APPEAL COURT OF NEW ZEALAND.

Mount Ida Chronicle, Volume V, Issue 302, 11 December 1874, Page 2

APPEAL COURT OF NEW ZEALAND.

THE MAEREWHENUA CASE. " - •BORTOtf AND OTHERS V. HOWE AND ' OTHERS. (From the 'Guardian.') We extract the leading points advanced by the Attorney-General in his opening for the plaintiffs:—The first question turns on the Goldiields Act, and no doubt the defendant* will rely on sections of the Goldiields Act, 1866, and the interpretation of the word " '' mine." The sections of the Act bearing on - the question are—section 3, giving power to ■ •' ■ proclaim a goldfield; section 4, providing for the issue of miners' rights; section 6, showing what a miner's right authorises; section 21, as to the use of water from streams, pools, &c. Section 11 gives power to make regulations, and-lpart 3 of the Act (it being admitted that it has been brought into operation in Otago) deals with water rights, "on payment of compensation. Section 112 provides that no one can sue in Warden's Court, without a miner's right. It will no doubt be contended by defendants' counsel that, by miners' rights' and licenses, defendants ac-" quired a right, not only to divert and use water, but also to allow water to flow from their claims impure, with' earthy substances held in solution. We contend that these rights and licenses give them no such right. The Court is to assume that there has been no negligence on defendants' part; but we say that, as in England, negligence is of no importance. So, here, if there is an interference with a right that can only be sanctioned by prescription, or express grant, or by express words of Statute. The second question must mean that, supposing auriferous deposits cannot be "profitably" worked, they need not be totally uncorked, for earth in which gold is found might be carted away. Wo admit that so long as lands are Crown lands the Crown can give rights to use and divert water, but that this power ceases when lands become private property. Miners, runholders, and freeholders are all, under the Act to get compensation if their rights be affected; and that being so, it cannot be contended that private lands ax& affected on the ground of necessity. The, Goldiields Act does not grant any more rights than the Queen may lawfully use. We- assume that, if defendants were not occupying lands on goldfields, plaintiffs would.have a right to have water flow past'their land unpolluted; and the question therefore is, Did the Goldfields Act allow pollution of streams? . There may be land that can be worked in such a way as not to interfere with private rights, whilst defendants may have taken up claims that canno;E : be worked without immense injury to private rights. Then as to the rights of the Queen. It has been decided . that gold belongs to the Queen, even though the Crown has parted with the land; £md

i t that wo admit. Wo do "not, however, admit that the Queen has any prerogative in New Zealand. The other side will verylikely rely on the case in Plowden—the Queen against the Earl of Northumberland. , And following the authority in that case, it § may be said that the Queen could foul streams, if it were necessary so to do so, in order to get gold. But there are no such prerogative rights here. The rights under which miners act are preferred by statute. When the prerogative of mining for gold is exercised, it is for the Crown's benefit; but in New Zealand mining is for the benefit of the miner, not of the Crown. The question of negligence is unimportant—this is an interference with rights, and does not depend on negligence, An attempt has always been made by manufacturers and others, when charged "with fouling streams or causing a nuisance, to say they have carried on business with care and without negligence. No doubt it might be contended that, quite irrespective of the Goldfields Act, if you purchase land where persons above you your purchase are fouling water which flows by your land, you cannot complain. It may be argued also that, because there are so many miners polluting a stream, and because it is 80 difficult to assess damages, the plaintiffs are without a remedy.—Mr. Justice Richmond: suppose a solitary settler at the Kawarau. If the river is being polluted, who are the polluters but hundreds of people scattered over a vast area.—Mr. Justice Chapman; in the Taieri, there are a number of settlers who complained of a solitary miner at Hyde, when for miles from Hyde to Hamilton's miners are sluicing. The point was not followed up.