CLEARING OF DRAINS.

Hauraki Plains Gazette, Volume XXXIX, Issue 5273, 11 May 1928, Page 1

CLEARING OF DRAINS.

WO IS LIABLE 'I ■OPINION OF COUNSEL. The following opinion by Mr T. F. •Martin, counsel to the N.Z. Counties: Assocation, regarding liability for the clearing of drains, will be of general interest. The opinion was given to the Manawatu County Council. The clerk stated the case as follows : 1 have to inform you that there are three classes of drains about which the council seeks an opinion : (1) A drain in an area under the jurisdiction of a drainage board ; (2) a drain partially in a drainage board area, i.e., a drain which continues on above the area ; (3) a drain, that i s absolutely outside a drainage board area. Most of the drains are artificial, but in one or two cases they are natural water-courses. The artificial water-cc|urses have been, constructed by the private landowners, and are, generally speaking, not being propel ly maintained by anyone. The position, briefly, is this,: In a number of places throughout the county ini past days private individuals have lent watercourses to drain their lands. Some of these drains have been, constructed conjointly and run for lofug distances. In others the land has been subdivided since the drains were made, and they now' run through several d'ffei ent properties. Seme of these drains cross the county roads through culverts, and in some cases they iun along the roadside, but owing to in sufficient maintenance they overflow in the wet seasom and flood the roads. Ratepayers have approached the council, asking that the drains: be maintained, as they are taking water from the roads, but the council, has refused to do this, taking up the attitude that it is not a. drainage board, and, further, that the water has been brought to the road by private drains. We would also like to know if> in. case the council once cleaned 'Oiut a portion of one of these drains running along-: side the road, there is any future liability to do so.

In reply, Mr Martin gave Ills opirir. ion as follows : — f “1. The council, is not responsible for the maintenance of drains or water-courses or, parts thereof situated within a drainage district (Heniy v. Piako County, 30, N.Z.L.R., 811)2. In those parts of a county in Which neither a drainage'board nor, a river board has- jurisdiction, a county council is by section 66 of the Land Drainage Act, 1908, required, to remove from all water-courses all obstruct tions, weeds, growths, and refuse calculated to impede the free flow of water in any such water-course within the said parts of the county. In section 2 the word ‘watercourse’ is defined as including all rivers, streams, am} channels through which water flows. This- definition would include artificial dirains made by landowners. There is excepted from section 66 the case of any water-course specially dealt with under section 64. 3. The saicl section 66 has been interpreted by the Supreme Court as. meaning' that it is the duty of the county Council. to exercise the powers given it'by section 7 of the Land Drainage Amendment Act, 1913, and sub-|sec~ tions (2) and 1 (3) of section 62, Land Drainage Act, 1908, o'f ordering the occupiers (or, if none, then) the own-i ers oh the banks-, of the watercourse to clear the same (see McKinley v. Whangarei County Council, 32, N.Z.L.R. 790). The Court held that the liability imposed on the council under s. 66 was not an absolute liability, but -that the duty imposed by that section was to be performed without negligence oin the part of the council. 4. In my opinion the Manawatu County Council’s liability in the matter of the drains, or parts of drains situate within the county is that set ou t in section 66, as interpreted by the Court. 5. The once clearing out of a portion of ope of the drains running alongside the road would not create any future liability in the council to do; so, though it would be prudent to record in the minutes that the counci did not accept Liability.”