SUPREME COURT. 20th July, 1846.

New Zealander, Volume 2, Issue 60, 25 July 1846, Page 3

SUPREME COURT. 20th July, 1846.

Taylor v. Whitaker and others. On Saturday, the 11th of this month, * motion was made, before His Honor the Chief Justice, on behalf of the Plaintiff, Mr. John Taylor, for an injunction against the Defendants, four in number. Mr. Bartley appeared for the Plaintiff. Mr. Whitaker, Mr. Merrinian, and Mr. Conry, for the several Defendants. The case was fully argued by the Counsel on both sides, but a report of the arguments is unnecessary, as it will be sufficiently understood from the lengthened judgment of His Honor, which he delivered this morning, as follows :—.: — . The Plaintiff in this suit allege s himself to be tenant in fee simple of the Island of Kawau, by virtue of a conveyance to him from one James. Forbes Beattie, the immediate grantee of the said Island fiom the Crown. The plaintiif admits that he holds the -Island on behalf of himself and a great number of other persons. It ap-v pears that he has been for some time working a mine of copper ore on the Island* The defendants, Whitaker and Heale, claim also ander a Crown Grant, by which " a piece or parcel of land below high watermark, near the Island of Kawau," was granted to them as tenants in common. The piece of land so granted is adjoining to that ; part of the Island in which the mining operations of the plaintiff are carried on. On the land comprised in the last mentioned grant, the defendants, Tiller and Harding, are working a mine under a written agreement, with the other defendants, on terms which do not appear. The plaintiff has moved for an injunction to restrain the defendants from working above high water mark, and from removing any ore from above high water mark, and (generally) from working their mine in any manner so as to injure the plaintiff Without adverting at present to the extent to which the Court is asked to interpose its authority, I proceed to consider the preliminary objections made by the defendants to this application. It is sworn by one of the defendants, that the Crown Grant under which plaintiff claims was made under the Land Claims Ordinance; and it is contended, that, the grant being under that Ordinance, the land into which the defendants are alledged to have wrongfully carried their works, cannot belong to him, for it is contended that if the grant be consistent with the provisions of the Ordinance, all land within one hundred feet of high water mark must have been excepted; and that, on the other hand, if such exception be not introduced, the Grant is inconsistent with the Provisions of the Ordinance and therefore illegal and I void. Now (supposing it to be sufficiently proved that the Grant was made as alleged by the defendants) I do not think this objection c;m prevail. I find no declaration in the Ordinance that such a grant as this is alleged to be shall be null and void, I do not find any words forbidding the Governor to make such a Grant. The only prohibition is directed to the Commissioners and relates to one of their functions. " Provided however that no Grant of land shall be recommended by the Commissioners &c. within one hundred feet of high, water mark." Snch a grant may or may not be voidable upon proper evidence : I say nothing on that point for it is not a question to be disposed of indirectly. Whatever may have been the point decided in the cas« before Mr. Justice Chapman (of which I do not possess any authentic report) yet, at any rate, in that case the Grant itself was before the Court j and indeed the effect of the Grant involved the whole case before the Court. Here the Grant itself does not appear ; but there is a prima facie case shown : which, in the present stage of the suit, is sufficient. It would be most dangerous to dispose of any < question of title or affidavits like these : and it is contrary to the Practice of Courts of Equity to do so. It would be particularly dangerous in the case of a Crown Grant. Another objection by which the plaintiff has been met at the outset of his case is this ; — that the persons beneficially interested in the land, of which the plaintiff is the legal owner, ought also to be parties to this suit. This is apoint which the defendants may fairly raise hereafter : but at present the only question to be considered, is, whether the defendants have so acted, as to make it necessary to protect the estate vested in the plaintiff; and to secure the interests of the persons for whom he is trustee, whosoever they may be. If-uch be the case, the defendants cannot complain of being restrained on his single application.— Const, versus Harris, Turn, and Russ, 514. We now come to the very merits of the question. — Has the conduct of the defendants, or any one of them, been such as to give the plaintiff a right to the injunction ? This again includes several narrower questions. First.— ls it proved, that the defendants have (as the plaintiff alleges) worked into the land comprised in the grant to him, and taken copper ore therefrom ? The evidence as to this main point is very contradictory. The plaintiff, Tnylor, says in his affidavit that, '• the defendants' mine has been worked, and is worked by them above high water mark— that the defendants are driving an,d working into land in the Island of Kawau, and removing therefrom large quantities of valuable copper ore." The affidavit of Frederick Page, is also positive, that, '• the defendants' mine has been worked above high water mark," and further "that copper ore has bten removed by the said defendants from above high water mark." This deponent himself worked in the defendants' mine, during the months of April, May, and pait of June last John Whitford, who appears to be an experienced miner, and who on the I6ch June last, visited the defendants' mine, says also positively, that, "the defendants hdve worked above or bpyond high water mark," and that " they have removed a large quantity of Copper ore." This witness, like both the preceding ones, says nothing as to the way in which he arrived at the assurance that the defendants had pushed their works beyond their proper boundary. But this witness 6peuks also of a conversation having passed, between himself and the defendant Harding, in which that defendant stated, a certain point of land, to be the boundary of the plaintiff's land, and high water mark ; and then he goes on' to say,-that, " the defendants have worked beyond that point inland,

