A CLAIM FOR COMPENSATION.

Wairarapa Age, Volume XXX, Issue 8509, 10 August 1907, Page 3

A CLAIM FOR COMPENSATION.

G. HERON v. MASTERTON BOROUGH COUNCIL. JUDGMENT RESERVED. A sitting of the Compensation Court was held in the Masterton Courthouse, yesterday morning, to hear a case in which considerable interest was centred. George Heron claimed from the Masterton Borough Council the sum of £lO5 as compensation for damages to plaintiffs property in Church caused by the Council raising the footpath in that street by 12 inches. The Court comprised Mr W. P. James, S.M., (Chairman), Mr C. A, Tabateau (assessor for the Borough Council), and Mr W. B. Chennells (assessor for Mr Heron).

Mr P. L. Hoi lings appeared for the plaintiff, and Mr C. A. Pownall for the defendant Council. The statement of claim set out aa follows: and will be caused by reason of the footpath fronting the said land having been raised 12 inches above the level of the said land, thereby blocking water from escaping from the said land in its natural flow, and rendering the said land liable to be swamped at every fall of rain—£so. (2) Depreciation in the value of the sud land and premises, caused by damage to the general appearance of the property —£50. (3) Damage to fence of property by burying same twelve inches beneath the footpath, rendering same liable to be pushed over oi>one side, necessitating its removal and re-erection —£5.

At the commencement of the proceedings Mr Pownall said he appeared on the understanding that road maintenance was not a public work, and as such no compensation could be ■allowed for damage caused by maintenance work.

Mr Hollings, in opening the case, said that the plaintiff occupied property in Church Street on a lease from the Trust Lands Trust, with a •compensation clause for improvements. The lease had six years to run. The plaintiff had, therefore, not only an interest in the buildings, but also in the unexpired portion of the lease of the property. The •claim was made by Mr Heron and not by the Trust Lands Trustees. The claim was made under section 35 of the Public Works Act 1905, and was for land injuriously affected and not for land taken. Mr Heron built his house in 1902. Church Street was •then admittedly a public road, and counsel submitted, a permanently constructed road within the meaning of the Municipal Corporations Act | 1900, section 246. He would prove that the road had been constructed over thirty years ago and at the time plaintiff built his house there was already an asphalt footpath in existence. Mr Heron built his house and laid out his garden according to the level of the footpath as it was then constructed. The defendant j Council had raised the crown of the j road shortly afterwards, but no ex-1 ception was taken to that. In : January of the present year, the Council broke up the old footpath and put down a new one twelve inches ' higher than the old one. The effect | of this was to sink the house and gar--den twelve inches below the level of i the footpath. Counsel contended that the appearance of the house was thus ; •completely spoiled, and the selling value of the property was seriously ; 'depreciated. The fence had, in ad-, dition, been sunk, rendering it liable to be forced over and making it im- j operative that it must be taken down and re-built. He would like to make iit clear that the new footpath was a public work within the meaning of the Statute. Counsel read section 2 ; of the Public Works Act 1905 showing that the definition of a pub- j lie work was, inter alia, any road ; or street, and a road, he submitted, j meant a footpath under section 101 . ■of the same Act. Mr Hollings went | -on to say that section 205 of the ; Municipal Corporations Act 1900 pro- j vided that any person whose pro- J jperty was injuriously affected by any ! public work shall be entitled to com' pensation. The principle of how the •compensation should be assessed was laid down in the case of Fitzgerald v. The Kelburne Tramway Company. It really meant that the betterment .principle must be applied. The j Municipal Corporations Act 1876 did snot provide for any compensation | and it was through this that the case j -of Williams v. The Wellington Cor- j poration was lost by the plaintiff in , 1885. The Statute of 1886, however, j overruled this decision because a clause was inserted providing for compensation to be paid to any perosn who&e property was affected by "the shifting of a road. The Council .had, no doubt, the right to raise any footpath, but that right was subject to compensation, being paid to the persons whose property had been injuriously affected. He submitted that the old footpath had not been repaired,, but had been taken up and reconstructed. Therefore, a new work had been carried out and was the subject for compensation under the Public Works Act. He contended that the levels of the street had been permanently fixed some years ago, and these levels had now been overruled. The Council thus made themselves liable even under the Statute o? 1876.' He would show by the aid of a map prepared by the authority of the' Borough Council in 1885, under which the levels were fixed, that Church Street, near the plaintiff's property, had been raised Ift Sin. The Court then adjourned to make an inspection of the locality affected by the case. On resuming, Mr Hollings said that it had been agreed between Mr Pownall and himself not to call evidence as to the value of the property. The question of value would be left to the valuers. Thomas B. Michell, builder, of Masterton, said ' he knew the plaintiff's property before the footpath was raised. He estimated that the cost of raising the house now to the level of the present footpath would be £64 15s. This estimate did not include filling in the land in front of the house or removing the

