CATES ON ROADS.

Pukekohe & Waiuku Times, Volume 5, Issue 174, 16 May 1916, Page 1

CATES ON ROADS.

Action Against Franklin County Council.

The action concerning a gate on a road at Kobe Kohe alleged to be a public inconvenience, and which Messrs William and John Irwin Douglas unsuccestfully petitioned the Franklin County Council to tave removeJ, waa heard in the Waiuku Magistrate's Court on Friday, betore Mr F V Frazer, S.M., Messrs W and J 1 Douglas being the plaintiffs and the Franklin County Council the defendants Mr H H Ostler represented the plaintiffs and Mr A Hanna appeared for the Council In submitting his case, Mr Ostler said that the road was laid off at the request of the residents 25 or 26 years ago and had sicce become a public road. He handed into Court a pi in showing that the distance from the gate to the Kohe Kohe beach was 74 chains. Through the district developing he maintained that the gate had become a public inconvenience. The land on one Bide of both sides of the gate, extending for 501) chains, was owned and occupied by Mr Kenall. He expressed the view tbat had Mr Renall not been a member of the Franklin County Council the request contained in the petition would have been acceded to. When the petition was before the authority Mr Kenall spoke and voted on the motion referring thereto and tha petition was refused. He (Counsel) asked the Magistrate to note that at tha first adjournment of the casa allowed by Mr Page, S.M., he had asked for cos's. It appeared to him that the adjournment was sought on that occasion with a view of having a counter petition taken round the district, the opposition being in the method of a political campaign to defeat the petitioners in their request Mr Hanna objected to Mr Ostler's statement, but His Worship took it that the meaning Mr Ostler wished to convey was that the Council bad not acted judiciously Proceeding, Mr Ostler claimed that Mr Kenall could not deprive the settlers of their rights by retaining the gate in order to avoid having to fence his property. ihe reason that prompted the Council not to issue instructions fcr the gate's removal waa the hardship Mr Kenall would be put to m fencing his property. That, he contended, was a wrong view for the Council to take, and they instead should have considered whether the gate was a public inconvencience to the settlers. Mr Ostler handed in a tally of the traffic that passed over the road between December and January, which, he said, showed that it was lairly consistent. Mr Ostler explained that Mr William Douglas was unable to attend the Court that day owing to the unfit state of the roads

After perusing, at Mr Ostler's request, the petition which had been forwarded to the Council, Mr Alan F Day, County Clerk, admitted that five of the signatories were ratepayers In conclusion, Mr Ostler said that the gate was not erected by Mr Kenall, but. by an earlier owner, atlbough Mr Kenall had been in possession of the property for nice years.

EVIDENCE FOK I'LAINIIFFS John Irwin Douglas, farmer, of Kohe Kobe, deposed that the distance from where he lived to the gate was a quarter of a mile. Hia father had lived in the district tor 48 years, and witness was born there in 1886. The road had been used as a public thoroughfare for 25 years. With the development ot the district the traffic on the road had increased, the Awhitu residents in particular biiing regular users, while frequently stock was driven on it going both to and from the Manukau Heads, l'he road was oi considerable importance to the 500 settlers in Awhitu, and it wuuld be of greater value to them if it was formed. Mr Kenall had threatened him lor dragging timber on the ruad, complaining that it was ijot an easy matter to keep the gateway in repair when timber was dragged over the road

The Magietrate informed witness that Mr Kenall had no power to issue threats in regard to the road

Mr Haona here raised the point that the Council was not responsible for Mr Renall's actions

Witness, continuing, eaid there was an inducement for Waipipi and Kobe liohe residents to use the road because it was their easiest approach to the coast. (Jaltle passed over the road irregularly, sometimes onca a week for a

period, and then not for months. Although the property on both sides of the road was infested with rabbits, constituting a very great nuisance, they could not lay poison because of the danger to Mr Kenall's cattle, but if the property was fenced that work could be proceeded with. All those who signed the petition were residents of one of either of the districts of Kohe Kohe, Awhitu and Waipipi. They would all receive a benefit by the removal of the gate

