DAMAGES CLAIM

Waikato Independent, Volume XXIV, Issue 2390, 30 October 1924, Page 5

DAMAGES CLAIM

3ERTELSEN VERSUS DRAINAGE BOATED. I PLAINTIFF FAILS. •A 1 A claim for damages and loss of Grazing value was the basis of a ease » of considerable interest and importanco to this and other districts, heard at a special sitting of the local Magistrate's Court, yesterday, before Mr H. A. Young, S.M. in which Hans Claudius Bertelson claimed £IS2 for alleged loss of stock, damage to land, and loss of grazing occasioned through the alleged negligence of the defendants to clean and maintain a drain on defendant's property. Plaintiff was represented by Mr D. J. Lundon, while Mr 8. Lewis appeared for the defendant Board. Hans Claudius Bertelson, farmer, of Holfc-Oyßangi, the plaintiff, said he was of 671 acres of land within' district, through which several drains, under the jurisdiction of the Upper Mangapiko Drainage Board, passed. One of these, commonly known as the Lake drain, and in connection with which the proceedings were based, was constructed in 1915. The depth of this drain was about one foot, and eight feet wide at that period, but the following year it kwas deepened another six inches. By Jpthis improvement it had the effect of r -taking all the surface water off the lake area, and plaintiff was then able to use the land to a certain extent The edges could be used for grazing, and part of the year the lake area could be used for young stock. The third year after construction the drain gradually closed up. There was then not suflieient room to take the water away from the area concerned, and consequently plaintiff had since been deprived of the use of the land. Several thousand acres of land drained on to plaintiff's land arid "with the drain inefficient it Had been a detriment to him. It had formed a big hole. Plaintiff had lost seven cows and six calves through getting bogged in the drain. He valued the eows at £lO each and the yearling ealves at £2 each, a- total of £B2. Every

year he had been complaining to the

Board, but had received no satisfaction, "•fcintiff had been a ratepayer to the Board ever since it started, and had paid in rates about £350. Of the land he owned, 95 acres were classed A, 60 class B and 167 in class C. The 95 acres complained about were classed A. Plaintiff consented to it being classed A, as he understood it was decided to give him a 7ft. deep and Bft. wide drain. At a meeting of. the Board le"~wsis asked if seven feet would be and replied in the affirmative.-> Tenders were called for a drain of £ueh dimensions. Since the drain "had been made the grass had been cut and pulled out but to plaintiff's knowledge it had never been deepened or widened. One time £2O was awarded for depening the drain, but the money was never expended. Plaintiff gave notice on 141. h August that he intended taking action against the Board. Witness had been deprived of the use of the land concerned for five or six years. The lake, through filling up. was forcijfchthe water to a higher level and "eonlequentiy damaging a greater area of land. He considered the extent of damage was several hundred pounds. Plaintiff brought the action for only £IOO, as he wanted to see the neeessary work done. The £lB2 would not. compensate plaintiff for the damage done. Cross-examined, plaintiff said he had owned the land for about 17 years. He had assisted in the activities of the Board, and a meeting preparatory to the formation of the Board was held in his residence in May, 1912. He was one of the first elected on the Board and remained a, member until he resigned in August, 1920. When he took up his farm the lake was a solid sheet of water, on which bouts could be rowed. "When the Roto-o-Rangi estate was cut up he was not aware that the whole of the lake area was thrown in and that he bought the lake in with his " £ther property. At the outset the drain in question was dug a foot deep because tho land was soft but it. had been arranged to .deepen in gradually. It was .because this work had not been done that he had brought an action. If it had been done it would have taken the surface water off, but he admitted the actual lake would still be of no use to him. Plaintiff had made a complaint in 1918, and annually ever since. It was possible that £45 13/9 in 1921 was spent on the drain. It had only been cleared about onco in cvory two years. Plaintiff further agreed, that a further £4O may have been spent on the. drain in 1923. In reply to Mr Lewis' query that plaintiff's statement was incorrect when he said the lake drain ran through his property, plaintiff stated that the drain was really a boundary drain between his property —arfAiis neighbour, Russo. The centre of Hie drain was the boundary. On December 12, 1922, plaintiff wrote to the Board with a. request to have tfco drain deepened and efficiently J cleaned} and had received a reply J;o the cMet that it had been agreed to .deepen. ■Jfoii drain to five feet.' On February 6\ T 023, the Board had notified plaintiff

that the Board was arranging a conference on the 27th inst, when the matter would be gone into. On 24th July, plaintiff's counsel wrote the Board at length asking that immediate steps be taken to clear and deepen the drain, as damage was being dono on his client's lands. The Board replied that the drain had been cleaned out; also the branch drain between Bertelson's and Russo'a properties. Later Mr Lundon again-wrote the Board stating that the Board's drain and also the branch drain were not functioning as required, with a request to have the matter attended to.

