An Important Decision.

Alexandra Herald and Central Otago Gazette, Issue 415, 28 April 1904, Page 5

An Important Decision.

In the Warden's* Court, Alexandra, as the 18th insfcr Mr Warden Bur* gess delivered viously-heard case; jof flfe 'jfippeka Gold Dredging Company v. the-Gblden Beach Dredging Company and others. After detailing the rjardculars- of the action, hw Wojrahip proceeded ae follows: — ■ -■■ «a I "'■-. ■' "» .-:

"The defendmtw aßege in• their statement of claim that the dafendant's have trespassed upon the special dredging of Wo plaintiff, and hare deposited tailings from the dredge thereon, and have so worked their said dredge as to deposit tailings on tha plaintiffs claim, and to till np'with tiit a certain channel thereon, and to alter the course of the said' channel, and to damage 1 the same, and to seriously injure 'the said claim, and prevent' the plaintiff company from working the said claim, .andthat they' Still continue to deposit" tailings on the said claun. For these acts -they" claim _*£6oo as damages and pray* for an injunction to restrain defendants from depositing tailings or otherwise injuring or interfering with their workings. The defendants set up a counter claim for damages u> the extent of £7sU,.doue by the plaintiffs to their claim by encroaching upon it and dredging away portion thereof. At the time the easement was granted, the license for the land known as the Alexandra Eureka claim was held by llessrs Steel, Leijon, and- Magnus, and the license for the. land -known, as the Golden Beach claim was held by the Golden Beach Hyojauiic. Elevating and dredging Company, Ltd. On July 22bd, Messrs Steel. Leijeo Sod Magnus assigned all their interest in License 3i3a to the .Alexandra Eureka Dredging Company, Ltd. On 27th October 1902, tjtxe .Golden. Beach Company went intoHquidation, Mr R'Trythalf being appointed liquidator. On-April Ist 1903. the" property ws* mortgaged to Josiah'P Tffipp, ond according to .the evidence of Mr Trythall the interest of the company in liquidation was transferred to the New ©olden Beach Hydraulic.' Elevating and Dredging Company, Ltd. By section 24* of the C?r>p2=!»«» "Act 1903, : cc action-ctn be comnEiroedigainst a comppcjin liqvlia-" tion.er'jepfc wi*b the.lease »f ths Suprern* Court. This Att came4tbto*operstiot» on gmeabet 23re\ 1903. 'lhese prooeetJwgs were commenced on Nor. 28th 1903, and through ignorance, doubtless, of the change In the law the leave of the Supreme Court If* u»t beMobtainidi nor hasitafaoek«f»

obtained. It appears to mo under these circumstances, unsatisfactory aa such a course seems that I hare no alternative but to dismiss from those proceedings all action against the Golden Beach Company, in liquidation It is contended by Mr Macgregor, plaintiffs counsel, that the company in liquidation being struck out, necessarily involves the; dismissal of the counterclaim, which is admitted, and which the evidence shows can only apply to and affect this company. The.company not being before the court the counter claim is of no avail. He bases bis argument, on the contention that under the Mining Act 1898 the defendants have a right only to a set-off and not to a counter claim. The words of Section 2TO of the 1 Mining. Act, however, clearly intends to establish a counter claim. The off ai-j» counhr i tai'y*i"-ahd the whole tenor of iub.sections 20, 21, and 22 of Section. 288, aid also the form prescribed,; to my mind dearly indicate that it.is a counterman*and not merely a" Setoff Ifchat '"it 6 intended the dourt shall deal with. Notwithstanding this, lam of opinion that the counter-claim cannot, with respect to the company in liquidation, be considered to . be before the court. ... It is only by virtue of their position as defendant that this company are em- * poweied to set up a counter claim. If they are not defendants and could not have been defendants from the first then it is clear they have no standing as counter claimants, When they succeeded* in having themselves struck off the cause as defendants, they at the same time cut the ground from under their own feet as counter claimants. This is not the case of a plaintiff having failed in his action or having been nonsuited. 'ln either of these cases the counter claim: would no doubt remain as a complete and independent action for the determination of the court, irrespective of the fate of the: plaintiff g cause. But in such case both parties wpuld have been before the court. In the present action the company in liquidation could not in tsw have been made a defendant jsrid in affect never Were defendants, and when this court so decides it. seems tome they disappear from the action as though; they had never been joined as.parties at all," For these reasons T think I must strike out not i only the Golden Beach Company, in liquidation, as defendants, but also theirJ counter-claim against the defendants as twP 1 -*-*-"•* . ''-■- ' ". " ■*• "J it xs4 s**3 2a£«fftW t : *« **- .