By Mr Hanna: The beach would only be suitable for driving cattle during six hours of the day when the tide was either at low or half. He estimated that 100 cattle passed over the road via the beach in 12 months. With regard to the road, be was of ttic cpiuion that oulv two chains would be difficult ot upkeep. No obj.ction had previously been made to the gate. It was not a personal matter. What they required was the use of the load. To form a narrow road, all that was required, would only entail an expenditure of btt*cen £4O and £SO, and two miles, would cost approximately £l2O. He owned the property on one side of either side of the gate. If Mr Kenall was compelled to fence fence his property it would mean that his (Mr Kenall's) water would be cut off, and consequently he would have to pump it to his property. Ihe condition of the "low road," leading to the lighthouse, was good as far as Mr Kenall's property, but thereon it was in such a state tbat people avoided using it. Stttlers used the beach for driving cattle becausa it was naturally suitable as against the hilly country that surrounded it. The residents of Kohe Kohe had no option but to uss tha road when approaching the beach. A wild bull running on Mr Renall's property was both dangerous and a menace

Mr John Irwin Dickie stated that he was a farmer, his properties bting at Kohe Kihe and at the lighthouse. The easiest route between the to farms was the one he used, via tha Kohe Kohe beach road. He had never experienced any great difficulty when driving cattle on the road, but he considered it would be more convenient if it was fenced.

By tbe Magistrate: Several other Awhitu residents used tte road when driving cattle. About 20 times in a year he used it, while the othera only usid it onte a year. In addition, picnickers, as alao settlers riding to sales, traversed it. Manukau Leads and Awhitu people used the road because the beach was clean

By Mr Ostler: For people living near the lighthouse going to Waiuku the road was the easiest and quickest. Assuming tha road wa3 formed, he considered more people would use it Hartley Ashworth stated that, being a farmer residing at Kohe Kohe, he was cunversant with the road in question, and had noticed that despite the lncjnvenience of the gate thereon was to farmers driving cattle and to picnicktr?, they continued to use the road. Mere would use it if the gate was removed. The road had been in such a pitiable condition that season, however, tbat several people rel'UEed to travel cn it. 'lhrough the track being shifting sand it made it difficult of passage

Uy Mr Hanca: lie had not been on the road lor a year. It would be UEwise to lorni the road if the gate was to remaiu and the property was left unfencd because catile could stray on to the road and spoil it

Wm Arrowsmith Dickie, fanner, of Waipipi, supported the evidence giveD by Mr Douglas. He bad driven cattle along the road and considered that it was a great benefit to the residents. It coulu he formed lor 15s per chain. Just previous to the last Council election Mr Kenall promised the ratepayers of Waipipi that if they submitted a pe.ition to the Council for the road to be opened he (Cr Kenali) would see that the request was acceded to. It indirectly might have been a result of tv.r KenaH's non-compliance therewith that the petition was drawn up Astley Uillott deposed that he «as a farmer residing at Kohe Kohe He vsas a signatory to the petition because he wanted to see the road opened. He confirmed iVir Dougal's evidence ar.d stated further that a rider on horseback would experience difficulty tryirg to flhut the gate on a windy day. He had resided in the district for 55 years. Mr Kenall had accused him one 3 of going to "set him (Mr Kenall) up" and threatened "to danim well set him up" instead. Cr Kenall further toll witness that

he would make him cut the wipes across his road and erect a gate By Mr Hanna: He admitted having fenced the roads through bis property for his own private use, but contended that he had done the Council a "guod turn," because the roads would have otherwise been covered with blackberries

Arhibald Douglas, farmer, of Awhitu, said he was well acquainted with the road. He bad used it that morning. It was a much cleaner and shorter road than the otter route to Waiuku. Of the settlers residing in his locality the road was more convenient to those residing near the beach. Despite the fact that the Waiuku Cap roa ', adjoining the beacb, was of sandy formation the Council had put a road through it By Mr Hanna: The previous Sunday was the first occasion for twelve months that te bad used the road.

By the Magistiale: Mr Kenall's cattfe were always on tha road William Claude Motion, farmer, of Otaua, stated tbat he had teen a member of the County Council tinea its mceptior, and until recently was the chairman. When the petition was presented to the Council in August last he was absent through illness. To his knowledge the Council bad acceded to several petitions far the removal of gates, and he considered in respect to the present petition that the wishes of the people would have been considered if a councillor had not been involved. Only in the case of the road being fenced would it be advisable to form tbe ioad, as otherwise Mr Kenall's cattle would injure it. He was instrumental in getting the Waiuku Gap road, which ran through sand of a worse nature than the Beacb road, opened. The Council at that time subsidised an amount of £27 donated by settlers

By Mr Hanna: He considered that he was correct in the statement that it was only because a councillor was involved that the request for the removal of the gate was refused. All the councillor were not acquainted with the gate or road. When the minutes were confirmed he said tbat if it had been a private road it would have gone through. The gate was not inconvenient, but if the road was formed it would be particularly so to a person driving stock single handed. That difficulty however, could be avoided if an improved gate was erected in {lace thsreot. Had the road been in Jhis riding he would have given the petition careful consideration end would have endeavoured to expend money on the road. He understood tbat a number of the s.tikrs were prepared to assist in forming the road, and that the Council had knowledge of such, The Ueach road was a shorter route to Waiuku than the Gap road THE DEFENCE Opening his case, Mr Hanna oaid that the Council had only been in power three years. They had authority to cnct gates. He would submit evidence which would prove tbat the Council did not authorise the counter petition Mr Ostlor: You wanted the adjournment to got the counter petition out.

