REQUISITION RESENTED.

Waikato Times, Volume 96, Issue 15353, 29 September 1923, Page 6

REQUISITION RESENTED.

APPEAL HEARD BY MAGISTRATE* BOARD’S DECISION OVERRULED. At the Magistrate’s Court, Hamilton, yesterday morning, before Mr H. A. Young, S.M., W. E.' Jones (Mr Northcroft) appealed under section 62 of the ■ Land Drainage Act against a decision by the Tamahere Road Board requiring appellant to remove obstructions from a watercourse. Outlining the case for appellant, Mr Northcroft referred to the fact that a drain constructed by the Eureka Drainage Board, tapping an area of 600 acres, had had the effect of concentrating and discharging upon Jones’ property water which would have been in the ordinary course more gradually and widely distributed. This had been the subject of a previous action m the Supreme Court, as the outcome of which Jones had been awarded £175 compensation against the Eureka Drainage Board. This compensation, however, had not been paid by the Eureka Drainage Board, which had allowed the drain to fall into'disrepair. As a result the Tamahere Road Board had now found itself embarrassed by water concentrating upon the road, and had carried out road drainage operations to cope with the trouble. In order to obtain an outlet for this water the Tamahere Road Board was now seeking to compel Jones to do the work of clearing the watercourse on.his property. This demand, counsel contended, was wholly unwarrantable, since it was for the purpose of enabling Jones to do this that the Supreme Court had awarded him compensation, and in regard to which appellant would be willing to abandon his judgment for £175 if the Eureka Drainage Board would do the necessary work. Some members of the Eureka Drainage Board were also members of the Tamahere Road Board, and, whilst counsel did not suggest collusion between the two local bodies, he maintained that the Tamahere Road Board must be well aware of the Eureka Drainage Board’s position in the matter. It therefore required considerable effrontery on the part of the Road Board that, after carrying out drainage work which in its effect damaged appellant’s property to a similar extent to that for which he had been awarded compensation against the Drainage Board, it should in addition now require Jones to carry out the work for which the compensation unpaid by the Drainage Board had been allowed by the Supreme Court. Counsel further claimed that the Road Board’s notice to appellant to clear obstructions was bad. Other technical objections were also raised by counsel who, stated, however, that appellant relied on the merits of his case. Evidence as to the nature and effect of the drainage work done by both- boards in the locality In question was given by 0. R. Farrer, civil engineer, Hamilton. . For the Tamahere Road Board Mr Swarbrlck contended that when previous occupiers of appellant’s property had kept the drains constructed in the earlier days of settlement open there had been no trouble in keeping the road dry. But when Jones acquired the property he did nothing to the drains, and thereby caused all the trouble and arrested progress. This outlet through Jones’ present property bad been made 20 years ago, and, if entitled to It, the then owners could have made objection and obtained compensation, but the present owner had no right to it. Jones had consistently blocked any. proposal to raise a loan and be rated in order to put a drain through. The Road Board was now, counsel contended, entitled to require that the drain should be kept open. . . ~ W. Lee Martin, chairman of the Tamahere Road Board, gave evidence as to the instructions given to the foreman regarding clearing out the road drain. The drain had not been deepened at all. Job Hinton, surfaceman for the Tamahere Road Board, who had known the locality since 1864, gave the history of drainage and roading operations in the neighbourhood at different periods. The road was now wet because the drain kept clear previously by former owners of Jones’ property had not been cleared since Jones acquired it, so that its course could now he little more than distinguished. The road drain had not been deepened. Andrew Rainey, fanner, said he had known the Tamahere district for about thirty years, and had previously occupied the land now held by Jones. No attention had been given the drain from the road for about ten or fifteen years, and It was now almost completely filled up. However, the main drain had probably been kept clean. If the drain In question was cleaned out it would completely drain the road. To Mr Northcroft: Witness in his experience knew that with the consolidation of swamp land there was a tendency for the drain to become shallower. However, in ■ the present case witness was prepared to say that there was no subsidence. When the drain was first constructed it caused a detriment to the property, and the other drain was then put In to minimise its effect, and for the benefit of the' property. This closing the evidence for the Board, Mr Swarbrick requested that his Worship should view the actual locality, but the Magistrate replied that the facts before him were quite sufficient for him to give his decision summarily. His Worship held that it was not the intention of the legislators that the Act should apply to cases of this kind. It was not reasonable to suppose that Jones could be made to pay all the costs of cleaning out a drain that was there to serve all the ratepayers. His Worship therefore ordered that the ruling of the Board should have no effect.