DONNELLY V. THE HIT OR MISS WATER RACE COMPANY

Mount Ida Chronicle, Volume V, Issue 290, 19 September 1874, Page 2

DONNELLY V. THE HIT OR MISS WATER RACE COMPANY

; The following is the opinion of his Honor Judge G-ray, on the'points re-" served for his opinion by the special case lately stated by Mr. "Warden Stratford, in the case :of Donnelly, co mp lainant, versus the - Hit or Miss Water Race Company (Registered), defendants:— In this case I would have answered the questions reserved for my opinion at the sitting for which the case was * set down, and before I left Naseby, but that I had already a reserved judgment pending in a water case of great importance at: Clyde, which was contested with great earnestness on both sides, and in which there aiose a question similar to one submitted by the Warden in this case. This question, as it arose in Clyde, I was dis--posed to reserve, among others, - for the opinion of the Supreme Court, and I wished to abide that opinion of the Supreme Court in the present case as well as in the Clyde case. The Clyde case, however, seems now likely to be settled, and therefore to give no opportunity for eliciting the opinion of the Supreme Court upon the point in question, so there is no longer any reason why I should delay answering the questions referred to me in this case. .m. -

The Warden has stated in his case a great deal of matter which is evidence merely. I think that the facts found by him, so far as they are material to the questions at issue," may be stated as follows:—The defendants^-. the Hit or Miss Water Race Company—or their predecessors, in title, obtained'a grant" of the. water race .in- question' (at or- nearNaseby, I believe) in the year 1863. The race is eight or nine miles in length. That, in the year, 1869, the defendants obtainedfrom- the Warden," in the usual-manner, a li-' cense to extend or alter their race—the "Warden says to alter their race, and on this difference between "altering" and "extending"' he lays much emphasis,. ohe alteration or extension, was for alength, I think, of about a quarter of a mile, not having a teimination for itself, but returning, after a'detour,' into and joining the main course of the .race. The new channel was, in fact, a loop. After the /.cutting of-this loop, that portion.of the original race from which it diverted the water was no longer used, save an inconsiderable at the upper end of it. ■[ The complainant in this, case, a miner, complained not that this section of the old water - rape had been " abandoned," in which case I might have been more disposed to agree with —tJlfri-Otiinia.f'iluuj but "bllO-t it "iiacJT been " entirely unused " for a space of more than one "calendar month, within the'meaning of section 11 of Regulation XII. of the •Regulations, and sub-section 6 of section XXI. of the Goldfields Act, 1866, and he ! prayed that it be declared forfeited. ' ' The case.was heard before Mr. Warden Stratford, at. Naseby, on the 20th of July, 1874. The Warden expressed his opinion that the words "water race," as used in the Regulation and the' section of the Act,"did t not mean a water right, but meant the ditch; through which the/water was conducted; and in support of this'opinion he cited that section of the Interpretation Clause of the Actwhich interprets the words "water race" as follows:—" The words .'water race' shallbe - understood to include any artificial water channel," &c. , .&c. I cannot concur with the Warden. I think, as to this interpretation' I clause, he has not sufficiently adverted to the fact that it prescribes that the words shall ."include" certain meanings, but does not , necessarily exclude other meanjpgs. lam still of opinion that, as affects the question , of. forfeiting what is called " the right to a water race," the chief subject matter within > the contemplation of the Act and of the Regulation was the right to the water, not the right to the channel, which, though it may be included in the" same grant, and may become the subject of the same forfeiture, is, I think, quite secondary as regards the policy of the enactments.' This was the subject of much discussion in a case heard before me. not long since at Naseby, the name of which I am not now able to recall, but it will be within easy recollection of all the officers of the Warden's Court at Naseby. T held then, that the water right, and not the channel,, was the subject matter chiefly contemplated;" by these sections; and I am bound by that decision .until I am released from it by a decision of ; the: Supreme Court, or until it be--.comes';clear to myself, beyond all question, that it is no longer tenable. lam very sensible of the countenance afforded by the interpretation clause, to the, opinion - expressed by the Warden. lam also very sensible of ;the; numerous cases in which the Wardens . who are daily working the Goldfields find themselves unable to do what it would be manifestly right to do, being baulked of doing it because the provisions of some Regulation; (shortsighted,- we might now feel disposed to call it) does not extend far enough to cover the object; but where the Legislature has fallen short we, who simply administer what they enact, cannot eke out their purpose by piecing on to their enactment. This would be adding a cubit to our stature, and that we must not do. I feel that it may become a serious evil that the owners of water races should cove*? a Goldfield with long disused' sections of water races to the obstruction of mining, and tb&t there should be no means of forfeiting this Misused ground; but it is for the Legislature, not for us, to make the necessary amendments in the law.

I will advert, for a moment, to that por? tion of the Warden's judgment'in which he expresses his opinion that the deviation in question was an alteration; not an extension. I do not at present see that, if the deviation were called an alteration, the portion of the race that went into temporary or long-con-tinued disuse would thereby necessarily become the subject of forfeiture, although the use of the word " alteration" id the certificate would probably -have some weight as evidence in proving an abandonment; 'but this is not a. proceeding to enforce an abandon-' ment, and looking to the certificate it will be seen that the word used in it is j" .extension," not " alteration," which would seem to show that the holders intended to avoid using a word that might countenance the idea that they meant to abandon the old section of race. The new section of race, it is true, returns again at a lower point into the old race, and the word extension seems less applicable to a branch returning than to a branch having a new terminus; but I do not now see why a branch taken round to supply

a new set of miners and returning to the oldrace may not be an " extension." The Warden asks me three questions, each at a length which it is liot necessary to repeat here. It will be sufficient if I adequately indicate each question to which I give an answer.

Ist. Was tile Warden fight in holding that the words " entirely unused " are to he interpreted as referring to the complete disuse, without interval, of the portion of the water race referred to in the complaint ?—I presume' the Warden means ta ask "Whether he was right in holding that the words of the Regulation— " all right to any water race entirely unused for the space, of one calendar month, 3 ' : &c.—as used in the Regulation now in question, are applicable to the disuse of the portion, of water channel referred to in the complaint. To this I answer I think the War> den was not right. : 1 2nd. The Warden's second question includes in it a good deal of argument. Stripped of the argument, it asks, Whether the' defendants, having obtained a certificate and atitle for the new portion of race, can retiin their title to the old portion ?—I think they can if; they have not abandoned it—[in the true" legal sense of- the word " ahandonf--merit,"]—but this proceeding is based, not on an allegation that the defendants have abandoned it, but on an allegation that they have.left it unused for one calendar month".

. 3rd. By this question the Warden asks,Whether the same Regulation which empowers him to decree a forfeiture of the whole 1 water ; race— [l.would-say " water right"]—if- " entirely unused " also empowers Mm to de> -cree of a portion of that" rights-. [that s, a portion of the channel] —if it beentirely unused ?—I would say it does .'not'; but a question very nearly, if not quite, iden-, tical with this arises, in a very unexpected' form, in a case at Clyde—the same already" alludedllo—and I may yet have to reserve itfor the opinion of the Supreme Court. I. do\ not desire to forestall that opinion," and therefore I will not answer this question po;- ; - sitively. I thirik the answers already givento the other questions will be sufficientto de- 1 termine the Warden's decision in the case? now in hand. -