" am now left to deal with the action as. it stands against the two remaining defendants—viz., Jodah Pierce Lane and the New' Golden Beach Company. There cannot be any cause of : actaon against a mortgagee merely as mortgagee, in a claim for trespass or damage on accoumVof tie action of the mortgagor .towards a third party. Even under the Mining Act the very comprehensive definifcion r of -what constitutes a mining partnership does not include a mortgagee unless it he a mortgagee in possession, which Mr Lane is not. So far as the claim against him is concerned I, therefore, give judgment in hia favour. There only remains now the New Golden Beach Company. Before entering into their case at length it would be-well to state in general' terms what I conceive is the liability of an assignee of a right such as the certificate of easement already referred to. (These remarks, are subject to'the point raised later oh lasr s *© whetiier the .Golden Beach' Company, are law the assignees of-the Gdde&Beach Company, seems* to me. that the liability of such assignee for the acta of his predecessors in title, would be limited to those consequences whiqhjmavoidably and inevitably, flow from the-exercise of his rights thereunder, and would' not extend to acts of carelessness or negligence on the part of his predecessors, nor for any act done by such predecessors outside of or in contravention to the powers conferred by the grant. Paragraph 1 of the conditions of the grant makes them binding upon the parties and their assigns.but the intention is clearly that the parties shall only be bound by these conditions as regards their own acts during the period of their ownership of ■ the respective properties and not,as regards the acts of their predecessors. In this case the acts complained of were done not by the company now in possession of the easement but by their predecessors, the company now in liquidation. The present holders, having availed themselves of the grant to their predecessors, and accepted the benefits conferred by it wonld in my opinion; be" liable to pay the provided compensation for such injury or loss as is naturally and unavoidably caused by the exercise of their right. |f they accept the benefit of the grant -they most also submit to its accompanying burdens ; these run -together. But it would be inequitable to charge them also with damage for preventable injury done by their predecessors. If this-view incorrect the aslgnees'liability would notoxtend beyond that contemplated by Paragraph P-of the conditions set out in the fourth Bch"eßul(|tc the grant. The other conditions imposed duties and restrictions upon the original" grantees which, if the allegations are correct,, were neglected and broken by them -long ybef ore the assignees came Into possession. Objection was taken that the wrongful act* alleged to bare been committed do no| constit»te\e trespass in-•o-mash"as they were done in pursuance of ♦be granted by the Warden. It appears fo me that.the rights created.by tins certificata o| e"asemeni are ahalagous to those powers conferred by Statute for the purpose of authorising acts- which, but for that authority, might be' actionable wrongs. No actionwill lie for damages provided the work is carried oatwith 'judgment and caution,'but if unnecessary injuryjs done then the ordinary reoiadies apply. ;£beonly indemnity to those whose property s is adversely airected by suob proper use of the < authority is.' the compensation provided by statute or cresited by the grant. If the Golden Beach tompnny (n& Wta Hquidatipn; faithfully .'carried out then 1 work nothing beyond the compensation provided can be demanded from them; but if negligently or designedly, or. by a .disregard of tha conditions imposed they have inflicted injury on - the servient tenement they are guilty of trespass and are answerable in damages for the injury done. It was urged that the conditions of the grant do "npt contemplate an action for damages because in Paragraph H it is provided that covvpemaiion shall be paid for such injury; No doubt it would have been clearer if the word-'damages' had been used, but the context plearly indicates that it is compensation by way pf damages that is intended; and the plaintiffs were justified in my opinion - in so bringing the action so far as regards the alleged dredging below the bottom of the paddock, the narrowing of the channel and the erection of the barrier of sand bags across the channel and the consequences resulting therefrom. The remedy under Paragraph P i-. not an action for trespass, but it is I think competent for the plaintiff to sue in the Warden's Court for the recovery of the compensation provided for, if after a demand , for such compensation payment is not made. Such demand was made and rejected. I think, however, the action for this particular is premature. At the time the action was brought no loss of time had been curred, as do dredging away of the the tailings had been commenced, and though sipce that date portion of the tailings had been removed, Charles Curno in his evidence states |t will yet be necessary to dredge away 15 or !2U feet of these tailings. It is not contemplated by Paragraph D that there shall be successive applications or actions for the recovery of" this compensation, and if judgment were given for the cost of rempving these tailjngs up to this (fete it does not seem to me that* further action could be taken subsequently, Besides this, I have no means of arriving at the cost of removing this portion of the tailings, • The

