EROSION OF ROADS.

Hauraki Plains Gazette, Volume XXXV, Issue 4740, 20 August 1924, Page 3

EROSION OF ROADS.

POSITION ON THE PLAINS. A LEGAL OPINION. In view of the damage being caused to many of the roads on the Hauraki Plains by the erosion from drains the following legal opinion, given by Mr E. Walton to the County Council recently in regard to the damage done to Maukoro Road, will be of interest: “The facts upon which my opinion is requested are as follows : “Prior to 1912 Messrs Pollen, and Haszard owned a piece of land which adjoined a block owned by the Maukoro Estate Company. The company diverted the Maukoro Stream into a drain which it dug along its common boundary with Messrs Pollen and Haszard’s land. In 1912 Messrs Pollen and Haszard dedicated a road out of their piece of land. The said drain is situate on the southern boundary of the said road. At the point of diversion of the Maukoro Stream the water has been and still is eroding the side of the said road. "I am now asked to advise as to the Ci uncil’s position in relation to the damage caused to the road by such erosion. "Such erosion is an instance of a public nuisance to a highway, which may be defined as any act or omission without lawful justification whereby the exercise of the public right of passage is obstructed or rendered dangerous. ‘‘A public nuisance amounts to a criminal offence, and may be made the subject of asi indictment under the Crimes Act, 1908. It may also be restricted by a civil proceeding known as an action for an injunction at the suit of the Attorney-General acting at the relation of the Council. "On the facts stated I am in doubt as to whether the public nuisance under review is actionable because there is an exception to the abovementioned rule of law in that when a road is dedicated to the public it is presumed to be so dedicated on the terms that the public right of passage is to be subject to all obstructions and dangl rs which exist at the time of dedication : and the adjoining ownerjs and occupiers are therefore under no liability for maintaining such obstructions or dangers or for any mischief that may result therefrom. I have taken the wording of the exception from Mr Justice Salmond’s text-book. You will notice that the exception applies where the dangers existed at the time cf dedication.

“in Jenks’ Digest the exception is exception is given as follows: ‘But a highway may have been dedicated with a cause of danger on or near it, in which case there is obligation bn the adjoining owner to fence hip dangerous property, so long as he does not do anything to increase the risk.’ "In Jerks’ Digest the exception is stated to be: ‘But a highway may be dedicated to the public subject to what would otherwise be a nuisance.’ “From the foregoing it is doubtful whether the Council has any remedy on the ground of the erosion amounting to a public nuisance.

"On the other hand, there is no liability on the Council to abate the jitiisance. The Council would not be liable for any accident or damage arising from the road becoming dangerous But I take it that the Council ig more concerned .with its positive rights, and, assuming .that that is so, I am of opinion that the Council would be within its rights to repair the road and prevent future erosion. “As the southern boundary of the road is also the boundary between the Piako and Hauraki Plains counties, the Hauraki Plains County Council could claim half the cost of repairs and maintenance from the Piako County Council by using the powers given it in the Public Works A„ct. The power to enter upon private land and repair the drain is given by the Land Drainage Act, 1908. While the Council has these powers, it would be better, I think, if it came to some satisfactory arrangement with the Piako County Council.”