AN INTERESTING OPINION

Waipa Post, Volume 36, Issue 2146, 19 April 1928, Page 5

AN INTERESTING OPINION

CATTLE DRIVEN ALONG ROADS. WHAT THE LAW PROVIDES. . The following interesting opinion by Mr T. F. Martin, counsel to the New Zealand Counties' Association, was read at Monday's meeting of the Waipa County Council. The Hobson County Council some time back submitted the following case to Mr Martin:—

"A settler has built his cowshed close to the road at one end of his farm, and, after milking his cows, drives them, night and morning, along the road to and from his separate paddocks. The result is that in wet weather this portion of the road, which is not metalled, becomes a bog-hole, and is impassable for ordinary traffic. The road on each side of this length of road is in fair condition, showing that the damage is caused by this traffic. The oattle could be driven through the paddocks instead of along the road. The other settlers have petitioned the Council to have the nuisance abated."

The opinion of Mr Martin sets out (1) In my opinion the present case comes within section 150 of the Public Works Act, 1908 (amended by the schedule to the 1910 Amendment Act), on the ground that the settler, in question is conducting "extraordinary traffic " on the length of road in question. The driving of cows along a road is, no doubt, general, Very ordinary traffic, but it has been held in the English cases decided under the English enactment on which section 150 is modelled that traffic which is otherwise " ordinary " traffic may become " extraordinary " by reason of the frequency with which it is conducted over a particular road or part of road. Here the damage to the road is occasioned by the driving of the cows twice a day over the same length thereof. (2.) The Council's "remedy is to proceed against the settler under the said section 150 for the recovery from him of extraordinary expenses that have been or will be incurred by the Council in repairing the road by reason of the damage caused hitherto by the extraordinary traffic in question. (3.) The proceedings take the form of a complaint on the criminal side of the Magistrate's Court. Featherston County v. Hewitson (1924), Magistrate's Court Report 5. You could only recover in respect of past expenditure the moneys spent during the six months prior to lodging complaint, but the 1910 Amendment Act allows you also to claim for extraordinary expenses that " will have to be " incurred by you in repairing the road. (4.) Lord Justice Bowen, in delivering judgment of the English Court of Appeal in Hill v. Thomas (1893), said that " extraordinary traffic," as distinct from excessive weight, will inculde all such continuous or repeated use of the road by a person's vehicles as is out of the common order of traffic and as may be calculated to damage the highway and increase the expenditure on its repair.