COURT OF APPEAL.

New Zealand Times, Volume XXX, Issue 4412, 11 May 1875, Page 3

COURT OF APPEAL.

♦ Monday. May 10. (Before Mr. Justice Johnston and Mr. Justice Gillies) BOSTON V. HOWE. In this important case, which decides the question whether or not gold-miners 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 tho close of the sittings of the Court of Appeal in November Inst, 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 duties in their respective judicial districts. The Chief Justice had left before the commencement of the argument, Mr. Justice Gresaon was obliged to retire shortly after its commencement: but the Court, consisting of Mr. Justice Richmond, Mr. Justice Chapman and myself, were desired by tho 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 us 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 was agreed 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 Court, including the departure of Mr. Justice Eichmond for England, have rendered it impossible for the Judges who heard tho 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 he 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 he forwarded to me before his retirement from the Bench, and in which I concur; and then to give answers to the questions proposed, in which Mr. Justice Chapman concurs, and to which Mr. Justice Eichmond had substantially assented. [His Honor read the case 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 polluting or fouling certain non-navigable streams or watercourses running through, or abutting upon, the land of the plaintiffs, who are lessees of certain 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 iu tho 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, IS6C, read with the Otago Waste lands Act, 1566, the common law right of action was not 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 enforced against miners, some mining operations, in some mining localities, could not be carried on ; the cost being such (meaning the cost of. diverting the tailings or " sludge" into harmless channels) as to put a stop to the enterpiiso. Assuming that such might be the result in some cases, it furnishes a good and valid reason for legislative 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 well-known rule is that colonies founded by settlement take the common and statute law of England, "so far as the same is suitable or applicable to their circumstances and condition." Now, whenever the question of suitableness or unsuitableness arises, it lias, so far as I have been able to discover, turned upon the construction of some statute or class of statutes, and it seems always to have been assumed that the common law passes to the colonies without abridgment or exception. Mr. Charles Clarke, in his "Summary of Colonial Law," says: "The common law of England is the common law of the Plantations, and al Jstatutes in afllrmance of the common law, passed in England, antecedent to the settlement of the colony, are in force In that colony." (Page 8. note 4.) Blackstone (1 Com. 108) gives as instances "the general rules of inheritance and the protection from personal injuries." The law of primogeniture, for instance, has always been accepted and enforced in tho colonies (except, of course, where the French law or the Dutch law prevails), without question ; although it is, in tho opinion of many jurists and statesmen, but little suited to the circumstances and condition of a colony. The instances of laws which do not pass help us to ascertain such as do pass. In the Attorney-General v. Stewart (2 Meriv. 143), it was decided that the Mortmain Acts do not apply to colonies, and the bankrupt laws, the poor laws, and the game laws were also referred to as inapplicable. In Dawes v. Painter (Freeman 176), it. was said that " penal statutes never apply to the colonies," meaning not the criminal law, but statutory enactments enforced by penalties. Blackstone also mentions "laws of police and revenuo, such especially as are enforced by penalties." All these are statute laws. Tho application of sotno beneficial statutes is prevented by the want of some machinery necessary to give them effect. WltUaker v. Hume (1 De Gf. McN. and G. 603.) Taking all the cases to be found in tho Eeports, they are too few in number to establish any exhaustive general rules as to suitableness or applicability of English statutes to tho colonies; and, therefore*, "what shall bo admitted and what rejected must, in cases of dispute, be decided in tho first instance by the provincial (i.e. colonial) judicature, subject to the revision and control of the King in Council" (1 81. Com. 108 V There is nothing in this case to show that the defendants had acquired any prescriptive right to foul the water of the streams in question, beforo the plaintiffs had acquired their rights as riparian proprietors; on tho contrary, the eighth paragraph of the case admits tho priority of tho plaintiffs. They were licensees under Acts in force before 1806. They then, under the Otago Waste Lands Act, 1860, surrendered their licenses, and bocamo lessees. Subsequently they acquired the freehold of certain portions of tho 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 tha eighth paragraph to establish priority over lands sufficient to sustain tho right of action. Moreover, a change in the tenure, enlarging the plaintiffs' estate, would neither enlarge nor abridge their rights as riparian proprietors; and this point will sink into comparative unimportance if it should turn out upon examination that tho Goldffelds Act does not extond to the establishment of a right to foul the water of tho streams. Thus we are remitted to a consideration of the extent of tho rights of tho defendants, as miners, under the Goldflclds Act, 1808. The section which defines and enumerates the minor's rights and privileges, by virtue of his " miner's right," is tho sixth, which enacts that " every miner's right . . . shall authorise the holder (amongst other things) to take or divert water from any spring lako pool or stream situate (sic) or flowing through or adjoining Crown lands, ond to uso such water for mining for gold." Nothing is expressed as to the destination of such water after it has been bo taken, diverted, and used, and by such uses fouled. On the one hand, there is no expression as to allowing such wator to find its way back to the streams in a fouled condition ; on the other hand, there is no express duty cast upon the miner to avoid or prevent such fouling. It seems, therefore, to have been left advisedly to tho operation of tho ordinary rule of law, which distinguishes betweon tho use and tho abuso of a right, by requiring every man so to use his own rights, howsoever acquired, as not to injure those of his neighbor. ("Broome's Logal Maxims." Sic vlert tWO, ct'C.) Now, discarding all questions of priority as to tho defendants' right to take, divert, and use tho water of all tho streams : and assuming that their right is, so far, absolute and indefeasible, upon what prlnciplo.-or under color of what expression in tho Goldfields Act can this right bo extended to iustlfy tho defendants, either in casting tho fouled wator back Into any of the streams, or in abandoning it to And its way thither? I can find none: and there are cases In Victoria which are expressly against such an extension of tho right conferred. Tho mining Acts of Victoria down to the Act of 1805, havo given to tho miners (holders of miners' rights) powers to take, divert, and uso the water of streams, quite as oxtonsivo as those conferred by our Goldfields Act, 1800. Indeed, tho language of our Act is identical with that of Victoria on this subject, as will presently bo seen. In tho case of The BonsliMW Company v. The Prince of Wales Company, tho point was expressly decided against tho defendants ; but, unfortunately, wo have only a short ftb-