fente or relaying the footpath leading up to the house. By Mr Pownall: The house at present was not within Bin of the level of the crown of the road. tepi£eorge Heron, plaintiff, said he -*built the house in 1902, when he .also laid the concrete footpath leading to "the house. In January last the footpath was raised by 12in. The previous footpath was an asphalt one, in good order and without a kerb. 'Witness was Mayor of the Borough 'for several years, and he •considered then that Church Street -was a permanently constructed road .and footpath. The road and footbath had been formed and metalled for over twenty years, and In built liis house in accordance with the levels of the footpath. His experience was that the raising of the footpath had raa& the property damp and would a big effect on its selling value. Frank Dupre said that for three years he lived *m Church Street next to the plaintiff. When witness lived there, Church Street was a formed and metalled roadBy Mr Pownall-: He had never noticed that the old footpath on his side -of the road was fewer than that on the othesr side. By the Magistrate: Th 3 edge of the footpath was very wet before it was raised, but it was still in that condition. If the Council made a proper culvert along the edge of the faotpath nosr, it should! improve the vsiae of the property facing it. By Mr Holllngs: The present state of affairs certainly depreciated the value of the affronting property. Alfred P. Rawson, surveyor, gave evidence to the effect that Church Street, near the plaintiff's property, had now been raised by Ift 3in on the levels appearing in an old map prepared by the Council. By Mr Pownall: It was the practice of builders to build houses up to the level of the crown of the road independent of the foopath. He did not know for what purpose the old iaap was prepared in 1885. According to the index to the map the intermediate level of the crown of the road was then 347.54 feet above sea level. Now the level was 346.32 feet above sea level. Richard Brown, Town Clerk, said that the map used in the evidence was prepared by Mr Drummond by authority of the Borough Council, and hung for many years in the Council Chambers as a public map. By Mr Pownall: The intermediate levels of the roads on the map show the actual levels of the crown of the road at that time. The old footpath in Church Street was only a temporary construction. A standard level for the Masterton Borough had never been prepared. By Mr Hollings: He] did not think Queen Street was a permanently constructed street. The old footpath in Cnurch Street was not permanently constructed. It was reserved for a footpath. Church Street had not been permanently formed and metalled until recently. By Mr Pownall: He did not think a footpath was permanently constructed until it was properly graded. This concluded the evidence for the plaintiff. Mr Pownall, for the defence, submitted that the footpath in question was not a construction within the meaning of the Public Works Act. If it were, every inch of gravel that had been put oh the footpath might be considered a public work. What compensation was al - lowed for was the construction of public works. The whole question in the case was whether the grading of the footpath was a construction within the meaning of the Public Works Act. He would prove that the old footpath had not been torn up, but was still there. What had been done was to fill up the old footpath with gravel, so as to grade i t to a fixed level. He submitted that a footpath that was not graded, that had no kerb, and was only tarred and sanded, was not a permanent construction. A footpath that was only

put down for awhile until a proper gradation was carried out, was purely temporary. Counsel relied on the word "permanent," and until a work •was permanent no compensation could be paid. Again, he relied very strongly on the merits of the case. In the first place it was invariably the custom for builders to erect houses according to the crown of the street. Footpaths could never be considered in building houses. The crown of the road was now lower than what it wa3 22 years ago according to the map produced, and the footpath on the i nth side of the street was one foot higher than that on Mr Heron's side until the present alterations were made. He thought that the Court would agree with the evidence that he would call, to the effect that Mr Heron had built his house according to the level of the footpath and not to the crown of the road. If the plaintiff built to the crown of the road he would have had no trouble now. It was rathe r unfortunate for the plaintiff, but it was a matter of public policy and a very serious matter for the defendant fcfcgn'Ml. It was not question of the amount of money to be paid, but the precedent that would be laid down would be a dangerous one if plaintiff's claim was entertained. Douglas Dobson, Borough Engineer, stated that it was under his instructions that the footpath on the south side of Church Street was graded. The work was undertaken to irake the footpaths on both sides the same level. The work of grading the south side had not been undertaken until recently owing to the lack oi funds. Before the footpath was properly constructed there was always water lying on it after heavy rain. Now the water could not get on to Mi Heron's property. Mr Heron's house was now two feet above the watertable. There was no standard map showing the levels of the Borough. Most of the roads in the Borough were still in an unfinished state. There were very few on a permanent grade. He would not regard an ungraded footpath, that had only been tarred and sanded, as permanent. The house had not been materially interfered with by the raising of the footpath. The levels shown on' the old map represented the crown pf the road. There was little difference

between level now and when the map was drawn up. The usual method in which the roads were made was to make the back of the footpath on the same level as the crown of the road. If this were not done, the footpath would be flooded in wet weather. There was no doubt that Mr Heron's section was the lowest in the street, and should have been raised before the house was built. Witness did mot think any damage had been done to the plaintiff's property by the raising of the footpath. By Mr Hallings: The fall in the road for two :chains past Mr Heron's was 4£ inches. The crown of the l'oad at this spot was 347.17 feet above sea level. It was not a fact &hat the crown of the road near Mr Heron's had been raised more than was intended. In 1903 the crown of the road had been raised by 6 inches after -iihe footpath on the opposite side had been raised. The footpath on Mr -Heron's side of the street was not considered finished at that time. Witness did not regard Queen Street as a permanently constructed street. Mr Pownall did not call any further evidence. After hearing short legal argument, the Court reserved its decision.