ALLEGED OBSTRUCTION OF A DRAIN.

Manawatu Herald, Volume L, Issue 3932, 18 April 1929, Page 2

ALLEGED OBSTRUCTION OF A DRAIN.

APPEAL AGAINST DRAINAGE BOARD UPHELD. MAGISTRATE’S DECISION. Reserved judgment lias been given by Mr J. L. Stout, S.M. in the appeal of E. S. Easton (Mr limes) against. an order served upon him by Die Moutoa Drainage Board (Mr M. D. Bergin) directing the. appellant io remove from the Main Drain a concrete bridge which, in the opinion of the Board was an obstrueton to the How of water and likely to cause damage to property in the district.

The S.M.’s judgment reads as follows : “This is an appeal against an order made by the respondent Board under the provisions of Section ,02 of the Land Drainage Act, 1908, as amended hy Section 7 of the Land Drainage l Amendment Act, 1913, Section 7. “The order calls upon the appellant to remove a concrete bridge lie lias creeled over one of the re-' spondont’s drains, the main outlet drain for the district. The evidence discloses- that parts of the structure are within the drain and 1 aim assuming they are an obstruction within the meaning of the section, although the question is not free from doubt for the provision as to removal from the banks of a drain to a distance not exceeding ten feet, etc., is hardly appropriate to a bridge or culvert. Before I I can confirm the order, however, 1 must be satisfied that the obstruction is likely to cause damage to property in the district#; “la my opinion such damage must be material arid not merely nominal, and T must therefore consider the evidence to ascertain whether such material dalmago is like1,- to result from the obstruction. In considering- the question it must be borne in mind that the appellant, is entitled "to reasonable access to his farm lands, and for this purpose is entitled to cross the Board’s drain at convenient places so long as no material damage is done by such crossing, and he would be entitled in my opinion to build either a bridge or.a culvert for this purpose. I think; this is clearly the right of a landowner and is supported by the provisions of Section 9 of the Act of 1913. Now iiUconstmeting culverts, one finds from observation that the practice is usually to curtail the waterway for a short distance, i.e., a culvert under a road, and in erecting bridges jt is often the practice, as has been admittedly done in bridges constructed over the drain, to erect central supports in the middle of the drain itself. The erection of this bridge has, to a certain extent, curtailed the waterway, the side supports and the few inches of tch stringers which project downwards below the under side of the bridge docking being within the drain. I do not. think, however, that the side supports are as harmful as a central support in midstream, where the evidence discloses the maximum velocity exists; that leaves the 4in. to bin. of the stringers as the only other obstruction below land level It is admitted that the velocity of the water in the drain is small, and that the drain only functions for twelve out of the twenty-four hours, owing to flowing into a tidal river, and in the circumstances the evidence does not satisfy me that the slight obstruction caused by the stringers is likely to cause material damage. In fact, the evidence of the experts and the authority quoted by Mr Edwards are to the effect that a slight constriction of a water-way for a few feet causes no appreciable diminution in Die flow. There is another aspect of the case, that I feel I should consider, and that is that the appellant was apparently allowed to finish his bridge without any objection or without the Board taking the trouble to satisfy themselves that it was not likely to cause an obstruction to their drain. In such circumstances the Court would hesitate to throw the burden of removing or raising the bridge upon the appellant. The Board’s servants knew the bridge was being erected and'the Board or some of its members had such ’knowledge prior to the bridge being finished but no inspection was made or objection taken until many months after its completion. “Having regard to all the circumstances of the case, as I am entitled to do under the Section, in considering ‘whether such order shall have effect,’ I have come to the conclusion that the appeal should be allowed upon the grounds that Die obstruction is hardly sufficient to cause material .damage, coupled with the fact of the Board’s laxity in not- inspecting the bridge and taking an objection during its erection.

“The appeal will be allowed, but in my opinion both parties are to a certain extent in the wrong. 1 make no order as to costs.”