stract in " Kerfcrd and Box's Digest (p. 530), from a report of the judgment in a newspaper. This brief abstract is as follows:-" To permit the escape of sludge was to violate the principle of: law laid down in Fletcher v. Rylands (Law E., 3 E and Ir App. 330) namely, that a person who uses, or exercises control over anything, or permits the existence of any nuisance, is bound (for he has no option) to adopt such mpvnres as will insure their not being injurious to else "The case of Campbell v. Ah Clwng.d Tustr Jur. 35), cited by the learned AttorneyGeneral, is expressly in point, inasmuch as it was decided upon the Victorian Mining Act, 1805, from which, as will be seen, the very words of our Act arc borrowed. The action was brought against the defendants, who were miners, for fouling or polluting a stream which, after flowing through Crown lands, occupied by tho defendants for mining purposes flowed through the land of the, plaintiffs. The defendants pleaded that they were in lawful occupation of certain Crown lands, on which they were mining for gold by virtue of miners' rights; that there was a certain stream which flowed through adjoining Crown lands, which said stream afterwards flowed through the land of tho plaintiffs ; that it was necessary for the defendants to use. and they did use, the water of the said stream for mining purposes, as they lawfully might; that the said water so used becinie necessarily and unavoidably mixed and impregnated with earthy substances, and the defendants in the course of their said mining operations let off the water, so mixed and impregnated, into the sa ! d stream at a point above the land in the declarationmentioned, (doing no unnecessary damage,) as it was lawful for them to do, which were the trespasses complained of. It is stated in " McFarlane's Digest of Mining Cases that this plea was drawn in viewof the mining statute of 1805, which (inter alia) provides that the holder of a miner's light may " take and divert water from any spring, lake, pool, or stream situate (sic) flowing through or adjoining Crown lands, and use such water for mining for gold." The plea was demurred to, and the Court held it bad, on the ground that it was incumbent on the defendants to do the acts, that is, to take and divert the fvater of the said streams, and use the same in such a manner as not to injure the plaintiffs. Fletcher v. RylamU, already referred to, was cited. Mr. Macassey's objection to this case is that it is of weak authority, because the defendants did not appear. Still, it is founded on a well established principle, namely, that which was acted upon in Fletcher »>. Sylandf, and in the Bonshaw Company «. the Prince of Wales Company. The most scrupulous examination of the provisions of the Goldflelds Act, IS6O, discloses no ground for extending the right to take, divert, and use the water of streams, to a right to foul or pollute the same to the injury of others. The right to mine for gold, for instance, must in its exercise necessarily foul the water used ; but the rule referred to compels the miner to divert it into harmless channels. Again, it was said : If fouling had not been contemplated as an incident of mining there would have been a compensation clause, as in other cases. The answer is that compensation is only given for injuries authorised, and, therefore, the absenco of a compensation clause, if it justify any inference, tends to show that fouling to the injury of others was not contemplated: indeed, it could hardly have been contemplated or anticipated that the holders of miners' rights would exercise the rights confered by the statute in a manner not warranted by law. The case raises the question of acquiescence in the eleventh paragraph. It may be assumed that the expenditure of the defendants took place under the eyes of the plaintiffs. But this expenditure was in pursuance of rights conferred by the Goldflelds Act, which the plaintiffs could not resist. They were, therefore, quiescent as to that large expenditure. .But quiescence is not merely acquiescence ; and the plaintiffs, while that expenditure was going on, could not foresee and had no right to presume, that the defendants would exercise their rights otherwise than lawfully and properly. The plaintiffs could not object to the "mining for gold." nor to the taking, diverting, and using tho water of streams within the meanintr of the statute, and that is all that they can be said to have acquiesced in. It seems impossible to suggest any measure of damages under aU the circumstances disclosed in the case. There are other miners at work upon the streams besides the defendants, and all of them helped in fouling the water, and in allowing it to flow back, tlovf many is not stated. Ne'ther are we informed nf the extent of tho damago computed in money. His Honor continued.

