PETER AITCHISON V. THE COUNTY COUNCIL.

Oamaru Mail, Volume IV, Issue 1319, 5 August 1880, Page 2

PETER AITCHISON V. THE COUNTY COUNCIL.

The case between Mr. Peter Aitchison and the Waitaki County Council, in which Mr. Aitchison appealed against the der cision gf the Oamaru Resident Magistrate, came on at the sitting in banco of the Supreme Court yesterday. The Times gives the following report of the case : Mr. R. Stout appeared for the appellant, and Mr. James Smith for the respondents. Mr. Stout, in addressing the Court, stated the nature of the case, the faots shown being— that there was a drain flowing through the property of the appellant, and that it overflowed his land, and that this drain was a natural watercourse. The question for decision was whether the Waitaki County Council were bound to make this natural watercourse sufficient to carry off flood-water. Mr. Stout contended that under sections 165 and 186 of •' The Public Works Act, 1876," the duty was cast upon the Waitaki Council to construct and repair all public drains, and that as the watercourse was a public drain, it was the duty of the respondents to make it sufficient to carry off all water. He also relied on sections 184 and 18?* of the Counties Act, and sections Iff] and 85 of the Public Works Act, and on the following cases White v. Hindley Local Bw.ar'l, 32 L.T., TT.S , 460 ; and (s<>rpi-ra-don of Bat.hur.sr v. M;«ophevson, 32 L. R. Appeal Cases, 256. The learned counsel also contrasted the provisions of the New South Wales statute No. 12, 1867, and XI. and XII. Victoria with the New Zealand statutes.

Mr. Smith, in replying to Mr. Stout, said that the y er y olearest authority for the position for which his learned friend contended, because of its absurd and oppressive charaoter. The position contended for by the other side was no less than this: that by virr.ue of certain sections of the Public Works Act there was thrown upon tha public bodies, tha County Councils, the duty of rendering serviceable, &3 public drains, all the natural watercourses within the limits of their jurisdictions which are naturally insufficient to carry all the storm-water, and so to render persons whose lar\d adjoined such watercourses protected fpoin injury. Surely the clearest possible language expressing'auph intention on the part of the Legislature should be found before so wide a conclusion was drawn, The cases cited, he submitted, did not touch the question, What was ruled in the authorities was that where an artificial work was suffered to get into such a state of disrepair that private parties suffered, then the public body was liable; the liability arising from the circumstance that the Legislatnre had remitted to publip bodies tfi construct artificial works, and uppn that power being exercised the common law threw upon the public body the duty of maintaining such works in guch a state of repairs and of constructing them so efficiently that no damage should be caused by them to private persons. Such cases stood upon distinct and intelligible ground, but here his learned friend sought to throw upon the County Council a responsibility which could only attach to them with regard to drains which they as a public body caused to be constructed. In such cases the oo\art would always adopt tljp irjore reasonable construction in preference to one which carried the consequences he had referred to, and would even strain the meaning of language if necessary for the purpose of escaping absurd and oppressive consequences. In this case, however, he submitted that there was no occasion for straining the language, but that by its natural construction nothing more was meant than that the making of drains a«4 their repair should be q, rqatter wide? the jurisdiction of the County Council, i After arguing tlie matter at some length, ! the learned counsel also contended that the respondents were entitled to succeed, on the ground that the preparation of a map showing all drains which had not yet been prepared was, under the Act, a con-dition-precedent to the matter upon which ! the appellant relief!; Mr. Stout replied. His Honor said : I will take time to consider the matter. I have no doubt that if the question were put to the Legis-, lature, they would say that they never in- j tended to put a burden of the kind upon the County Councils • but, unfortunately, i the Legislature have a way of saying what is not meant, and this may have been done in the present case. However, I shall take time, and look through the Act strictly before coming to a decision.— Judgment reserved. (by telegraph. ) » Dunedin, August 6., ; The appeal case, Aitchison v. Waitaki Gounty Council, has been dismissed with • costs,