THE MAEREWHENUA RIVER POLLUTION CASE.

Mount Ida Chronicle, Volume VI, Issue 326, 4 June 1875, Page 4

THE MAEREWHENUA RIVER POLLUTION CASE.

COURT OF'APPEAL, WELLING-. •• /' ' TON. (Prom the ' New Zealand Times.') 1 Monday, May 10. (Beforei Mr. Justice Johnston und Mr. , Justice Gillies.) , BORTON V. HOWE. , In this important case, which- decides the question whether or not'goldminers have the right to pollute streams, his Honor Mr. Justice Johnston delivered judgment as follows . Before delivering the judgment of the Court in this case, it is necessary that I should make a few preliminary observations. The case was called on towards the sittings of the Court of Appeal in November last, at a time when, after unusually protracted and important business, some of the judges were on the point of leaving this place for the purpose of attending to their judicial districts. The Chief Justice had left before the commencement of the argument, Mr. Justice Gresson was obliged; ;to retire shortly after its com..jnejicement,;. but. the Court, consisting of Mr. Justice Richmond, Mr. Justice Chap- • man and • myself, were desired by the counsel for the-parties, on account of. the urgency and importance of the questions involved, to hear the argument out. The case was most ably and elaborately'argued , before ,on the 3rd, 4th, and 7th of December last, by the Attorney-General and Mr. Smith for the plaintiffs, and Mr. Macassey and Mr. Stout for the defendants. At the close of the argument, as it was impossible for the Judges to remain here sufficiently long to consult upon, settle, and deliver their judgment, it that judgment should be delivered at the present sitting of the Court, and taken as of the last sitting. Events which have occurred since the rising of the Ceurt, including the departure of Mr. Justice [Richmond for England, have rendered it impossible for the Judges who heard the argument to meet together and have those personal consultations and discussions which would have been most desirable in a case of such interest: but lam happy to be able to say, that while Mr. Justice Chapman and I have agreed, not only in substance, but in the expression of our opinion, Mr. Justice Eichmond also had, before leaving the Colony, as far as time had permitted him to consider the arguments, substantially consented, to the answers which will be given to the questions stated in the case. The course which I propose to adopt in delivering the judgment of the Court after reading the case, is to read the written opinion of Mr. Justice Chapman, Which ho forwarded to me before his retirement from the Bench, and in which I concur ; and-then to give : answers to the questions propbsed, in which Mr. Justice Chapman concurs, and to which Mr. Justice Eichmond had substantially assented. ~; ~,,: J . ~,., S !

[His Honor read thecase as stated,and . the questions propounded for, the, opinion of the Court.] Mr. Justice Chapman's judgment is as follows :—-This is a special case stated, by the; parties, and moved into this Court by consent. It is founded on an alleged trespass - by the defendants, who-are miners; for pol- " Juting or foiling certain non-navigable streams or watercourses running through, or abutting upon, the land of the plaintifis, who are lessees of certain 1 lands in Otago • held by them for pastoral purposes. They are also tenants in fee of certain purchased lands. The defendants, as miners, claim to have certain rights to mine for gold, and to take, divert, and use the water of streams running through Crown Lands, by virtue of their " miners rights," held by them under the Otago Goldfields Act, 1866, which, they contend, justify them in using the streams in the manner and to the extent complained of. It 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 of action at common law. But although the argument turned principally on the effect of the several provisions of the Goldfields Act, 1866, read with fheOtago Waste Lands Act, 1866, the common law right of action was riot entirely conceded by the learned "counsel, for the • defendants. It was questioned by Mr. Stout'how far the common "law of England was applicable to mining in this" colony, and it was suggested by Mr."* Macassey that, if the common'law rights of riparian proprietors and occupiers were strictly enforpedeflgainst miners, some minjng operationp, in some mining localities, could not be carried on ; the cost being such (mean'irig the cost of diverting the tailings or "sludge" into harmless channels) as to put a stop to the enterprise. Assuming that such might be the result in some cases, it furnishes a good and valid reason forJegislative interference. Questions have occasionally, but not, very frequently, arisen in the Courts at Westminster and in the Privy Council, as to the applicability of certain portions of the law of England to the circumstances and condition of the colonies. -The wellknown rule is that colonies founded by settlement take the common and statute law ot England, " so far as the same is suitable or applicable to their circumstances and condition." Now, whenever the ques-r tion of suitableness or unsuitableness arises, it has, so far as I have been able to discover, turned upon the construction pf some statute or class of statutes, and it seemed always to have been assumed that the common law passes to the colonies without abridgement or exception. Mr. Charles Clarke, in his '■' Summary of Colonial Law," s&ys: The common law of England is the common law pf the Plantations, and all statutes in affirmance of the common law,, passed in England, antecedent to the settlement of the colony, are