Thus far goes the judgment of Mr. Justice Chapman, in which I fully concur I shall now proceed to answer tho questions put by the case, seriatim, anil state the answers, in which Mr. .Tustice Chapman has expressed his concurrence, and which I believe t<» be in consonance with the opinion of Mr. Justice ttichmond. so far as. be had been able to make up his mind before his'departure for Engta..d. 1. To the first question it is answered, .that the goldflelds'laws of the colony haveabridged the common law rights of riparian proprietors (meaning thereby proprietors or lawful occupiers entitled to the use of the waters of a stream) of lands within the ambit of goldflelds, and have sanctioned the use of natural streams, in a manner which would be actionable in England ;—in so far as the Act of 1806 has empowered the holders of miners' rights to use tho water of streams on private lands (i.e.. lands for which Crown grant titles have been given) subject to certain regulations ; but the power so conferred dors not entitle the miners to return tho water used in a polluted state into such streams. 2. The auriferous deposits belong to her Majesty, subject to the goldflelds' laws of the colony; but her Majesty could not, therefore, be entitled to foul streams beyond the goldflelds to the detriment of grantees of the Crown. In the case of mines, reported in Plowden, it was held that the King ha' the right to cut timber on the freehold of a subject so far as was necessary for working a Royal mine under the land. But it would be going beyond the decision in that case to hold" that the Sovereign would bo entitled to cut timber, if necessary for working the mine, on other closes than that in which the gold was found. A freeholder can maintain an action for' polluting, by gold-mining, a stream flowing past his freeJiold, unless the freehold be within the goldfleld, and the pollution be justified by the regulations made under the Goldflelds Act.