length of time and the amount of work expended, given in evidence, made no separate allowance for this particular heap. ( think, also, I cannot pass over the fact that the documents produced in Court show that no assignment of the interest of the Golden Beach Company, in liquidation, to the JJew Golden Beach Company has been registered with the' Mining Registrar. Until that is ' done, the Company has no legal right to the special claim (see section 140 of the Mining Act, 1898),. and conse juenfcly none to- the certificate of easement, for this cannot be assigned apart from the mining privilege for whose benefit it is granted (see sub-clause 2 of clause 55 of the regulations now in force made under the Mining Act), The position, therefore, is that, in law, the New Company cannet be regarded as the holders of the easement, or the successors in title to the company in liquidation. .They are not, in law, possessed of any right either in tha special olaim or the appurtenant easement, and cannot be charged with any 'liability by virtue of their position as assignees of the Golden Beach Hydraulic Elevating and Dredging Company, in liquidation. This, therefore, it seems to me reduces their liability to such acts only as they themselves have actually performed, and in this respect nothing has been proved against them except that they added tailings to those already stacked on the site of their paddock. This act remains to be dealt with. There is some descrepanoy in the evidence as to the present height of this heap, The grant restricted the height to 20 feet, and if the new company''had not by 1 the addition of fresh tailings raised it to a greater height they would hot have incurred any additional liability beyond what they might have been liable for under the present paragraph Dof the conditions, The estimate of the present height varies from 20 to 24 feet Curno says the heap has been made from 10 to 12 feet higher by the new company. I feel, no doubt, from the evidence given, that the stipulated height ; has been exceeded, and. by so much the new company has become a trespasser. , I have not gone'into the merits of the '■■ case' as a whole as to the injuries alleged* or ' I the amount of damages which should be I awarded, because as I hare intimated, I hold I that with the one exception mentioned, viz., the deposit of fresh tailings, the only re* mainiog defendant before the court, the: Neiruoideh Beach Hydraulic Elevating and i Dredging Company, Limited, is not liable in law; Trespass has 1 think, as I have said, been proved, with reapeot to fresh tailings deposited, but I have no data on which to assess the amount of damage done. Ido not think this is a case that could be met by merely nominal damages; Damages are the; essence of the action, and beyond satisfying; me that damage has been done, no evidence' has been offered as to the extent of the loss or the injury sustained, and I feel myself unable on that account to assess any definite sum.' s ''"'"' r ""_

There is an aspect of this case not referred to by Council, whioh I think I should iwtice.-7-The Alexandra Eureka Dredging Company, Limited, the.present plaintiff* were hot at the time" the alleged trespass was committed, % the owners of the claim. They did not, in fact, become so until July, 1903, when the former owners Messrs Steele, Leijon, and Magnus- by deed dated 22nd July, 1903, and registered with the Mining Registrar, on the 27th day of July, 1903, aaslgned this olaim to tjiem. When they acquired \ the property,' the trespass had already seen committed* and the injury done, Unless," therefore, this trespass is a continuing .fttffc in which a fresh coarse of action arisos.'iSe die iu diem, 1 cannot Bee, on what grounds Ishe plaintiff company claims damages for injuries done to their predecessor's property. Mr MacGregor contends that the trespass complained of is a continuing tort. -I do not-think so. 1 There was a completed trespass when the unauthorised acts were done, and the cause of action for all resulting injuries arose then. Successive actions for damages wonld lie under the circumstances,. All damage present and prospective must be settled by the one action. The fact that the'company did not remove 'the obstructions would * not constitute them continuous wrong-doers. , It seems to me, ; therefore, that the plaintiff company would, | beyond the compensation contemplated by I paragraph D of the conditions, have no cause of action for any of the injury complained of except that of the fresh deposit of tailingß already referred to. For the reasons above stated, I must, it seems to me, nonsuit the plaintiff company with respect to the entire claim against the New Golden Beach Hydraulic Elevating and Dradghig Company, Limited. I give judgment 1 for the defendant as to action against Josiah Pierce Lane. .-The Golden Beach Hydraulic Elevating and Dredging Company, in . liquidation, % have already held is not before the Court/- ■ J- have also | held that the counter claim of that company | isnot before the Court either. The other (remaining) defendants have joined in the cpunter claim, but there is no evidence whatever that they might have any cause of aetUm against the plaintiff company, and as, far as they are concerned plaintiffs are entitled to judgment on the counter claim. 1 do not think the evidence discloses a case for an injunction. trespass complained of has been discontinued for some montht, and there does not appear any probability of its repetition I make no order as to the Injunction. Each party will pay its own costs;