COURT OF APPEAL

Dominion, Volume 13, Issue 11, 8 October 1919, Page 3

COURT OF APPEAL

A ROAD NUISANCE LIABILITIES OF A LOCAL BODY The Court of Appeal was engaged yesterday iii ■hearing the appeal of Stephen John Fortescue against a decision of His Honour Mr. .Justice Cooper. On the Bench were His Honour the Chief Justice (Sir Eobert Stout), Mr. Justico Chapman, Mr. Justice Sim, and Mr. Justice nosking. Fortescuo is the owner of 3 acres 19 % perches, part of the Greenmendows Estate, in the borough of Te Awanmtu, mid fronting M'Garry Avenue, which avenue or road was formed nnd dedicated on May 11. 1913. At that tune tho road was in Waipa county. Te Awamutu borough not having then been constituted. In the course of the formation of the road a covered drain 42ft. in length was put in running across the road opposite the appellant's land, and the dram was so constructed a-s to collect storm Witter from the road, which slopes down from both directions to the drain. The water entered the drain, and was discharged in such a position that it flowed on appellant's land. 'The dTain, it was alleged, constituted a nuisance, causing damage to the appellant's land by the concentration and.discharge'of storm water. In October, 1915. appellant called upon Te-Awamutu Borough Council to nbnle the nuisance, which the council refused to do, aid had continued to permit the nuisance. Since then water had been discharged from the drain on to the land, nnd hr/.l injured apple trees. Forescue brought an action in the' Supremo Court. Viioklar.d. against Te Awamutu Borough Council, claiming .£75 damages, and an injunction restraining the council from permitting' water to be. discharged on to the land.. Mr. Justice Conner, who heard the case, nonsuited Fortescue on the ground that he had not established a cause of action, and it was against this judgment that Fortesc.ue appealed.

Dr. IT. D. Bamford. of Auckland, anpenred for the. appellant, and Mr. S. Swarbrick. oT Hamilton, for Te Awamutti borough. I)r. Bamford, in opening for the appelant, said (li.it before (lie Court could nils that dedication legalised a nuisance by pro'vcntinT the Tight of injunction Hia clearest nu'tfiority was .rcnuired. The .law wa,s in an unsettled stole, and perhaps it was in the public interest- that, this case had been 'brought. Counsel submitted: (1) That the work amounted to a nuisance. The Chief Justice: It is not a nuisance on the public road. Counsel: The discharge of water on to appellants land amounted to a nuisance. Continuinsr. Dr. B'linford said that his second submission was that the nuisance was created by a private person while owner of the land on which the rnnd was laid out. (3) An injunction could, before dedication, have been obtained against the private individual. (-1) The subsequent dedication did not destroy the right .of nri injunction. An injunction could only be. obtained, if .at nil, against the body having control of the road. That was obvious. (.(>) The fee*simple and control of tile road were vested in tlio Borough Council. t<) The nuisance was a'continuing one. . (S.i Tho Borough Council was umler (he same liability, to iibnU> as a private person occupying the land. (9) The borough was equally liable for "damages, at. all events, atter' notice requiring it to abate. (10) The borough's, liability was not one imposed by .statute, but by common law as a consequence of its ownership and control of the road, and of its exclusive power to interfere -.villi the work. (11) This being so the doctrine that a public authority controlling a highway was not liable for non-feasance clul not apply, and (12) if it did apply, then to permit a concentration of water to overflow on to the appellant's land was a misfeasance within tlie meaning of the rule. Counsel quoted'voluminous-authorities in support of -his contention. Mr. Swarbrick, for the defendant borongli, said hf•desired to repeat the four points' submitted in the Court below. They were: (1) That, if the drain and culvert caused damage to appellant's land as alleged, his remedy was by claim under the Public "Works Act And not by action at law; (2) that at tho time the i road and drain were constructed the | appellant, ,if hu had any iitlc to the ' land; jiuwt be held to have consented to ! the construction of the road, drain and i culvert, and by that consent to be deemed to be estopped by acquiescence; (3) I ihat at the time the drain and culvert l.werc constructed the same person was 1 the owner of the land on which the i dram was constructed, and also the land ! alleged to be damaged by the water, and ! (4) that plaintiff's complaint as far as I the local authority was concerned was I merely that, of non-feasance and not acl tioimble. These grounds were elaborated. | hy counsel in the course of his argument, i and several cases bearing out his contentions were quoted, more particularly whether this was non-feasance or misfeasance on the part of Tc Awnmutu Borough Council. The Court reserved decision.