STOPBANK PROTECTION.

Hauraki Plains Gazette, Volume XXXVIII, Issue 5180, 19 September 1927, Page 2

STOPBANK PROTECTION.

DAMAGE BY SETTLERS.

A LEGAL OPINION. The opinion that a drainage board had no power to insist upon the fencing of ..a river stop-bank, was received by the Hauraki United Drainage from its legal adviser, Mr E. L. Walton, on Friday last. Mr Walton stated

“In Aorangi Land Drainage Board v. Pearce, 16, C.L.R., 189, it was held that a drainage board could compel an adjoining owner to pay half the cost of a boundary fence between the land of the board and that of the. private owner.

“By section 6 of “The Land Drainage Amendment Act, 1920,” the provisions of “The Fencing Act, 1908,” (requiring the occupiers of adjoining lands not divided by a sufficient fence to contribute in equal proportions to the erection of such a fence) shall apply as between a drainage board and the occupiers of lands adjoining any drain constructed, maintained, or controlled by thei board.

“I cannot find any power vested in a board to compel an adjoining landowner to fence a The other questions submitted were:—

Has a board power to insist upon the removal of cattle from a stopbank, and recover the cost of repair caused by cattle ? And, where a settler has cut through th® stop-bank and laid down a pipe, has the board power to make the settler remove the pipe, and remove the stop-bank, and failing h(s doing so to carry out the necessary work and recover thd cost thereof ?”

The opinion given was as follows: “By section 5 of the Land Drainage Amendment Act, 1920 1 , a drainage board is given the. same powers to make by-laws relating to drains and drainage works as are conferred on county councils by any Act. Fairly wide powers are given a county council by section 178 of the Counties Act, 1920. Clauce J of that section is as follows : ‘Generally, to prevent trespasses', nuisances, and obstructions to drainage works, and to make all such provisions as to the council may seem necessary or expedient for the protection and proper management of drainage works.’ “I think the board could form bylaws providing for the prevention of cattle wandering on stop-banks. "There is also the remedy provided by section 82 of the Land Drainage Act, 1908, which section is as follows: “ ‘Every person who wilfully and maliciously cuts, breaks; down, destroys, or damages any bank, drain, sewer, dam, mill, engine, building, sluice, or any of the works erected or made for the purposes of this Act is liable on indictment to imprisonment for any term not exceeding three years or to a fine not exceeding £500.’ “There is also the case of Snushall v. Kaikoura County, 1920, N.Z.L.R. 793, where the Court of Appeal of New Zealand held that .where a local authority had the control and management it was entitled to commence an action for the prevention of the interference with such' control and management. “I think that the board could recover the cost of repairing the stopbank in both instances.”