RAILWAY AND BRIDGE.

Dominion, Volume 3, Issue 839, 10 June 1910, Page 6

RAILWAY AND BRIDGE.

AN ALTERED ROUTE. IMPORTANT LEGAL OPINION. CBy TeleitraDh.-BDccial Correspondent..' Auckland, June 9. An important legal opinion lias been given by Mr. E.M'Veagh, a prominent lawyer here, with respect to the devia-' lion ordered by the Hon. K. M'Kenzie in the. route, of the North Auckland, Railway. Mr. T. Coates, a well-known settler, stated a case to Mr. M'Veagh, as follows: By the Railway Authorisation Act, 1902, the Governor, was empowered from time to time iu. the name and on behalf of his Majesty to undertake or enter into. contracts for the construction oMhe railways . mentioned in the schedule to the Act td the extent specified in such schedule. The schedule contained the following:— . "Name of railway, Helensviile north-, wards; extent- authorised, an! extension from a point on the southern boundary of Section 8, Block XVI, Otaniatea.; Survey District, to' Maungaturoto; length about 23 miles." The Governor subsequent.lv, by a proclamation, defined the middle line of the railway. By the terms of the proclamation the line.would have been carried to or to the vicinity of the township of Mauugaturoto. .By a later proclamation the Governor revoked his former proclamation, and materially altered the direction of the. line. The alteration was of such a character that the line was carried a great deal to the west of the course defined in the first'mentioned proclamation, and instead of terminating at the township of Maungaturoto terminates in the district of the same name, but at a considerable distance from the townchip. The construction of the line along the altered route necessitates the building of a railway bridge at Young's Point to enable the line to be carried across the Otamntcn Eiver, which at the spot where it is proposed to throw the bridge across, and for a considerable distance higher up the liver, is .navigable for vessels of the scow type. It is intended that there shall be no opening span in - the. bridge. The result will be that the whole of the river above the- bridge will be- closed for all but tho smallest class of vessels, such as motorlaunches. Mr. Coates owns land above the bridge, but it does not abut upon the river or any of its Ho has nccesii, however, by :i road to the river above the projected bridge. If the bridge is built as proposed he will be unable to ship from his land a largo' quantity of stono which can be quarried upon hia property, and for which, owing to the excellence of its quality, there is likely to be a large demand. In short the construction of tho bridge in the manner proposed will materially reduce the value of his prowji'ty owing to the practical closing of the waterway. Mr. M'Veagh summarises his opinion of Sir. Coates's righto in the circumstances, as follows:--(1) That a deviation of the railway of such a character that the township of Maiinßaturoto will not be a terminus is unauthorised.; ■ , ■ (2) That another terminus cannot, ar has been attempted, be created by Order-in,-Council, arid that the consent of Parliament is necessary for such.'a purpose. (3) That the construction: of a'bridge across the Otamatea River in such a manner as to obstruct the navigation thereof by the class of vessels that used to.na.7iState the samo would be a -wrongful act for which owners of land abutting, inn mediately upon the river above the pro-' posed bridge would be entitled-to maintain a suit for damages against tho King under the Crown Suits Act, 19(18.

(4) That if the construction of such, a; bridge were lawful such owners would b* untitloJ to compensation under the Public Works Act,. IMS. ■ ...

(o) Assuming the construction of the., bridge to be unlawful, that an injunction, could be obtained restraining the contractor and workmen from building the: bridge so as'to interfere with the navigation, of the' river. 1 ■". •

(G) That landowners wnose'property wasj "being entered on "for. the- construction of the deviation would likewise be entitled, to obtain an injunction restraining the ' contractor and .workmen from trespassingthereon. ...