SPECIAL LAW REPORTS.

Dominion, Volume 1, Issue 12, 9 October 1907, Page 3

SPECIAL LAW REPORTS.

FULL COURT.

Their Honours the Chief Justice (Sir Robort Stout) and Justices Williams, Donniston, Cooper, and Button tool; their seats at 10.30 a.m. yesterday. FITCHETT AND HARRINGTON V. THE CORPORATION. Tho hearing of argument was commonced in the cases of Ashton Buddie Fitchett. (claimant) and the Mayor, Councillors and Citiscns-of the City oi Wellington (respondents) and Jeremiah Harrington (claimant) and tho same, respondents. - These cases were, it will bo remembered, heard together in a Compensation Court consisting of His Honour Mr. Justice Cooper and Messrs. J. C. McKorrow .(assessor for Fitehott); the Hon. T. K. McDonald (assessor for Harrington) and Mr. C. J. Craw-ford-(assessor for respondents). In the course of the case, counsel raised certain questions: and His Honour Mr. Justico Cooper decided to state a caio ,for the opinion of the Supreme Court. Tho case, as stated, follows: — "By proclamation by His.Excellency the Governor, dated June 1, 1906, .i property in Upper Kaiwarra (consisting of 302 acres 2 roods 35 perches) .was taken,and vested in tho Corporation, for, the purpose of the extension of its waterworks at Ifarori., The claimant Fitchett was the owner in fee simple of the land and the' claimant Harrington the lessee thereof. Fitchett claims £17,138 lis. as compensation for the, taking! of the land and for tho injurious affection of the balance of tho lands not takon.- Harrington claims the sum of £5991 in respect of- his interest as. lessee in the lands taken and in respect of the injurious affection of tho balance of the lands not taken. "A plan attached to this caso shows the- area, and position. of the lands taken, and tho relative positions ,rf such lands and of the Karori Reservoir. The Karori Reservoir is a part of tho ' waterworks ' of the. respondent Corporation, and within tho meaning of the ..term 'waterworks', as defined in section 287 pf 'The Municipal Corporations Apt, 1900.'• Tho streams which are plan are of two classes; some of them rise in land beyond the lands taken, and some rise in the lands -.takon. - The source of .the main-streaimis beyond tho lands taken. It "runs from south west to north east along the bonndary of the lands taken, 1 , and. passes through land delineated on tho plan and' described as tho tiqnland, and'is intercepted by tho Karori''Resorvoir.' Tho 'other' streams, the'greater number of wliich have' thoir source- within the lands.' taken,- are feeders to' this' main stream, and tho inpply of water for the Karori Reservoir is obtained from the waters flowing into it from tho main stream and from tho-streams which" feed tho main stream. The lands . taken' ' ;from; the claimants in, these proceedings and from !othors by the respondents aro described by Mr. Morton, 'the respondents' engineer, and by Dr. Frcngley, the District Health -Officer' of, the Public Health Department,; Wellington, Jas -tho '.watershed' .or ,'catchrneijt area' of itho streams which flow., into the' main streamy and of .that portion of themain stream along the boundary of the lands taken,: and consequently: as part of the '.watershed ' used for supplying water to the" Karori Reservoir, a part of tho respondents'■ waterworks. Tho Karori Reservoir -was; constructed and' fed' by tho main' stream, and used as a part of the waterworks. of tho respondent Corporation, before tho claimants' lands were taken, and the land on the plan shown :as Corporation - land was acquired many, years ago for tho pur- v poses wator to the city of Wellington.: '■'~ :'-'.. ' „ ' 'Section' 305' of 'The .Municipal Corporations Act. 1900'' is as follows:—' If any foul-liquid or matter is thrown,, or poured, or suffered or allowed to fall or flow into any water or watershed being.a part of or taken or used for supplying wator to any waterworks, the person so offor.ding is liable, to a' penalty not exce'ding' £100, and to a further penalty riot ' exceeding , £10 for every day during which such offence is continued after such person has 'received notice in writing from tho Council ito discontinue .thosamo.' ■ There, is no definition of; ' water ' or ; watershed'', in tho' Act', but 'waterworks' : s interpreted as including 'all-streams and waters and all rights appertaining thereto, and all - lands, .watersheds', catchwater,. area, reservoirs, dams, tanks, arid'pipes, and all buildings, machinery, arid appliances,of every kind acquired or constructed by tho Council of the -Borough under the. authority of. this Act for collecting or conveying water for or to tho Brough or, any! part or beyond the Bcrough, undor the provision m that behalf hereinafter • contained.' 'Waterworks' , which hadbeori purchased, or acquired, or constructed,'before tho Act of 1900 was passed are deemed to have been purchased or acquired, or made, constructed -and. established under the Act of 1900,.. and all. the' provisions of tho Act.of 1900 apply to such waterworks accordingly/ ', ' "The valiio'of tho lands taken is, according to the ovidence of the Claimants'witnesses, that of suburban lands capable of being roaded and subdivided into lots for i-esidental. purposes, and the claims "for compensation aro , substantially based upon such evidence. The respondents contend (1) that tho. effect of section 305 of tho Act of 1900 is to prevent such subdivision, and that unless very oxponsive drainago works ■ are constructed, sufficiently effective to carry off all foul liquid or.matter arisingfrom the uso of tho land as residential areas, .the subdivisioif of. tho land a»d tho erection thereon of resid-ences-and their habitation must result in the fouling of tho water supplied to tho. Karori Reservoir; and, therefore, that at tho time"the lands were taken they could not havo.beon subdivided iirfo lots''for residential purposes without, such drainage. It may bo assumed for. tho'-purposes, of-this special case thtt .the cost of the construction of such drainngo works would bo prohibitive; The respondents also contend (2) that tho lands, although .otherwise suitable for ri dairy farm, could not at tho time they were taken, have been legally used for such purpose, as depasturing stock Upon the lands would result in tho fbuling of tho water supplied to tho resorvoir. If the respondents' first contention, is correct, then the compensation to be awarded to tho claimants must bo assessed upon a basis excluding the value of the lands taken as suburban land capable of being subdivided into residential areas. If the respondents' first and second contentions aro correct, then the value of the land taken will bo still further reduced.