into the said Island towards the mine of the said plaintiff; seveial fathoms." Now, it is important to observe, that, according to the plan sworn to as correct, by J. L. Heyd'n (which I shall notice hereafter,) the assertion attributed to Harding, is in itself subbtantially coirect; the house he referred to being close upon the high water »ark: yet, fiom the altered course, which according to that plan is tdken by the high water mark in receding inwardb from that point, it would be quite possible to work even for several fathoms landward without coming upon the boundary. So that this piece of evidence (what- I ever weight it may have had in forming the opinion of this deponent), only brings us back again to the root of the whole dispute, namely to the question. Where is the true boundary line 1 William Howe, who was a miner in England for thirteen years, sne.ikt, only as to belief that deiendants have woiked beyond high watei inaik, and appears to found that beliei on the tact, of his having heaid whilst at work in the plaintiffs mine, the noises made by the men at work in breaking oie in the defendants' mine. Ido not see how any stress can be laid on this circumstance taken by itself, foi both pai ties might rightfully (in the absence of any prohibition), woik up to the common boundary. This also resolves itself into the same question as before. The weightiest affidavit on the pUintifl's side, is that of James INinnis. It derives its importance from the admitted experience of the deponent in the management of mines— he is now manager of the plaintiffs mme — and also from the fact that he on the 16th and 17th of June last surveyed and dialled the defendants' mine. Now it is remarkable that this witness with far better means of judging as to the facts in question, is (as often happens) much less positive than the others. All that he says is that he " discovered that the defendants' mine had been partially worked inwards, and as he verily believes, above high water mark." This deponent also sets out a plan of the works of both the plaintiff and the defendants. According to this plan the defendants have overpassed the boundary by a space often feet. Upon the.face of the plan is a memorandum in the following words :— "jN. B. — The measurements on straight lines are correct. The highwater line is roughly sketched." These latter woids (though in themselves ambiguous) appear when taken together with the foregoing to imply some doubt as to the correctness of that line as laid down on the plan : which doubt may account for the guarded language of the affidavit itself. It is observable that the distance from the termination of the defendants' workings, to what is called "Taylors Winze," is, according to this plan, fifteen feet ; whereas it precisely tigrees with the measurement of John Halls, which will be mentioned presently. The main evidence adduced in answer by the defendants, is as follows. The defendant, Harding, asserts (just as positively and just as generally, as the plaintiff Taylor has asserted the "contrary), that the defendants' mine is not now, and never has been worked inland beyond high water mark. This is followed by an affidavit of John Halls, who is admitted to have the advantage of great experience as » Purveyor, and who asserts, that he has had a great deal of experience in surveying coasts especially. This deponent sets forth a plan grounded on a survey of the defendants' mine, made by him since notice of this motion was given. He says that, "he surveyed the said mine with great care and accuracy, and with good and sufficient instiuments, and that the plan to his affidavit annexed is quite correct." He says also that "he took the greatest care to ascertain coirectly the high water mark, and that, during the time he was making the said Survey, there was cleared away under his direction, some Cubbish thrown from the said mine, and an adjoining mine of the plaintiff, and that he was thus enabled to see clearly and distinctly high water mark." And this deponent further saith, that, "none of the workings of the said mine, worked by the defendants Tiller and Harding, reach within fifteen feet of high jwater mark. And if the said workings are continued in their present direction, that they would not reach high water mark in less than eighteen feet." This testimony, in itself precise and distinct, is still further strengthened by the evidence of John Long Heyd'n, formerly Superintendant of the plaintiff's mine, and who was engaged at the same time as the last deponent to survey the defendants mine. He says that, on arriving at Kawau, "he found certain piles which he had driven in below high water mark were still there, but some portion of the earth which he had thrown down againstthem was washed away." He says " that the high point of land cut down for original dressing floor and hutch for John Taylor, as marked in the plan annexed to the affidavit of James Ninnis," (which point is to be noticed as being that, at or near to which the high water line takes a northerly direction), " was cut down by the direction and under the superintendance of this deponent ; and that he perfectly well recollects how far that point extended, and where was high water mark, before any rubbish had been thrown down ; and he says that " all the workings of the said mine are much outside of high water mark, and that none of the said works are nearer than several feet from the line of high water mark, as originally known by this deponent, and as ascertained by this deponent by inspection and observation," at the time mentioned in the affidavit. The defendant Heale says, that he has carefully surveyed the mine, and sweais to the correctness of a plan which differs but slightly from that of John Halls. Now, upon these affidavits, 1 think the preponderance of evidence is greatly in favor of the defendants. The imperfections of affidavit evidence are obvious — each witness being asked to state so much as the party calling him may wish, and there beiagno power' of cross-exam-ination ; but, taking the evidence as I find it, I cannot but think that the evidence offered t by the plaintiff is defective, and that there is mucli stronger evidence the other way. Bc&ides these allegations of injury actually done to the plaintiffs land by the defendants, some evidence is produced for the purpose of shewing a deliberate intention on the part of one, at least, of the defendants, to do such injury. This evidence consists of a conversation which Frederick Page swears to have taken place between himself and the defendant Tiller. I say it is confined to Page's affidavit, for the statements made by Whitford respecting the piece of ore said by the defendant Harding, to have been taken from the west end of the mine, I pass over as being too slight to build any practical inference upon. The witness's own conviction is evidently strong, but we have no means of satisfying ourselves as to its soundness. Page swears that certain false representations as to the operations of defendants, made by himself to workmen of the plaintiff, were expressly and in significant language approved of,by the defendant Tiller. Page further bays, that the false answer given to the plaintiff's workmen, was so given in consequence of previous direction from the defendant' Tiller. Ido not enter into a detailed examination of the nature and due effect of this evidence, because (to say nothing of its only affecting one of the defendants,) it can at the utmobt amount to nothing beyond proof of intention; and I have not found, nor has there been cited, any case in which proof of merely a past intention unaccompanied by any wrongful act, or by a threat, or avowed determination to do such act, has been held sufficient to warrant a Court of Equity in interfering by Injunction. But as regards the position in which the defendant Tiller personally stands before this Court, it must be remembered that Tiller has not denied or in any way explained any of Tage's statements.

