Farmer Ordered To Pay Damages

Chronicle (Levin), 5 February 1949, Page 3

Farmer Ordered To Pay Damages

In a reserved judgment released yesterday Mr. Justice Gresson found in favour of the Makerua Drainage Board in the claim made by the board against P. F. Wall, a farmer, residing at Hinerangi, Hatuma (Hawke's Bay) in the Supreme (Jourt at Palmerston North last November for damages resulting from alleged illegal interference with a stopbank on the Tokomaru Stream at , Makerua. I The board claimed from "Wall the . sum of £1.99 Gs 9d for the repa'ration j of damage to the stopbank foiJowing breacliing by a fLood, and the cost of pumping out surplus water. The claini was based 011 the followiug grounds (a) That defendant had wilfully and malieiously cut and damaged a bank constructed by the board on defendant 's propcrty beside the Tokomaru Htrcam, a drain coutroiled and vcsted iu the board; (b) That without being authorised by the board and without consent defendant had made a branfch draiu into the Tokomaru Stream. The board sought to recover (a) £112 Ss 2d the cost of repairing the bank, removiug pipes aud floodgate and remakiug the brancli drain; (b) £8(3 18s 7d, the cost of pumping out fiood waters. The (lefence had beeu raised that defeudant had incurred 110 liability by puttiug a ]>i pelirie through a bank 011 liis owu propcrty; that the floodiug resulting from Ihe escape of waters was uot the consequence of wliat had beeu done to the bank, but was inevitable beeause of the level the fLood waters had "reached in the Mauawatu Itiver into whicli Ihe Tokomaru Stream discharges, aird in the Tokomaru and other streams; that it was a coinciddhce that the break occurred just where it did, being due to quite other eauses than the reeent disturbance to tJio bank. "I hold that the bank gave as it did at the point where it had been cut through and remade, aud that the disturbance it had sull'cred had rendered it unequal to the strain it was call#d' upon to bear, ' ' stated Mr. J ustiee Gresson, who found that the Drainage Board 's rigiit of management and coutrol gave it right of recovery of tlie cost of roston ng the bank. The expense

of the additional pumping was somethiug quite dift'erent, however, and, apart altogether from the fact that exactly wliat additional cost was occasioned by the breachiug of the stopbank was very difficult of estimation. He did not think there was any provision for the recovery of that sum. "It is to be notcd," said his Honour, "that the Boil Conservation aud Rivers Coutrol A'ct 1941, uuder wliioh Uatchinent Boards are set up, .the funetions of whicli inciude a supervision of the exercise of drainage and river boards of their powers, has provided in Bections 154 and 155 remedies much wider than existed hitherto. Wection 154 (2) makes it clear that the right to recover the cost of .restoring or repairing the damage or injury is quite independent of any prosecution. " His Honour gave judgment against defendant for £112 8s 2d, plus costs and disbursements. At the Supreme Court liearing Messrs. T. P. Cleary and T. AI. N. Itodgers appeared for tiie Makerua Drainage Board, aud iMessrs. G. I. McGregor aud. J. A. L. Bennett for Wall.