RIPARIAN RIGHTS.

Manawatu Herald, Volume XLIII, Issue 2226, 13 January 1921, Page 3

RIPARIAN RIGHTS.

SOUTHLAND APPEAL DI.S-

MISSED.

BY PRIVY COUNCIL.

Judgment was delivered this week by -Viscount Cave in the case between Air Alexander Gerrard (appellant) and Messrs Martin L. Crowe and Michael Crowe (respondents), which came up for consideration recently before the Judicial Committee of the Privy Council (writes the Post’s London correspondent, under date 18th November).

Tjjis was an appeal from an order dated 17th April, 1918, of the Court of Appeal of New Zealand reversing the judgment dated the Kith June, 1917, of the Supreme Court of New Zealand in an action in which Ihe appellant was "plaintiff and the respondents were defendants. The appeal was heard before Viscount Cave,-Lord Moulton, and Lord .Phillimorc. Messrs T. J. C. Tomlin, K.C.., and F. 11. L. Errington appeared for the appellant, and Alessrs Mark L. llomer, K.C., and G. 11. Northeote- for the respondents. The appellant is the owner and occupier of certain lands in AYinton Hundred, Southland, situated on the eastern or left hank of the Oreti River. The respondents are the owners and occupiers of lands on the western or right bank of the river opposite the appellant’s lands, and part of the respondents’ land is intersected by a creek known as Ilillend Creek, which flows into the Oreti River. Before the year 1913, when the river was in Hood and rose above its banks, some of ihe Hood waters (lowed over the western bank at a point about half a mile above the junction of the Ilillend Creek with the river, and spread in a -south-westerly direction over the respondents’ land, following no definite course, and ultimately finding their way hack to the river at some point or points further south and below- the appellant's land. Towards the end of 1913 (he respondents erected on t heir land an earthen embankment about 90 chains in length and about Iwo feel in height, beginning at a point about half it mile from the western bank of the river and running in a .southerly direction to a point close to the* rivet; bank, their object being to prevent the Hood water from spreading over their land to the west.

The appellant brought an action against the respondents in 1917, and his honour Mr Justice Sim gave judgment for appellant, assessing damages at .610, and restraining, respondents from diverting the Hood waters. Respondents appealed from this judgment, and (lie appeal was allowed by the Court of Appeal. The judgment of the court was based mainly on the absence of any actual flood relief channel over the respondents’ lands. Viscount Cave, in delivering judgment, dealt with all the cases cited by appellant's counsel in support of the appeal, but found that in Ihe present instance there was no particular ciremnslance to justify a departure from the general principle that it was lawful for anyone to build a fence upon his own ground by the side of a river lo prevent damage to his ground by the overflow of the river. A special point put forward* on behalf of the appellant was that the. effect of the respondents’ embankment, which was not erected on the bank of the Oreti River, but stood back a. little distance on (lie respondents’ property and left some 14 acres of land unprotected, was to throw the flood waters on those 14 acres, and®accordingly that the respondents were liable for the damage caused by its c-scapo. In the opinion of their Lordships, it would he strange if a landowner, not being liable for protecting the whole of his land agiiinst Hoods, became liable by reason of the fact that he had set his embankment further back, and so had left a portion of his land unprotected. It was the river—the “common enemy" —which first Hooded the 14 acres, and then carried away the flood, and the injury to the plaintiff was not increased, buf probably diminished, by the fact that the 14 acres were left open and unembanked. There was, in fact, neither injuria nor damnum proved under this head. Their Lordships were of opinion that the appeal should he dismissed with costs, and His Majesty would be advised accordingly.