EDDIE V. BOROUGH COUNCIL.

Wairarapa Age, Volume XXVIII, Issue 7953, 31 January 1906, Page 6

EDDIE V. BOROUGH COUNCIL.

CLAIM FOR DAMAGES. AN INTERESTING CASE. At the Master ton Magistrate's Court, yesterday, before Mr W. P. James, S.M., George G. Eddie, cabinet maker and picture-framer, claimed from the Masterton Borough Council the sum of £3O, being the amount of damage caused to plaintiff's property by a flood in Queen Street, on October 25th, 1905. Mr P. L. ' Hollingfi appeared for the plaintiff, and Mr 0. A. Pownail, instructed by Messrs Gawith and Logan, for the defendant. Mr Hollings, in opening the case, said that plaintiff waß a cabinet maker in Lower Queen Street. He had a large stock of pictures, frames, etc., which he alleged were damaged to the extent.of £3O iu October last by water flowing into liis shop.from Renal!, Chapel and Queen Streets. Plaintiff alleged that the defendant Council was guilty of negligence, firstly, for making the culverts too small; secondly, for failing to take reasonable precaution iu constructing culverts to carry water away in times of storm and flood; thirdly, by obstructing the passage of water throuch the culverts by inserting th 9 high pressure water mains at right angles through these culverts; aud, lastly, in the construction of tbe road, by failing to provide the necessary culverts to carry away storm water. Counsel pointed out that thia was a test case, there being two other parties who would be guided by tho result. An adjournment was then made to the scene of the flood, for the purDose of inspection, and on the Court resuming, Mr Holiiugs stated that Mr Pownail was prepared to admit that all the culverts in the streets in question, with the exception of those in Renall Strept, tvere pnt in by the Council; that tho Council constructed the roads in Chapel and- Renall Streets; that Queen Street was taken over from the Provincial Government, aud that the footpaths had been made by the Coancil. Counsel further stated that it was only left for him to prove that tbe Council were guilty of negligence, and he cited several cases to show that where the Council liaei built culverts they were bound to prevent them from becoming a nuisance. The culverts, be cou tended, had become a nuisance, and' thus the Counoil had beooue guilty of negligence, for where rates were levied for the upkeep there was a duty on thn Council and the burgeasea to keep the culverts in repair and efficient fcr their purpose. The question arose whether tbe culverts were a sufficient artificial channel for the oarrying away of the water in such a changeable climate, and he oontended that they were not.

G. G. Eddie, plaintiff, stated that on going into his shop on the morning of Ootober 25th he found that the water had forced its way in. The water was then on the footpath, and appeared to be retreatingj Marks on various articles showed that the water had risen to a Height of two and a-half inohes in the shop. The water was com ' ing from the direction of Renall Street. All his stock on the floor, consisting of mouldings, picture frames and mounts, was damaged, and he thought his estimate of the damage a very reasonable one. .By Mr Pownall: Plaintiff: stated that he had rented the shop from Mr Pragnell for seven years, and he had never noticed the water rise so high, and only on two ocoa Hioos had he known the water tocame over the footpath. The floor of the ehop was about four inches above the footpath. It bad always been his custom to leave his stock on the floor, but there was no reason, save a little inconvenience, why the stock should not be kept on the shelves. He estimated his loss of mouldings at £ls. These were utterly useless, and had to be thrown out. ' His loss in cardboard mounts was estimated at about £7, and these with his labour in re-framing and remounting the damaged pictures (£8), and loss of time both to himself and his assistant (£2),, made up his claim. Alexander Macgregor, a diaper carrying on business in the shop adjoining plaintiff's, in Qaeet) Street, remembered the flood on Ootober 26tb. 'lho water had risen to about four inohes in his shop, and was retreating in the morning when he came to business. It was coming from Renall Street and the corner at the Queen's Hotel was flooded. He remembered another flood of a similar nature in the same place about 13 months previously to the one in question. By Mr Pownall: He had been in business in his present premises about two years and seven months, and the water had frequently ri«en level with the floor of hie shop. The floor was about three and'a»half or four inohes above the footpath, and the position in that part of Queen Street was that the oooupants were always in dread of a flood after a continuous spell of.wet weather, ooming from the Sou th. John Wellington, who had been in the employ of the Borough Goun : cil for 11% years up to three years ago, stated that the culvert on the corner of Renall and Chapel Streets was put in by the Borough Council when he was in their employ. Whenever there bad been a storm the cul verts in Chapel Street became blocked with wood, weeds, eto.