In reply to defendant's counsel, plaintiff said his claim was not based on the fact that he could not bring the land concerned into a state of cultivation, but entirely due to the neglected state of tho drains. He admitted that previously the area concerned was one sheet .of water, and was consequently wholly unimproved land. Plaintiff contended that it was possible to construct an efficient drain to clear the lake area and that the bottom of the lake was not lower than the bed of the Mangapiko stream, which was the only outlet for drainage for the whole district. There was plenty of fall from the lake without doing anything to the Mangapiko stream. Plaintiff admitted that he had been advised by the Board that rhey intended concentrating on the stream during 1923 and would not be able to do any work on branch drains. Before the Board was formed there was a drain called the old No. 2 drain constructed by the old time Roto-o-rangi Estate Company. He admitted that as far as the Drainage Act was concerned the Board did have the power to make, plaintiff do certain work on the drain in question.

Ed.\vard Allen, fanner, of Cambridge, as an experienced land vainer, said thai on the 13th August he inspected the land concerned. The drain seemed to be. bunged up. It was about two feet wide and eighteen inches deep. The drain seemed higher than tho land adjoining, which was water-logged due. he considered, to the drain.being bunged up. The drain wanted dealing to about 8 feet wide and 5 feet deep. The 90 acres, or what witness saw, appeared of no use arid if a beast went into the sides to get rough feed it would never come out of it. The 90 acres, if properly drained, would carry 40 head of young stock. The loss in actual cash value would bo about £SO a year. The Mangapiko was the only outlet for the district's drainage.

John Charles Potts, a. farmer, of Cambridge, said he had been employed by the Board .12 years ago to classify the land concerned, and based his various classifications on the proposed drainage improvements. He had inspected the land just recently. In April he found the drain closed up to about 2 feet by 18 inches deep. He considered the amount spent by the Board on the drain was reasonable. If the Board was called upon to spend £7OO to provide efficient drainage it would be reasonable to expect Mr Bertolsen to contribute to the cost. Domenico Russo, farmer, of R-oto-o----rangi, corroborated previous evidence.

Samuel Angjelinovich, of Thames, a. drainage contractor, had seen the drain. There was any amount of fall to the Mangapiko stream. It wanted widening and deepening. To widen the drain to eight feet with a live feet depth would cost about £J> 5/ per chain. Defendants' Case. Opening fur the defence, Mr Lewis stated that the facts of the case from the plaintiff's viewpoint wrvi} that the defendant Board had been negligent in neglecting to have the drain in question cleaned.. It would be shown, however, that though the existing drainage could not effect, nor was it ever intended to effect the complete drainage of the lake; it had materially assisted in lowering the area of water. The lake was originally 125 acres in extent, but it had now been brought down to 92 acres. All that the Act required, said Mr Lewis, was that drains should be maintained to their dimensions and cleaned, and it would be shown that the Board had not been negligent in this connection. To carry out the work as required by plaintiff would cost approximately £SOO and might possibly have the further effect of running the Board into an outlay of thousands of pounds. If such a procedure was allowed it would cripple nearly every Drainage Board in the Dominion. Counsel further contended that any action intended should have been launched not later than 12 months after the act complained of had been committed, but this act dated back to 1918. Mr Lewis concluded by contending that the mere fact that a Drainage Board did not keep any particular drain in order was not sufficient grounds for the setting up of such an action.

