FOOTPATHS' CASE

Pukekohe & Waiuku Times, Volume 9, Issue 545, 2 July 1920, Page 2

FOOTPATHS' CASE

VERDICT FOR DEFENDANT. I The Pukekohe Borough Council claimed from James Kennelly, farmer, 1 of Pukekohe, £l4 f.s, being half cost of certain kerbing and channelling, and other work done by the plaintills .is the local authority on the frontage of the defendant's prooerty as follow?:--To half cost of kerbing and channelling 5 chains 40 feet at £5 per chain, £l4; and to half cost of one crossing, ss. Total £l4 ss. The council also proceeded to recover from George Blake, blacksmith, Pukekohe, for half cost cf kerbing and channelling 0 chains of footpath in front of his property at r.5 ppr chain and half cost of one culvert crossing, ss. Total £ls ss. Mr. vV. P. Kndean appeared for the Borough Council, and Dr. Fred Fitchett for Mr. Kennelly, and Mr. J. G. Haddow for Mr. Blake.

The cases were heard conjointly. J)r. Fitchett raised a preliminary objection with regard to the plaint note, which he claimed was bail, and not complying with the provisions of the Act. The grounds of the objection was that the plaint stated that "the Mayor, councillors, and burgesses of Pukekohe, plaintiffs." It did not say of what. He quoted an extract from five Gazette Law reports, page 293, and went on to say that if they were treated as residents there were no plaintiffs. If they were treated as plaintiffs there were iio residents. According to "the plaint note as set out there were either no plaintiffs or no residents. Mr. Haddow, who appeared for Mr. Blake, quoted the case, Friedlander v. Miller, 11 Gazette Law Reports, page Jss4, and contended that the Magistrate had no power to amend.

Dr. Fitchett said the note was bad

The Magistrate did not think it was bad. There was no one els*. as Mayor, councillors, and ourgesses of Pukekohe. Mr. Haddow: Take for instance the

Waitemata County Council, whose ail dress was not Waitemata, but Auck land. The Magistrate: There are not two Waitemata County Councils. The Magistrate reserved his decision on the objection raised that the plaint note was alleged to be defective, and the evidence was proceeded with. Sidney John Clews, foreman of the Pukekohc Borough Council, said he supervised the work done in the formation of the West Street footpath. Mr. Blake had two allotments separated by Rev. Nixon's residence. He thought Mr. Kennelly's property frontage was all in one piece. The council constructed concrete kerb and channelling, the half cost,btfing £ls. Mr. Blake had a wooden oilvert, so the claim for half cost of the concrete culvert was abandoned. In respect of Mr. Kennelly's frontage, the council claimed £l4 ss, as set out ir. the statement of claim. Witness said at the time the work was done the condition of West Street was that there was a footpath on both sides. On the left-hand side, Blake's side, the path was in fairly good condition. Metal screenings had been placed on it some time before, and had been well worn in. The grades of the path were fairly decent. They had oeen made. A filling near the town had sunken considerably, and before any permanent work could be done the filling had to be risen. The grades were not suitable for permanent Keru and channel work, and consequently he cut down the path in one place and raised it in another, and then constructed the kerb and channel. The old footpath was 10ft —it was now 15ft wide. The line of the footpath was straight when previous work was done, but it became washed out, water-worn, and silted up at *he lower portion. One portion of Blake's path was built up. At the part furthest from the town it was in fairly good order. The place haci been cut down to form some sort of level, and graded by the former Townfßoard, and some blue metal screenings deposited thereon. The screenings were about 411 Aide. The path itself, after the cattle had cut it away, was oniy about; Bl't 6in wide. There was no pretence kerbing and channelling. It was a pood country road footpath, but nothing of a "permanent nature. The road in front of the section was fairly narrow, and had -Since been widened and metalled "for'half a mile or so. The kerbing work had been done about 19 months ago. The Court then adjourned to enable the Magistrate and parties to inspect the locality. Upon resuming Mr. Endean read section 167 of the Municipal Coi porations Act, wherein authority was given the local body power to do the work. He added that the council had put in the kerbing and channelling, necessary in modern footpath construction, and as the council had constructed and put in something, he contended the council was entitled to half cost. Mr. Haddow, at the request of the Magistrate, read the Court of Appeal's decision by Mr. Justice Cooper, in the appeal case, Webster v. Pukekohe Borough Council, and also quoted other authorities bearing on t. similar subject.

Dr. Fitchett contended the plaintiff's case must fail. On the face of the whole question he had been ('riven to the Rating Act, section 562, wherein it stated that the basis for action for the recovery of a rate was a demand. In this case it had not been proved that a demand was made. He quoted an extract from 6, Law .Reports, page 718, the case of McKenzie v. Gisborne Harbour Board, in connexion with a demand for v, rate. In the case under consideration the council had made a demand in October, 1917, nearly three years ago, but thi law provided rates were onh recoverable within two years from date of such demand. Then, again, the council's case must fail. He held that th-? work was maintenance and not construction. He contended that the reason of widening the footpath was to narrow the roadway, and rhus reduce the cost of maintenance of the road. He maintained that a footpath 10ft wide was ampte for a district like Pukekohe. Mr. Haddow also claimed that the case was a clear one of maintenance and not construction. He referred to the time of the old I'ukekohu Road Board, \vhei> there was a footpath adequate for the time. The Magistrate said he would decide the case on the facts. He said he went into a line of cases when he had the matter of the Prospect Terrace footpath before him, and found that the present case was altogether in a totally different position. The

two paths in the centre of the town carried 10,000 times more people than the path in Prospect Terrace. The footpath had been graded and lowered, and maintained by scoria being placed thereon. The footpath had some actual construction, but he held this came under the heading of maintenance. They had a good graded path, and the council had added kerbing and channelling. He did not think it was construction, but maintenance. He therefore gave judgment for the defendant with costs amounting to 3:5 IDs Gd.