below the bridge; as to the balance below the bridge and those pa.ts above the bridge the Council could take or buy the bed of the stream and the banks from the abutting owners, or perhaps make a leasing arrangement for the same; the cost, either as fixed I the Compensation Court or by agreement should not be great, as we think the i abutting owners would not place much value on the stream or the banks, unless a building were involved; but if they took water from the stream, that right could be reserved to them which would bring the compensation to a low figure. “There is this difficulty in the mattei. that if we are not correct in our opinion as to the ownership of the bed, and the Council purported to acquire the bed above the bridge, it would be expending money wrongfully and it would seem requisite that it be determined whether those owners do own the bed; an application to the District Land Registrar by the Council for a title to the bed below the bridge by virtue of its ownership of the banks would if it di d not determine, at least raise the question; and we suggest that did the Council contemplate considering rhe matter furthrr. such an application should, as a first step be made.’’