in force in that colony." (Page' 8,. note 4>) vßlackstorie *(1 Com. 108) gives as. instances" the general rules of inheritance and the protection from personal injuries."' The law> of primogeniture,'-for irtstance;has always been accepted arid enforced in .the colonies (except ; of course, where! the French law or the Dutch; law prevails); without : question-; 'although it is, in 1 -ihe' opinion iof many jurists and statesmen, but little suited to' ; the/circuriistance3 and dition'of acolony. The instances of .laws which do- hot ; pass help' us; to - ascertain' such as do pass; ' In the Attorney--;Gen-eral v.'Stewart (2 Meriv. 143),' it was decided .that'the'Mortihain, Acts do'hot;apply to colonies^ l arid the bankrupt laws, \ the' poor laws,- and the game laws; \'!we're; also'. referred' to as inapplicable. 'lri Dawes v: ( Painter'' (Freeihah 175), it was. said s that;"penal statutes never :apply to the colonies," meaning, not the criminal law, but 'statutory ! ~iriact--' ments. ; enforced My ' penalties!, Blackstone also'mention's"laws of'polhe ( and. revenue," sucfrespecially as are' enforced' by penalties. All these are statute laws. The application of some bene- \ ficial statutes is prevented by i;he want' of some machinery necessary to give them effect. Whitakerv.Hume (IDeG. McN. and G. 503). Taking all the cases to be found in the Reports,, they are too few in number to establish any exhaustive general rules as to suitableness or applicability of English statutes to the colonies; and, therefore, "what shall be. admitted and what rejected must, in cases of 'dispute, be\decided in the first instance by the provincial (i.e. Colonial) judicature, subject to the revision and control of the King in Council." (1 El. Com. 108). There is nothing in thiscase to show that the defendants had acquired any prescriptive right to foul the water of,the streams in question, before the 1 plain-' 1 tiffs had acquired their rights as'riparian proprietors: on the'contrary, the eighth paragraph of the "casei 'admits ['. the priority of the plaintiffs. 'They were licensees under Acts in' before 1866. They then, under the :i Otago "Waste Lands Act, 1866, ■ surrendered their licenses, and 'became -lessees; 1 Subsequently they acquired the free-" hold of certain portions of the land' they occupy, by purchase. As some of these portions may have been recently acquired, they may be' excluded, by priority; but there is quite enough', in the eighth paragraph to establish, priority over lands sufficient to sustain the right of action. Moreover, a change in the tenure, enlarging the plaintiffsf; estate, would neither enlarge orabridge their rights as riparian proprietors ; -but this point will; sink into comparative unimportance if it should turn-out up-, on .examination that th'e Goldfields Act does not extend to the- establishment of a right to foul the water ■ of streams. : • ■■ ■<■■ Thus we are remitted to a consideration of-the extent of the rights of the as miners, under the Goldfields Act, 1866. -i ■!"* -I-.-- i ■ ;."

The section which defines and enumerates the miner's rights and privileges, by virtue of his" miner's right.", is the sixth, which enacts'that "every' miner's right . . . shall authorise the h6lder (amongst other things) to" take or divert water from any spring,, lake, pool, or stream, situate (sec) or flowing through or adjoining Crown lands, and to use such Water for mining for gold." Nothing is expressed as to the destination of such water, after it' has been so taken, diverted, used,' and by such uses fouled. On the one! hand there is no expression as to allowing' such water I .to find its way backto the streams in a fouled, condition ; on the. other hand there is no express duly cast on the miner to avoid or prevent such fouling. It seems, therefore to have been left advisedly to the operation of the ordinary rule of law, which distinguishes between the use and abuse of a right, by requiring every man so.to use his own rights,-howso-ever required, as hot to injure those of his neighbor. ("Broome's Legal Maxims." Sic utere tuo, Sfc. > (To be concluded in pur next) -