Mr Hanna denied Mr Usller't, statement aud stated that what he required at tho time was a ruling as to whether the petition was legal or not. The gate had been in existence 2o years. It abutted on complainant's property, consequently the order would have to be given to him. The question of Eenall's gate accordingly fell to the ground. Lie contended that the petition did not comply with Section I'2'J of tUe " Public Works Act." Ihe gato had only been referred to in the petition as being an obstruction only and tho signatories ouly preferred to be residents, not ratepayers. He took it that had it not been for the fact that Mr Kenall was concerned in the case it would have fallen through. He submitted that it c-uld be believed thai the council were influenced by the fact that Mr Kennali was a councillor. Mr Renall paid a greater contribution of rates than Mr Douglas. The gate had been in existence for 25 years without comment. The council had power to authorise the erection of a rabbit proof gate across the road.

Joseph Flanagan deposed that he had been a member of the Franklin County Council since its formation and chairman since November 1914. The question re the gate was first submitted to the Council by petition which asked that the road be formed. He and the Engineer were deputed to repoit on the matter. They did so and the Council unanimously decided to adopt their report. Mr Renall did not influence them in the matter. He only instructed them with reference to the road. He contended that the traffic on the road did not warrant the statement that the gato was a public inconvenience. The council were iniluenced in respect to the decision arrived at by the fact that there were huudreds of similar gates eltewhere which had been allowed to remain.

By Mr Ostler: He inspected the road in company with the county engineer on the 4th October. Mr Douglas was not notified of the visit becauso Mr Renall, who was interested, was abked not to interfere. Mr Douglas, however, caino out to thom after the inspection had been made. The grade was not good. He was not surprised to hear that the engineer and Mr Kenall inspected the road together. Mr Eenall met witness and the engineer after the inspection and rode back to Pukekolie with them. When the petition was before the council Mr Renall said that the gate had been on the road for a quarter of a century, was of little benefit to "picnickers ' and that there was not one signature of a Kohe Kohe resident on the petition. Mr Eenall was the only member of the council, on that occasion, who threw " light" on the subject. Witness was not guided by the statements made by Mr Kenall but from the inspection he (witness) made. Many miles of road in the riding would require repairing before the beach road could be touched The procedure was to attend to the main roads in preference toby-roads. By Mr Hanna: No action had been taken by him in respect to the counter petition. Mr Hanna, at this stage, intimated his intention to hand to the Magistrate the counter-petition that had been signed in favour of the gate being retained, but Mr Ostler raised the point that it was irrelevant. The Magistrate, however,- eaid he would accept it, but he would have to decide as to whether he would give it any consideration. James Frederick McArthur, engineer to the Franklin County Council, said he remembered the petition being submitted to the council. A decision was arrived at that he (witness) and the chairman should inspect the road and report to the council and he submitted in a report to the council an estimate for forming the road. The revenue from the Awhitu riding would be about £BOO. He was on the road on two or three occasions and never saw much traffic on it. He inspected the road in company with Cr Renall two days before his (witness) visit with the chairman. It was not a special trip as he had been to the coast and was staying with Mr Renall and he (Mr Renall) showed him over the road. He was not aware that the chairman had asked Mr Renall to " keep out of it." He reported that it would entail an expenditure of £2OO to form the road. Nothing Mr Renall had said or done had influenced him in preparing his report. By the Magistrate: He considered the gate was inconvenient tor driving cattle bat not for horsemen. The Council could not, on the present revenue, consider forming the road.

