CLAIM FOR DAMAGES

Hokitika Guardian, 18 December 1925, Page 4

CLAIM FOR DAMAGES

THE WARDEN'S JUDGMENT. At the Warden's Court yesterday. Warden Mcldrum gave judgment as follows in the suit of .Moore ami Ruchanan M.r .Murdoch, v. Mayor and Councillors ol the Borough of Ro.ss. {MI for damages arising out of the overflowing ol the defendant s dam. Til,, ease had occupied the Court on t„ ( > occasions at Russ and once at liokuil.a. and wa- brought to a conclusion ve.-fenlay morning when the Warden gave judgment as follows : In ihis case Hie plaintiffs as owner and mortgagee, claim .Clfid for damages done t'i the land and house of plaintiff. Moore, by the bursting and breaking away of the defendants' dam. During; a heavy rainfall on the night of .- ( j, .March. I !)25. a large quantity of earth had become loosened from the wall ot the dam and slipped down upon Moore's property. .Ml- Murdoch bases the? plaintiffs claims on two grounds : |. That I lie defendants’ title is under the Mining Act which imposes upon aiiv local authority holding a license for a water right the same liabilitios as m the case ol a private per-

That the deiemJauts committed ai ts of misfeasance which were tlm proximate causes ot the damage, firstly they used the dam for a purpose other than that for which it was granted, secondly they blocked tip the exit ol the race and led the dam ; and till*dl y thev blocked up the live-wash thus hindering the escape of the overflow waters from the dam.

Mr ,'Jovce contends that the detend- , mts hold both dam and water race under the Municipal Corporations Act. and that in exercising their statutory powers they arc not liable to acts ol non-feasance hut only for acts ol misfeasance which he maintains have not been proved in the present case. The title to the dam is a " License fur a Dam,” granted under the Mining Act. 13!!S, to the Mont D’or G.M. and Water Race Coy l.td.. and transferred to the defendants in October. lIKTi. The following condition is in the schedule to the license: —" Water to be used for mining;,” and the condition was never altered. !l is to be inlerreil however that the Warden, who consented to the transfer, knew the purpose foi' which.the (lam was to he used, and that it was through an oversight the purpose was not altered. In any i use I do mil think the conditions affects the liability of the. defendants as between the parties. The title to the water race is a License for a Water Race,'’ granted under “The Mining Act. 1 DOS.” Tinrace is described as being 70 chains in length, commencing at .Jones' Creek and tei niimi t ing at the Borough Rcser\mr know ii a- "The Brigade Dam, igg, ihe dam above referred to. The rare wa-. many veal's ago extended and at the time of the " slip " was still exiemled lor a distance of , chains to l lie we-I ol Die dam. This brings me io .Mr Murdoch's first point. Sort ion Ilfs;. - u b-sect ion 2. of "The -Mining Acl. ISOS," and sections t'-’.'L sub-sec-tion ib) of "The Mining Act. 100'.” arc in the sluin' words, viz., •• Subject to tlm modification m this -eel ion hrreimi !i< r eomninod every -itch license shall confer upon the local aulliority the same rights, power-, and remedies and impose upon it t lie si me liabilities as in the cnu.se ol a private person." lie ((intends that this provision entirely lakes away from the defendants tlieir common law exemption from liability lo actions for damages for uoii-I'ca-aiKe and render them liaDie in the -an-" way as private persons. In nthei aoi, |-. 1 1 1 ; 1 1 the decision in Hylands v f-'lct'-her apolie, in ibe pre-enl case. The rule ol t cal ' a ,c v. as tlm- ; luted Lord ('ra nwort h "ll a per ••in brings or accumulates mi his lands anything which, if it should e- ( ape. IllilV calls' hi peril. It ii dees c..pnpe ami cause daiii.-ig”. lie is responsible, however ean-iiil lie may have been and whatever |.recant ion- le may liave taken to prevent tie- damages. The common law (-••.emption referred to is thus expressed by --:r .I<ii ,ll s ; almond in Law of Torino edition, page 353 : In hill' absrmr of any express -taUit■: r y au t boldly lo Dial effect no action V. ill lie against any local a lit linrity intrusted with the caie ol highways for damage suffered in rnnsrquem-e ol omissions of |he dcleiu la ll I s to perform that statutory duty ol keeping tlm highway.- in repair ; but this exemption from liability- extend. liul\ 111 eaU'-ex of pun- nuiifea-.a m-i> and Die local aiiiiiortr v i- i e .],oiisible in damages lor any active misfeasance by wliiili the bidiwa.v i- re 11 de red da ngeroit-.' ’ 'I he I! Ist f|Ueslion Dion io he deeidud i-, wlieilmr the sal,-eel ion rei erred in :hi Dm Mining; Ads of Is‘is. and I Oils is io he regarded as an express statutory . provision.-, to the elfect that an action for damages will be against a local aiilhcritv for ads of pure non-feasance as in lhe ca-e of a private person, or on Die oilier hand, whether the subsection i. In be interpreted as merely imposing upon the local authoritv the liabilities of a private person in carrying out its duties as a licensee towards the Crown.

