THE APPEAL COURT OF NEW ZEALAND.

New Zealand Times, Volume XXIX, Issue 4281, 9 December 1874, Page 2

THE APPEAL COURT OF NEW ZEALAND.

Monday, December 7. (Before their Honors Mr. Justice Johnston '■ Mr. Justice Bichmond, and Mr. Justice Chapman.) BOETON AND OTHERS V. HOWE AND OTHERS. The Attorney-General and Mr. Smith for the plaintiffs; Mr, Macassey and Mr. Stout for the defendants. Mr. Stout : Considering the length that the arguments adduced have taken, it was only necessary to refer to two or three points, and possibly to review some of the positions Mr Macassey had taken up. It had been granted on the other side that the Queen had the right to all the royal metals in land Crown-granted in New Zealand. , Now, that implied reservation included -within it the right to take these metals, else the reservation was, useless. If there was then this right to the royal metals, all other rights incidental to their acquisition were also reserved. That being so, the judgment of the Ballacorkish Mining Company v. Marshall was in point, because it showed that the use of water was an incident of mining. Mr. .Justice Johnston : But does that use include fouling ? Mr. Stout : Yes ; as not only quantity but also the quality could be interfered with. The next question was how far the common law rights were abridged in New Zealand. The right ad medium Jilum aquee to the soil stood on the same footing as ad medium Jilum viac. Mr. Justice Bichmond : The contention of the other side is that right of access is sufficient, and that it does not matter in whom the right of the soil vests. Mr. Stout : That was so contended ; but still the use of the water is an incident to the land. It is impliedly given when the land near the stream is given. Mr. Justice Johnston : The other side called it jus naturals. Mr. Stout : That was hardly appropriate, as without land, or special grant, there was no use to the stream given. The right to the soil is therefore of importance, and it may be well to see why the right to to the soil ad medium jilum was supposed to be granted. In Lord v. The Commissioners of, Sydney it is said that the “(surrounding circumstances ” will be considered “before this use will be accepted and secured. It was argued what use would the reservation of a creek be to the Crown in the colony. The like land of argument prevailed in Davis v. The Queen, 1 w. A’B., and W. Eq. 35, and 6 W. W. and A’B. Eq. 106. Mr. Justice Bichmond : They held there that that law was also applicable to public streets. I think it would be absurd to hold that the grantee of every quarter of an acre in a town had the right to half the soil of the street opposite his building. • Mr. Justice Johnston : At most the Victorian Court is of concurrent jurisdiction. Mr. Stout : Both rights must stand together. Mr. Justice Johnston : . They say they were entitled to pure water, however, even if they have not the soil. Mr.-Stout '. If they grant that their rights are not so large, that admission is useful to the defendants. For as it was held in Lord v. The Commissioners of Sydney, the question becomes what were the surrounding' circumstances, and had the Crown the need of the water ? Now the circumstances here are that Acts were not to be affected by The Otago Waste Lands Act, 1866, and all the rights except as licensees the plaintiffs claim under that Act. It could not be said then, reading the provisions of the Goldfields Acts, that the water was of no use to the Crown, as the Crown was by another - statute expressly . creating rights to the water for mining- purposes. The common law of England was not, therefore, applicable ■ to the colony—so far as riparian rights claimed were concerned. Section 122 of the Otago Waste Lands, 1866, said “ except where expressly provided to the contrary, nothing in the Act shall be construed to repeal, alter, or affect the provisions 1 ... . of any Act passed or to be phased, iu providing for the management of goldfields.”. It was under this Act the plaintiffs, got their rights, and their rights must be subject to those of the defendants as they derived title through the Goldfields Act. Various cases in Victoria treated miners as tenants of the Crown. Attorney-General vV Geej 2 W. W. Eq. 122; Mulcahy and Humphries v. Walhalla Gold Mining Company, 2 A. J. E. 93. Then further the Legislature has never contemplated that the common law as to riparian rights existed in New Zealand. See The Highways and Watercourses.. Diversion Act, 1858. A street or creek: may be' diverted or stopped up without compensation. - , Mr. Justice ’ Richmond : Can we take an opinion implied by the action of, the Legislature to be law ? . ' : Mr. Stout submitted that there’ was more than an implication. Superintendents and Provincial ’Councils i were clothed with the power of diverting streams, and once diverted the bed might be Crown-granted. How could the Queen Crown-grant the bed if it had been originally impliedly granted ? The next point was that he understood that it had been contended there could be : no easement to foul a stream. Now, there were many cases to the contrary of such a proposition. Many cases had arisen in Cornwall as to the right of the tin bounders. See Gaved v. Martyn, 19 C. 8., N.S. 754 ; Carlyn v. Lovering and another, 1 B. and N. 784 Rogers v, Erenton, 10 Q. 8., 26. (Mr. Stout read portions of the judgments.) These cases showed that parties could by prescription acquire the right to foul streams. And if by prescription they could by grant. See also Gale on Easements, p. 202. The section 122 of the Waste Lands Act of 1866 then became of importance. Mr. Justice Jolmston : Your argument leads Up to this, that the Legislature, intended the mining interest to be paramount to the pastoral. ■ Mr. Stout submitted that was the clear intention of the Laud Act and the Goldfields Act. Mr. Justice Chapman: You would soon abolish the runholder altogether. Mr. Stout’: .Not altogether—only if they came into conflict with the miner. 'the plaintiff had purchased with full notice of the rights of the miner and of the creation of the easement, and hence were ’ bound by it. Robinson v. Blundell, Mac. - Bepts. 692, 693. His [Honor Mr. Justice Chapman had called the right to a water-race an- irrevocable easement, and that the Crown even could not get rid of the miners’ rights except by a process in Court. _ (The judgment was read.) Hero then was an irrevocable easement, and if the Crown was bound by.it, so also was the Crown tenant and the freeholder. There is a difference between the exercise of statutory powers and

