DRAINAGE BOARD NOT RESPONSIBLBE.
FOR FLOODED FARM AREA
RE-TRIAL ORDERED.
Banners in the Manawatu were interested in a case which was heard in the Supreme Court, l'almerslon .North, last year, in which a farmer, M. O. Xremain, of Kaiauga, proceeded against the Manawats Land Drainage Board, seeking compensation for the flooding of his property through the Board's drains overflowing, (says the M.D. Times). When the case was heard here the special jury disagreed, and in a re-hearing of the evidence in Wellington recently, the plaintiff, was awarded the verdict, and granted damages. This decision has now been upset by the Chief Justice (Sir lioberl SLout), aud a new trial ordered. ® The order for a new trial, which took the form of a reserved judgment —delivered at Wellington yesterday —was the result of an appeal by Mi'. Gray, K.C., and with him Mi'. Stewart (who appeared for the Board) for a non-suit, or alternatively a re-trial on the grounds of weight of evidence and excessive damages. The case against the Board was
based on the allegation that between April 17 and August 31, 1923, Tremain had suffered damage to his crops and interference to his farming operations through the Board’s failure to keep the drains sufficiently clean to remove the ordinary rainfall and floods in the district at that period of the year. NO ALLEGATION OF NEGLIGENCE.
In outlining his reasons for ordering a new trial, the Chief Justice said there was no averment of negligence in the claim, though it was apparent that negligence was implied by the plaintiff. Certainly, the Board was obliged under the Statute to'keep the drains clean and in order, but the Appeal Court had laid down that no action against the Board could succeed unless some negligence or improper performance of some prescribed statutory duty was proved. “The danger in this class of case,” continued His Honour “is that a jury may be inclined to consider only whether the drain was inefficient and what was the amount of damage sustained by the owner of the land. “It is c.lear that the Act does not provide for any guarantee that, the drains will carry off surplus water and will prevent ilie land from being flooded, not only in this district, but in other districts, notwith standing drains and cleansed drains. On low-lving land, such as this land was in the vicinity of large rivers or big streams, flooding is not unusual . It is said that in these drains three or four floods a year is apparently a normal thing, and the whole attention of the jury was directed to the fact and to the averment that these drains should have been cleansed in either March, April or May, and before June when they began to be cleansed.” ABNORMAL RATNFALL. It had been shown that the rainfall in the vicinity of the plaintiff’s property had been abnormal in the early months of .1923 and this would affect the drains. Could it tic said that the Board was guilty of negligence if it carried out the usual method of cleaning the drain which had been adopted on the advice of the Board’s experts, and carried out for many years without any voice of protest from the ratepayers? Even the plaintiff, who knew all the conditions, did not complain till August —after the. damage had been done. On account of the exceptional rainfall, and the fact that the drains were full of water, the postponement of (denning till June was hardly sufficient proof of negligence against the Board. DAMAGES CONSIDERED EXCESSIVE. In respect to the damages which has been awarded the plaintiff, His Honour contended they were excessive. Whereas Tremain claimed for damages to his crop of clover and cocksfoot, his land had been declared unsuitable for these grasses, while the plaintiff himself had cut some of his yield and left, it stacked and open to the ravages of the flood when he had ample time to gather it in. The land had been shown as liable to floods and neighbours had sworn to seeing it flooded for several years. Damages could only have been assessed in consideration of the loss of cocksfoot and clover, and this basis was not sufficient for the following reasons: —(1) That it was improper farming to put cocksfoot and id over on land subject to floods; (2), That both crops might: have been reaped and removed lielore the flood came. If the land was subject to floods, the Board could not he held responsible for the “scouring” of the land. His Honour concluded: —“I have not allowed the fact to influence me as to the backing-up of the waters from the flooding of the Manawatu River, hut base my judgment for a new trial really on two grounds: lirst, that in my opinion there is no such clear evidence of negligence as would have warranted the jury in finding the Board guilty of negligence, because it must he proved clearly that there was negligence. Second I am of opinion that the large amount of (himages given for this injury to the crops of clover and cocksfoot, considering the iciireuinstances ot the manner in which the clover and cocksfoot was dealt with and the place in which it was sown, was not such as should have been granted by the .jury. 1 shall therefore ordei a new trial.'’
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Manawatu Herald, Volume XLVII, Issue 2890, 30 May 1925, Page 3
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894DRAINAGE BOARD NOT RESPONSIBLBE. Manawatu Herald, Volume XLVII, Issue 2890, 30 May 1925, Page 3
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