By Mr Pownall: The culverts were sufficient to take the water away unless they were blocked in heavy flood time. A sharp bend In the stream under the cordial factory in Queen Street often dammed the water up and caused it to overflow in Chapel Street. The culvert in Kenall Street was always free and never wanted cleaning.

William Pragnell, a resident of Eenall Street, stated that he remembered the flood in question. The water was coming from the direction of Kenall Street, and on following it up, witness discovered that the culvert in Chapel Street was overflowing. Witness had lived in that neighbourhood for about eighteen years, and he had known Chapel Street to oe flooded every year, for days on some occasions. By Mr Pownall: He had to construct a culvert on his own property, or else be would have been

flooded out. Although ho had'been living in the locality for eighteen years ho did not know when he built the shops in question—about eight years ago—that they were liable to be flooded.

Samuel Kingdou gave similar evidence to the last witness. He remembered the flood on October 25th. The water was coming from Queen Street and Renall Street. He did not think it the proper thing for tbe Council to build the water main across the culvert in Renal! Street.

By Mr Pownail; Everybody living id the locality ought to know that Mr Pragnell's shoos in Queen Street were liable to be flooded. Hubert Sladdeu, civil engineer, stated that he had inspected the locality and drawn a plan of it—the plan produced in Court, When a culvert was being built over a creek, allowance should be made for a fairly high flood. By Mr Logan; The culverts were built to allow a flow of about three or four times tho normal flow, but they should have been built to allow a flow nearly twenty times greater than the normal flow to provide for any sudden aud large flood. Tfie Benall Creek was large enough to carry flood water, but in time of flood the water only overflowed wheu it camo to the culvert, showing that the culvert was not large enough. Mr Pownail, for the defence, thought that the case was one for a non suit. Ho proposed to move iu that direction. Tbe facts put before the Court wore that tho culverts were constructed about 22 years ago, dnd that since that time the flow of water from the various sources Ijad increased. It was incumbent on the plaintiff to prove not only that the culverts were not sufficient to carry away the water at tho present time, but that they were insufficient at the tim* the culverts were erected. Assuming that the culverts had become insufficient at some later date, and the Council had neglected to repair them, he submitted that it was a mere nonfeasance, and, therefore, the Council was not liable. He, also, submitted that there was contributory negligence on the part of plaintiff and the witness Pragnell, for the former admitted that when he opened business in the shop it was liable to be flooded. Further there was contributory negligence on the part of the plaintiff in leaving what was described aa delicate goods on the floor. To bring out more forcibly the latter contention, counsel sited the case of Sargood Son and Ewen v. the Corporation of Dunedin, where it was found that there was contributory negligence on tho part of plaintiffs for.failing to ereot the necessary valves in their cellar, which was flooded.

Joseph G. Boddingtou stated that he had kept a gauge of the rainfall for the past two years. The raiufali on October 25th was 2.49 inohes for less than 24 hours. The average rainfall per month for the past two years was 4 inohes, and the rainfall on Ootober 25th was abnormal. Ootober was usually a dry month, and one in which rain was mostly wanted. By Mr Hollings: He had been in the district for 26% years, and the largest flood he remembered was that in 1881. The portion of the town in question was not affeoted at that time.

John King, oivil engineer and surveyor, and formerly Borough and County Engineer, stated that at the time the culverts were put' in Chapel and Renall Streets they were sufficient to carry away all the water. He left Mastertou about fifteen years ago, and on returning about two years ago he discovered that Chapel Street was frequently flooded. The culverts at present would carry about six, times tneir normal flow. He thought that the fact of the mains being built across the culvert would slightly impede the flow. Joseph Alfred Renall, Mayor of Masterton, deposed that in his opinion the culverts when they were erected were quite sufficient for the flow of water then in the creek. He did not think that the mains through the culvert impeded the flow of water in the culvert.

Douglas Dobson, Borough Engineer,- stated that the culverts oould only become blocfeed / if any debris were washed down. The floor of plaintiff's shop was as low as within a quarter of an inch of the loweßt part of the crown of the road and about six inohes lower than the highest part of the oro.wn of the road. Witness had seen heavier rain in Masterton than on the date in question, but he had never seen more water in the creek.

James Elliott, a resident of Colombo Road, near the Makora Creek for ten years, stated that he remembered the flood in ques tion. He had never seen so much water in the stream sinoe ten years ago. In his opinion there is more water in the creek now than some years ago.

Thomas George Mason stated that the Makora Creek rose 2ft 6ia on October 25th. It was the biggest flood be had seen in that creek.

William Henry Buica and George Henry Perry also evidence, after which further bearing of the case was postponed until te-day.