The Daily Telegraph MONDAY, JANUARY 10, 1881.

Daily Telegraph (Napier), Issue 2977, 10 January 1881, Page 2

The Daily Telegraph MONDAY, JANUARY 10, 1881.

A cask of great importance to Municipal Corporations was decided last week by the Court of Appeal. Some time ago, it may be remembered, \vc referred in these columns to an action that a Mr Williams brought against the Corporation of Wellington for damages caused by the lowering of Willis-street. Mr Williams obtained a verdict for £460 as compensation for tbe depreciation in value of his property. The Corporation appealed against the decision, and the Chief Justice reversed the judgment. Then Mr Williams moved in the Appeal Court, and last Tuesday the following judgment was given :—"By section 185 of the Municipal Corporation's Act, 1576, all streets within a borough—that is, all public streets-are vested in the Corporation, and are under the control of the Council, who have power, inter alia, to construct and repair all streets with such materials and in such manner as the Council think fit, and to alter the course of the streets. If these provisions | stood alone therein, the absence of any clause limiting their operation, we should consider that the Council had power, if they considered it advisable, in the interess of tbe citizens generally, to improve any street by raising or lowering it. We see no reason why the Court should endeavor to construe this section so as to restrict the powers given to the Council, who hold the streets as trustees for the public, and who, it is to be presumed, will exercise the powers conferred upon them for the public advantage. This being the case, the Council would not be responsible for any damage that might accidentally accrue to individual property holders by an alteration of the level of a street, unless either the power given by section 185 are in any particus lar case taken away, so as to give the persons injured a right of action, or unless the Act gives an express right to compensation. Section 190 of the Act directs that the Council is to cause a map of the borough to be made, showing all the streets and private streets therein, with the levels thereof, as the same are or are intended to be, or will be required to be permanently constructed. We are of opinion that this section intends to leave it entirely to the Council to decide whether any particular street had been permanently constructed. The duty of constructing public streets and the control if such streets is cast upon the Council, and surely it is for the Council to say whether they consider any particular street to be so constructed as never hereafter, so far as human foresight can discern, to require alteration. Nor do we think that this construction of section 190 is affected by section 192. We think that the power given by that section to the Couucil, until the map mentioned in section 190 is made, to fix the level of any street, is not qualified by the words " Not theretofore constructed," and that the word " constructed " means permanently constructed, as mentioned in section 190. It may be that the question as to whether a private street had been permanently constructed or not, being a question between individuals and tbe Corporation, would properly be decided by an outside tribunal if the fact were in dispute, but the question of whether a public street has or has not been permanently constructed, is one to be decided by the public alone, through the Corporation, their represeatatives. The circumstance, therefore, that Willis-street has been in fact laid out, graded and constructed for many years, as stated in the case, would not compel the Council to place on the map of the Borough, to be deposited under section!9o, the then existing level of Willis-street, and until such a map is deposited, the Council could fix what level they thought fit under section 192. As the level had not been fixed tbe appellant is therefore not entitled to compensation under section 194 And as the Corporation did no more than they were justified in doing, he has no right of action against them. Nor do we think that appellant is entitled to compensation under section 180. That section seems to provide only for compensation where land is taken, and moreover section 194, by expressly giving compensation where a level has been fixed and subsequently altered, impliedly negatives the idea that compensation is to be given for interfering with the road before the level is fixed. It is unnessary to cite authorities, but tbe American cases of Dorman v. the city of Jacksonville (7, American Reports, 253. and Simmonds v. the city of Camden (7, American Reports, 620), are useful and interesting as illustrating the law on the subject of the liability of corporations for the alteration of street levels. With reference to tho proceedure adopted by the Corporation, we think it was the most simple and efficient that could have been adopted under the circumstances. For these reasons we are of opinion that the appeal must be dismissed with costs."