The last ground on which this application is rested, is this — that irreparable injury is likely to be done to the plaintiff by the mining operations of the defendants being conducted in such a manner, as to cut through a certain rib or bunch of earth containing copper ore, described as having been left untouched by the plaintiff as a protection to his own mine. Now, the affidavits are not very definite as to the position of this rib of earth : but the plaintiff's affidavit describes it as " part of the said Island j" and, in accordance therewith, Whitford, Rowe. and Ninnis all speak of it as being "in the said mine of the said plaintiff." tf so, and if the defendants have actually cut into it, the Injunction must go upon that ground only, whether the ultimate evil of a flooding and utter ruin of the mine be reasonably to be apprehended or not. But the evidence which has just been considered makes it clear to me, that if these descriptions given by the plain tiff and his witnesses be correct, the defendants have not cut into it. And it is observable, that no one of the affidavits directly asserts that to be the case. The strongest, which is that of Ninnis, goes no farther than a statement of belief; and his evidence is, as I have already shewn, opposed by other evidence of a much stronger kind. The rest of the witnesses express only their belief that the defendants' will — or that it is their design and intention to — work into and remove the said rib ; which is clearly not sufficient — to say nothing of the direct denial of such intention, Upon oath, by the three defendants who have appeared. It is, therefore, unnecessary to inquire into the nature of the damage to be apprehended in the event of their so doing, or to pronounce whether it be such as a Court of Equity will give protection against ; by Injunction, or not. The result then is — that no case for an Injunction has been made out. A further result is— to exhibit clearly the unfortunate position in which the parties to this suit stand, and the evils to which they are exposed as the almost inevitable result of that position, and from which no Court can save them. Unless great and constant care be taken, either party may (even unintentionally) trench upon the rights of the other : suspitions of injury will naturally be continually arising on one side or other, with or without cause. For these parties are separated only by a boundary in its own nature somewhat uncertain, and which has already, by the operation of man's hand, been made more so ; which even now, after the lapse of not many months, is to be discovered by removing rubbish, and to be identified by the memory of witnesses. Now this Court has no power to restrain either party (in any ordinary case) from working to the full extent of the Grant under which that party claims, and close up to the common boundary. Encroachment or trespass may be checked, but lawful operations in a man's own ground cannot be interfered with, except upon very special grounds, and upon grounds stronger and clearer than are here shown. I say all this in order to point out to both parties the necessity — for their own sakes and for the prevention of a wasteful litigation — of the exercise of good sense and good feeling on both sides, and of some understanding between themselves as to the mode in which their operations shall be carried on hereafter. The present motion must be refused as against all the defendants— but Tiller, with costs.