"The questions tor the opinion of the Court are:—(l) What is tho true construction, meaning, and offect of section 305 of 'Tho Municipal Corporations Act, 1000'? (2) What is the moaning of the term 'watershed' ns used in that section and in section 287 of tho Act? (3) Whnt is the meaning of 'catohwatcr area' as used in section 287?" Mr. Chapman, K.C., .with him Mr. Movison, appeared for claimant Fitchcttj.Mr. Findl'ay for claimant Harrington; Mr. Gray (with him Mr. O'Shea) for "the Corporation. Argument having been hoard, His Honfthr the Chief. Justice intimated that a majority ot tho Court' were of opinion that the claimants should bo gin the ease. Mr. Chapman (on behalf of chimant Fitchott) submitted that the word "watershed" \va3 inconsistently used in .tho statute. Ho contended (1) that vested rights could not bo disturbed unless by express words or necessary

implication;' and (2) that such- rights could -not bo taken away at all without compensation. Counsel cited a number of cases in support of his contention. Mr. Morison (who appeared with Mr. Chapman) and Mr. Findlay (counsel for claimant Harrington) then briefly addressed the Court. Mr.- Gray (for the respondents; submitted that tho word "watershed" meant "catchment area," and that, as tho water from the land in question found its way into tho streams which supplied the reservoirs, tho Corporation "used" the. claimant's property (in tho sense of its being, a watershed) as well as tho water. Mr. O'Shea followed on tho samo side. Mr. Chapman having replied briefly, tho Court intimated that it would take timo to, eousidor its judgment.