COFY.
Enclosure 2.
C.O.
389
42641
Mece
Jent et male? *treprave? Infected act
VTR
また
entwalo nci ywy cz
!
istricte virował dallir ett to
« Joe Flore did of ve cated
aona wdd mi?!)#
. VS #
Hon. Colonial Secretary,
17 DEC 041
I am of the following opinion with regard to
the three views set forth in the case stated by his Excellency :-
(1).
That in 1901 the Admiralty, on acquiring the
Nullah North of Queen's Road, took it subject to the conditions
then existing, and were bound when they diverted and reconstructed
it to provide for the passage of all débris &c., which could at
that time reasonably be expected to come down the Nullah. I accordingly consider that the Admiralty are not entitled to contribution from any upper riparian owner or other person in respect of débris &c., carried down from his land in the natural order of things, and apart from any act or neglect on his part. Only in case of a block or damage being directly caused by such act or neglect would the Admiralty be entitled to recover.
(2).
That the Military Authorities assert too
large a right in contending that the Admiralty must "allow water
to flow down to the sea with all its contents", if in the word
"contents" they mean to include, as it would appear they do,
débris which has got into the Nullah by reason of their own act
or neglect, e.g. the débris from the wall in the Murray Barracks
which collapsed in June 1903.
(3).
That the view of the Colonial Government
therefore is correct, subject to this further observation, that if
when the Admiralty diverted the Nullah (changing a practically
straight into a winding course), and lengthened it (thereby
presumably decreasing its fall), and covered it in, the new
outlet was inadequate for the purposes indicated in paragraph (1)
of this opinion; and if such inadequacy should occasion a block;
then I think the Admiralty would not be entitled to contribution
from other landowners, even though the obstructing material might
be found, wholly or partly, to be such as would not have been carried
Page 390
Page 391