OTAGO PETITIONS BEFORE THE ASSEMBLY.

Dunstan Times, Issue 810, 26 October 1877, Page 3

OTAGO PETITIONS BEFORE THE ASSEMBLY.

(Glas ford v. Kcad and others.) I The Goldtiolds' Committe report on the petition of Stephen Kind and others.— Your committee has the honor to report as fol-lows:-Prom documentary and other evidence adduced it 'appears that in 1864 the petititioneTS applied for, and'obtained from the Warden of the district, » license or certificate, authorising them to divert the use of the water for geld-mining purposes from Thompson's Creek, on a run occupied l>y Mr Glassford in the Mittraberikia Val-. • ley and above the station ; and in January, 1872, the same parties also obtained a certificate for a tail-race, terminating in > Thompson's Creek. TJpoti the' Construction of these races the petitioners 'claim to have expended between 1,2,000 and 1.3,000. The petitioners remained inthe-undisturbed use and possession of the light which they had thus legally acquired under the Gohlfields regulations until 1874, when the runholders commenced legal -proceedings against them for the purpose of restraining them from running tailings into Thompson'" ('reek, the course of which leads through a pre-emptive section, held under .an agricultural lease granted, to Mr September, 187.1, twenty-one months after the issue of the ttiil-race certificate. • About the same time a similar; diffienl-y recurred at Maerewhenua, where Messrsßonon and M ; ' Master' had issued an injunction to restrain Howe and party from running tailings into a stream abutting on fhhd Dartly freehold and par ly leasehold. TJric'er these circum- « ancts, Howe 'sH\'. pty and Bead and party petitioned the Provincial Council for protection in the use and enj 'ymentof their several tights. 6n the 'Bth June, 1874, a committee of the Provincial Covihqil"reported on the Mserewbenna case as follows: tated by the Provincial Secretary in the Council, £ct a case stated for the consideration of the Appeal Court, with a view to save the expenses attendant upon protracted litigation. 2 Th?t,..-failing in their being successful in so doing, the Executive should take steps to de r end the action on behalf of Howe and party." On the following day (9th June) the committee also Mported en. the pi tition < f Stephen liead and others as fo'lows:—''Your committee having considered this yetitiofb. ha ,- e to report similarly to that rin the Mr.erewlienua rape (Hi ve :nd party) reported yes'erday, in the event of the runhoMer. (Mr 'Glassford) obtaining an injunction from the Supreme Court to prevent Stephen Ttead woiking his claim." The reemmenda'tion of the committee was carried out' in the case of Howe and party by the Provincial." Government, "bnt in the case of Bead and party similar assis'ance was refused, and Mr.Glass r ord, in July 1874, issued an injunction against the petitioner, thereby;forcing" them into a court of law in d;fenee of ri -h'n acquired i by virtue of the regulations issued tinker the authority of-the Goldfi.dV Act of TS6G.'| Mr Justice Johnston, before whom the case j was tried, expressed his dissatisfaction -with • the judgment which had been given in the case of Borton v Howe", and, when charging, the jury. lie said [here follow remarks]. I Th" jury returned a verdict for plaintiff of ; Is damages for polluting the stream and LSO for damages to the land, and they found that the defendants did not pollute the stream wrongfully; and the petitioners were further ordered to pay the taxed costs of plaintiff. L 22 16s Bd. Your committee reported to your honoiiiahlc House recommending that a sum of LSOO should be placed on the Estimates for repayment of ] e i!io ers co<<t? ; but upon the motion of the Hen. G. M'Ltan, the report was referred back to your committee for the pro Auction of further evidence. Your committee have now to report that an opportunity was Avon to the Hon. G. M'Lenn to p-oduce any evidence he thought fit; but that gentleman declined to do so, contenting himself with expressing a desire that question i should be put to Mr Macasiey and Mr HaLgittj as counsel for the plaintiff. The Hon. Mr M.T,ean, however, would n»t undertake to frame any questions for tin's purpose, and your committee considered that the evidence require I was ■not as between plaintiff and defendant, but as to the case itself being the same or different; to the case of Borton v. Howe. On this poin L , they were assisted by the remarks of Mr Justice Johnston as already ("tuote'l, and by tho evidence tendered before the committee by Mr Robert Stout. Your committee have now again to report 'l' tin tin o] iniiri of this committee the petitioners s'v ul bs repiil the c6sts' in-. curred by them in defending the'iT raghta>:in a court of law, and that it be a.reeqmmen-. da'ior. to the Government, that the sum of T.oOO he plaoed on'lie Estimate*, to defray ■mch cos's, subject to the Government '■>emg satisfied that the costs have been duly expended. (Borton .v. B.qwe.) . Tho Goldfields Committee report en the petition of J. Nea'le—The committee inotrnet me to report as follows :—That the f cts as set out in the netition appear generally to be correct; That the derision in Birton v. Howe, if accurate in law, gives the settlers upon the banks of the Mae'cwhenua river, below the goldfields, water rights superior to tho<-e held by others under license from the Crown foi mining purposes above that. The Legislature of the Colony having heretofore declined to de r cnd the rights arid privileges of those engage! in an ordinary manner in mining for gold tin ler license, the Judges of the Appeal Court had to decide the ease upon the maxims and traditions of common 'aw, m- nv of which are inapplicable to the circumstances of a new country, and are dirce'ly .the prosperity of rni.ny industries that "'might' be prosecuted with ixsn'efit to'the 'C'<l<iny.and without wious detriment to any holder of fruel old land:: Mr Jnstioo Clnpnan, in his jnlg.muit read by Mr Jus'TeeyorinnMn, states : '—"lt seems, therefore, that inasmuch as

the defendants owe their status as miners to the Goldfields Act, unless they can establish their right to foul the water of streams under the express provisions of that Act or by necessary implication from its provisions they can have no defence, the plaintiffs having a good cause at common law." lam also directed to report that the decision of the case does not appear to the committee to have be n at all satisfactory, especially in consideration of the fact that the case was submitted to the Court avowedly as a test case. The decision was given a long time after the hearing of the ease and one of the Judges was then out of the Colony. Mr Justice Johnston appears to have been content to have read the judgment of Mr Justice Chapman in Dunedin while expressing a general concurrence ; but subsequently in the case of Olassford v. Bead admitting that the) manner in which the decision of Borton v. Howe had been arrived at was not very satisfactory, ami that in its consideration the regulations had been overlooked. It therefore appears to the committee that+he decision in Borton v. Howe by no means se’s at rest the question at issue as to the actual legal position of the miners and landowners in gold-mining districts, as it was hoped it would do when the case was submitted for trial. The committee would urge upon the Government the necessity in future alienations of land upon goldfields of reserving to tire Crown all riparian rights, so that no settler may have any-ground in law for an action against his neighbor, except for actual damage to the holding. The committee are cf opinion that water rights granted in proclaimed goldfields upon payment to miners, without actual reservations of any kind, which rights have been duly acquired under the Goldfields Act from time to time in force, ought to be respected by the legislature. The committee have therefore to recommend that the Government do take the whole subject into consideration and initiate such legislation as may appear necessary to render of practical and certain value the rights hitherto and hereaf’er to be granted to all classes.— V. Pvke, chairman.