common law rights. See Justice Mellor’s judgment in Bunn v. Birmingham Canal Company. , . Mr. Stout then commented on various sections of the Goldfields Act, arguing that the rja-ht to pollute was expressly given. °Mr. Justice Richmond : Does the term “ Crown lands ” mean lands leased to pastoral tenants ? Mr Stout : It is submitted it does—sections 10, 15, 16, -19, 21, etc., of the Goldfields Act. As to the mining being carried on without fouling. The case says it is “ practically impossible ” to do so, and that means it would not be mining if it were earned on without fouling. Mr. Stout referred to the regulations, and commented on some of the positions taken up. by the Attorney-General and Mr. Smith. The Attorney-General; The distinction between mining by the Crown on the land of one person to get gold, and mining on the land of one and then taking wood, for example, to mine from the land of another, has not been kept in view. Here the defendants might foul water on the land on which they had mined, and yet have no right to foul the water so as to injure others; besides, the prerogatival rights still remain in the Queen. Mr. Justice Johnston : What do you understand hy the words in section 21, “ which Her Majesty could lawfully use.” The Attorney-General ‘ That does not aid the defendants. This is not an easement of necessity. It is a non-contiuuous easement and not like an artificial channel. Mr. Justice Johnston : Non constat that a dye works will always continue. How canyon draw a distinction of that kind ? The Attorney-General : This is not like a rio-ht of way. It is not an easement of necessity, and it cannot therefore bo implied as against the grantee without express words. Gale on Easements, p. 95; sections 87 and 125 of the Waste Lands Act of 1866, and section 2-1 of the Goldfields Act, 1866 were referred to. Mr. Justice Richmond ; Is a pastoral tenant's run “ private lands ?” If not, a miner can turn np and destroy his herbage. Why should the Legislature have made grass more sacred than water : there may be utter spoliation of a whole valley, and yet the water flowing through the valley is sacred. The Attorney-General : The runholders have never contested the right of the miner to dig on a run, and possibly they may not have such a right. The proper construction of section 21 would leave runholders the streams. Then as to authorities cited as to rights conferred hy statute—these in plaintiffs’ favor. They show that the right to take water will:not include right to foul. Stockport Water Works Company v. Rotter, 3 B. and C. Mr. Justice Richmond : Surely even foul water sent down a creek may be better than none at all. The Attorney-General i As to acquiesence, no need to further allude to that subject. And as to damages, the defendants were tort feasors. ' Mr. Justice Chapman : But they were not tort feasors in the sense that each is liable for all the acts of the other miners. Mr. Justice Johnston : Certainly not. The Attorney-General ; Perhaps not. Mr. Justice Johnston: Can we answer question ten any way but by saying nominal damages, unless damage done is exclusively caused by the defendants. . . _ The Attorney-General: We are entitled to more than nominal damages. Mr. Justice Johnston. : Well, you cannot get prospective damages for non constat that they may stop working. Mr. Justice Chapman : The question would be, what can you prove against these particular men. The Attorney-General : We are, we submit, entitled to nominal damages at all events, and also to damages for the interference with our rights, and what the jury can see we have suffered.