'I ’■:<• true meaning, I think. is to ho obtained by i ompnriug the opening words of 1 lie subseet ion. to wit - " s ; uh.ject to the modifications in this seetion horcinn Iter contained,’' with Hie modifications that actually follows. These modifications deal with exemption from fees and from liability to forfeiture or abandonment and other mailers a.- hot ween the licensee and the (d own. There is no reference of any kind to the liability of the licensee to private eersims. ] think, therefore, that the " liabilities " imposed on the local authority by the subvert ion must he interpreted as men nine-i t'liahili I ies tovardstke Crown and not with those towards private persons. I therefore uphold .Mr Joyce's contentions that the defendant's common law exemption as a local authority from liability to action for men' non-feasance is not affected by the provisions of the Minim; Act. I think, however, that on the second ”rouml. i. 0.. for act of mis-fen-nme which rendered the dam and water races dangerous the plaintiffs are entitled to succeed. Several specific ads have been proved. First they blocked up the western end of the expressions of the water race, causing both it and the lower end of the race proper to retain water to the depth of It; incites. This was done to maintain a reserve supply tor borough purposes. But the defendants had no Jocrnl right to store up that reserve supply. They made and used a second dam without obtaining: a second license. Tito effect of the 'tore v.as in hold up any sudden rush of water down the race and throw it hack into tin- dam. And this appears to he what happened on the night of the oth March, a largo quantity of water coming down the rate was thrown hack into the dam and overflowed its hanks. A second net of misfeasance was in constructing the live-wash through the built tin face of the dam.

instead of through solid ground. Mr Gillies gave evidence as to the danger incurred in doing this and quoted authority in his support. He considered it one of the causes of the slip. A third act lay in blocking the free outflow of surplus water from the dam by putting in a -I inch obstruction in the live-wash, aftering the depth from lip; to (ii inches. The result was that the bye-wash was rendered less able to carry off the overflow from the dam and on the night of March sth caused the surplus waters to force over the dam and the bye-wash and to soak into the built-up wall of Ihe dam. This xoakage was added to by a fourth act of misfeasance, viz., the leaving of an open drop of !) lent from the end of the live-wash to the ditch below, which was used to carry away the normal overflow from the byewash.

The falling water that missed the ditch below fell on the foot of the drain wall and helped to sol ten its foundation. When the. slip started it brought down with it; the water pipes leading from the dam. These appear to have broken when they fell, setting free the water which carried the slip on D the plaintillV land. In niy opinion the acts of misfeasance referred to wore the cause of the hank .giving way. I am unable to accept tin' defence of

" (is major." The rainfall was heavy, but it- was not abnormal. Had an abnormal rainfall been the sole cause of Die slip then there would have been other slips along the hill face. hut there was no sign of one.

There remains the question of damages. There was little evidence rendered on tin’s point hut further evidence lias been given 10-day. I assess damages to the house and grounds at l'H5 and general damages at £25. Judgment is therefore for the plaintill's for Cl It) and costs totalling £23 Is Id.