COURT OF APPEAL.

Dominion, Volume 3, Issue 867, 13 July 1910, Page 11

COURT OF APPEAL.

RAILWAY WORKS AND COMPENSATION. THE TIME LIMIT. Tho Court of Appeal was occupied all yesterday in hearing argument as to the interpretation of certain words in the Public Works Act, 1908, as applied to a claim for compensation by a West Coast land-owner, who alleged that his property had been damaged by the construction works of tho Ngahere-Black-ball railway. The case was heard by tho Chief Justice (Sir Robert Stout), Mr. Justice' Williams, Mr.. Justice Edwards, and Mr. Justice Cooper.

Tho plaintiff was James O'Brien, settler, formerly of Ngahere, but now of Wellington. The defendants were: Mr. Justice Chapman, George Thomas Moss, auctioneer, of Grey mouth, and Joseph Primo Maxwell, civil engineer, of Wellington, being respectively the president and assessors constituting a Compensation Court, under the Public Works Act; and tho Minister for Public Works.

Mr. C. P. Skcrrelt, K.C., with him Mr. H. F. Johnston, appeared for the plaintiff O'Brien; Mr.-Ji.W. Salmond (Solicitor-General), and Mr. T. Neave argued defendant's case.

In tho Supremo Court, tho plaintiff O'Brien moved for a writ of mandamus, directed to the three first-named defendants, commanding them, as a Compensation Court, to hear tho compensation claim made by O'Brien. Tho claim was mr.do against tho Minister for Public Works for alleged injurious affection of O'Brien's land, through the construction of the. ' Ngahere-Blackball railway, including a railroad embankment from the town of Ngahere to the bank of 'tho Grey River. It was alleged that the erection of tho embankment, and the exclusion of four bridges originally intended to bo erected, had interrupted tho flow of streams running across tho line of the bridges and embankment, with the result that O'Brien's land had been injuriously affected, and had greatly depreciated in value. Tho works wero commenced in 1906, and a claim for £1000 compensation was made upon the Minister for Public Works in September, 1909. Tho motion for a writ of mandamus was based upon the ground that the Compensation Court had unlawfully refused to adjudicate upon the claim, having wrongfully declined jurisdiction. The motion was brought before the Chief Justice in June 24 last, when, by-consent of-the parties, it was removed into tho Court of Appeal. Argument hinged on the reading of Section 37 of tho Public Works Act: No claim for compensation under this Act or any former Act relating to public works shall be made (in respect of any lands taken) after a period of five years after tho date of the Proclamation taking the said lands, or (in respect of any. damago done) after a period of twelve months after the execution of the works out of which such claim has arisen or may hereafter arise; and all right and title to any compensa- , tion in respect of such lands or for ' damage arising out of the execution, of such works, as tho case may be, shall, after such respective periods, absolutely cease. The question was as to tho meaning of tho words' "after the execution of tho works," used in this section. The Court was asked to decide whether, where a man claimed compensation for injury to his lund through the building of a railway embankment, which,,, ho alleged, interrupted the drainage, his claim not being made until more than twelve months after the erection, of the embankment, that claim was in time, within tho meaning of the Act. Mr. Skerrett contended that the words "execution of, the works" meant the completion of the whole works —the whole railway, or, at. least, some defined portion of the railway as a railway. A claim would therefore he in time if it were filed within twelve months after the completion of some defined portion of tho railway as a going concern. . .... Mr. Salmond urged that the words referred to the particular part of the work—in this case tho embankment — which gave rise to ths damage, and that the period of twelve months provided by tho Statute commenced from the completion of that part of tho work out of which tho damage arose. Railways in New Zealand were never completed or "executed,"'said Mr. Salmond; they were always being added to, and brought up to date. In reply, Mr. Skerrett said that it was wrong to hold that a railway work never ended. Every extension orvimprovement of a lino must be regarded as a separate and independent work. In a Hawera case, where water for reticulation purposes was taken from a stream above an electric light company's reservoir, the exact amount of the damage could not be measured until the water was actually turned on.

The Court reserved its decision.