By Mr Ostler: His estimate was for a 12 to 11 foot road. A practicable vehicle road would cost less Mr Octavius Ridgley, farmer of Waipipi, stated that he lived about nine or ten miles away from the gate with which he was well acquainted. He had resided in the district for 50 years. He considered the gate was a great convenience to picnic parties and prevented the trouble that would arise from horses breaking away By Mr Ostler: He had objected to a gate on Mr Jones' property Mr John Muir, farmer, of Aka Aka, stated that his father sold the property to Mr Kenall. He knew the road and the gate and had used

it often. He had never found it an inconvenience. The Waiuku Gap road he considered was a better road to get cattle from Waiuku to Awhitu and vice versa, and was about the same distance es the Beach road. The gate was a convenience inasmuch as that cattle could be counted at the gate By the Magistrate: He would guarantee to take a mob of cattle over the road without a dog By Mr Ostler: He used tbe road for the last occasion about ten yearß ago and was of the opinion that tbe traffic on it had not changed much since Mr Hichard Higginson said he was a councillor and resided at Aka Aka. He remembered the petition before the Council. Mr Renall explained tbe position of tne road, and tbe chairman and engineer were appointed to ioepect it and report. In company with Mr Motion an inspection was made of the road. He could not sie that the gate was an inconvenienc?. The hill did not show any signs of traffic. By Mr Ostler: He went over the road to get an unbiassed opinion. He inspected it a second time, and saw that if Mr Kenall had to fence his propsrty that he would have to have his water cut off

Joseph Alfred Kenall, farmer, of Kobe Kohe, said that he owned 4000 acres at Kobe Kohe. He sold some property abutting the gate to Mr Douglas. The gate was there when he purchased the property, and he did not think it belonged to him. He considered tbe Council owned it. 'There was very little traffic on the toad. The present was the first request made for the removal of the gate. Mr John Dickie bad said a few days previously that he waß in favour of retaining tbe gate. He considered tbe engineer's estimate for forming the road was too little, aa concrete would have to be used tor tbe bank

By Mr Ostler: He did not quite undertsand that he was to "keep out of it." He showed the engineer over the pegs because he had never been there before. They did not discuss the probable cost, but he might have told tbe engineer that there was very little traffic on the road. He approached the Magistrate before tbe case and mentioned it only jokingly. He would not deny that he said to the Magistrate that he had 150 signatures on the counter petition The Magistrate stated that Mr Kenall had approached bim but he treated it as a joke Mr Kenall added that he did threaten people fur using the road, as he was only to pleased to see them go through He denied that he said in Council that none of tbe petitioners lived at Kohe Kohe. What he did say was that there were only five acd the bulk was from Waipipi By Mr Ostler: He did not tell Mr AstL'y Elliott that if he did not sign the counter petition he would have his road opened. What he did say was that if fie Court turned the Council down the Council would have to ask everyone to remove their gates. Mr Hanna's clerk assisted him to draw up the counter petition. Every ratepayer had the details explained to bim before he signed it. He agreed that certain money should be spent on the road, and, further, he intended that the track should be kept in repair Mr Frederick Alexander Halcomb, farmer, of Kohe Kohe, stated that during a period of three weeks, when he was hauling timber on the road, he never saw one person pass over it, and later, when working tor two weeks lor Mr Kenall, be also did not notice anyone on it

By Mr Ostler: He waß Mr Kenall's son-in-law

Jame3 McEwan gave corroborative evidence

At this stage Mr Hanna suggested that the Magistrate should view the gate, but Mr Ostler objected and urged that a finality should be reached JUDGMENT POSTPONED The Magistrate intimated that he would have been pleased to have inspected the gate, but he was afraid that time would not allow. He had made special trip that day with a view of hearing the case. There were two or three conflicting matters which he would like time to deliberate on. Continuing, he said that Mr Renall's actions might have affected "things," with the reßUlt that annoyance had arisen. His WorEhip proceeded to say that

he could order the removal of tbe gate, but could not order tbe Council to form tbe road. The chairman of the Council had stated that the Council Mas not in a position to form the road, and the engineer bad stated the estimated cost at£ 200, and he had no reason to disbelieve him, consequently it would not be formed for a considerable time. Evidence had been given to show that the picnickers were inconvenienced by the wide expanse of paddock, but the gate kept the horses from running away. However, the picnickers could r.ot be taken into consideration until the road was formed.

Mr Ostl.-r thereupon interjected and said he would like an opportunity of addressing the Magistrate before he gave a final decision

His Worship consented to fix a date suitable for both Counsel when legal arguments would be heard

Proceeding, tbe Magistrate said it was unfortunate that Mr Renall had participated in the discusaicn at the Council, but as far as the chairman and engineer were concerned there was nothing in their evidence to show that they had been unduly influenced. Possibly it never occurred to tbe chairman and Mr Renall that (he latter should have refrained from discussing the question

The proceadingß then closed