Replying, Mr Lundon maintained that after his client took over the property he was promised by the Board that the dra.'n would be maintained at eight feet wide and IJ feet deep, and if as a result of the drain filling up and flooding such caused loss of stock, surely he was entitled to compensation. Counsel also contended that his client was entitled to bring his action forward at any period. He submitted that the evidence clearly demonstrated that neglect; had been established, and quot-

ed extracts from a previous case at law where neglect had been proven against a Drainage Board and damages assessed on evidence of damage established concerning a plaintiff's land. Henry Roche, civil engineer, of Cambridge, and engineer to the Board, gave a description of Lake Roto-o-rangi, and said before the Drainago Board did anything towards it there was a lake area. Around this area was an extensivo swamp. ■ The total distance from the Mangapiko to a point on the lake was 160 chains, with a total fall of 10 feet, sufficient for good drainage, and the drain came into the lake four feet below the surface. It was not anticipated that this would dry the lake, but it would take away the the standing water. This result has been attained. Since the. drain had been formed witness had not seen open water on it at any time. The land had been reduced between three or four feet. If the lake had to be drained further very considerable expenditure would be entailed. With running sand in portions of the area of the drain, pipes would be necessary and with 24 inch pipes the expense would be £SO per chain, too great for any Board to undertake. It was originally intended to deepen the drain four feet, but as difficulty was met with, it was ultimately decided to advise the contractors to make the drain take the surface water only. Later the work was taken in hand again with the results as previously placed before the Court. It is recognised by the Board and they were attempting' to place the Mangapiko stream in a more satisfactory condition by increased fall, and until this object was achieved plaintiff's and other areas could not receive the drainage desired. With regard to the maintenance of the drain, witness had inspected it and. considered if. was quite effective. He approve,! ..if the Board's policy to concentrate'en the Mangapiko stream. He .-•onsbleml the Board had not been neg-

ligee! in its duties.

Cross-examined witness said he did not make a careful inspection of the whole drain. The drain would not function if it. had been considerably reduced in width. He had been given to understand that the lake had been redueed about throe feet and if so this would give plaintiff an additional 50 acres. The worst portion of the lake to-day was as good as the best portion before the drain was put in. Edmund Blachford Cox, retired farmcr< Noel Peake, of Cambridge, and William Grice Park, farmer, of Puahoe, supported previous evidonce for defendants.

John Wm. Peake, farmer, of Roto-o-rangi, chairman of the Upper Mangapiko Drainage Board, said last year it was resolved to concentrate on the main stream and notices were sent out to the ratepayers, who raised no objection,, the majority heartily approving of the Board's action. He considered that until the Board was working in eonjunction with the Lower Mangapiko Board as proposed in the proposals now under consideration by the Drainage, Commission, it would be impossible to completely drain the lake. It was impossible'to take on this responsibility out of ordinary revenue. Every year the branch drains had been attended to with one exception, when they had to wipe off their antecedent liability, and last year when it was resolved to concentrate on the Mangapiko stream. Wm. John Murdoch, farmer, of Roto-o-rangi, a new member of the Mangapiko Drainage Board, said when he first joined the Board he thought Mr Bertelson had a just cause for complaint. He had since inspected the lands concerned. It was impossible to drain the lake. The drain in question was not doing much good, aad uever would.

Alfred Robert Cox, of Boto-o-rangi, a member of the Board, said he had inspected the drains on various occasions and he agreed with previous witnesses about the falling in of the drain. The land was of such, a nature that he had known cases where the drain had closed up two feet in a night in portions. Judgment for Defendants. In recording his decision the Magistrate held that plaintiff's claim was principally based on the alleged fact that defendants neglected to maintain and clean the lake drain to its original dimensions. However, it had been clearly shown that with the exception of two years when nnforsoen circumstances had prevented the Board from attending to branch drains, they had been regularly cleaned and maintained, and on those two years in particular ratepayers had been notified of the Board's intentions and agreed to same; therefore, he was satisfied the Board had not been negligent. It was also quite clear that Section 25 of the Land Drainage Act did not provide for new works which the deepening required by plaintiff could be classed as. Regarding the maintaining of tlit* drain, he was not satisfied it was intended, in consideration of the nature of the land, to keep if open at eight feet wide by 1J feet deep. It had been clearly shown that last, year the Board intended concentrating on the Mangapiko stream which was benefiting all the ratepayers. Plaintiff apparently expected to have his outlet drain clean also, but he had not realised the difficulties of tho