3—4. It seems unnecessary to go into these mictions. The nature and extent nf the interest of the plaintiffs in the land only affect the question of damages. s—B. It appears that the freehold of some of the land was bought before the proclamation of the goldfield ; but the question whether the freehold was bought before or after the proclamation seems unimportant, in the absence of any suggestion of the existence of a prescription for, or grant of, an casement giving a right to foul. 7. There seems to be no real distinction, as regards tho right to pure water, between cases where the land on both sides of the stream belongs to, or i' lawfully occupied by, the same person, and those in which tbe land on the opposite sides is occupied by different per-

8. It would appear that the freehold in the soil of a running stream within the colony is vested, ad aquas, in the riparian proprietor. At all events, he has the right to tho water unpolluted, except in so far as it may have been taken away by Statute.

0. The doctrine of acquiescence cannot apply to tho action of the miners on their own land, or on land not belonging to tho party supposed to acquiesce. A freeholder who looks on without romonstranco at operations bv miners, not on his land, but the effect of whicb will bo detrimental *.to his land, cannot bo taken to have acquiesced in the result of such operations. If a freebolder stood by !and allowel miners to spend money in cutting watercourses and making tailraces on his own land, without statutory sanction, the doctrine of acquiescence might apply. Hut here it would appear that all that the plaintiffs looked on at without remonstrance was the construction" of works which the defendants were entitled to construct under the Act. ....

10. Any unjustified fouling is ground for giving damages, at all events nominal; and it is no bar to tho recovery of damages to show that oven without the pollution caused by the defendants, tho water would have been sufficiently fouled by others to make it useless to the plaintiffs. Crossley v. TAgMowler (L.R. 8. Eq. 279—2 Ch. Ap. 478). Particular combinations of circumstances might suggest particular principles for the assessment of damages, but no abstract general rules can well be laid down on tho subject. If the contribution bv (he defendants to the fouling of tho streams was sufficient to make tho water useless to the plaintiffs, there.seems to be no reason why the defendants should not pay the whole amount of damages actually proved, although other persons might be si.nilarly liable.. It would seem inconsistent, to hold, that although the plaintiffs might recover full damages if the defendants alone had polluted their stream, yet, if twenty other persons had each contributed sufficient pollution to~ render the stream useless, the plaintiffs could only recover nominal damages against tho defendants .'or any one of tho other twenty. In Morris v. Robinson. 3 B. and 0.198, a case of trover, there are dicta of Bayley, J., and Holroyd, J., to the effect that the jury might give small damages on the ground that the plaintiffs might have an action against other parties. But Mr. Mayne, in his treatise on damages p.p. 67 68, suggests that those dicta cannot bo relied upon. He says :—" Every man must pay for the damage caused by his own act, How can this damage bo lessened by tho fact that tho plaintiff might have sued others if ho had chosen ? The law says you may exact satisfaction from any one of tho parties who have injured you. What right have the Judges to say, you shall only get satisfaction by suing all 1 In cases of tort, the law says damages shall not be apportioned among wrongdoers" (citing Memjmealhcr v. Nixan, 8 T.R. 180). And In this case it is to be remembered that the injurious acts of the defendants are distinct from the injurious acts of other miners, although tho ultimate effect is tho polluted condition of the water, attributable to the several acts of each set of miners. Should, therefore., the amount of pollution created by the defendants be sufficient to create the whole damage suffered, it would appear that the plaintiffs ought to recover from the defendants in respect of it. If It could be shown that the amount of pollution by the defendants would probably produce only a part of the whole loss to the plaintiffs, they would not be entitled to rccovor damages in respect of tho whole. If a jury should givo nominal damages, that is. not more than forty shillings, in a case like this, it would havo been proper that tho Judge should certify that the action was brought to try a right other than the mere right to damages. But the parties to the case having agreed that no costs shall be paid on cither side, such certificate will bo unnecessary. 11. If the plaintiffs are entitled to damages tho ordinary rules as to actual and prospective damago will bo applicable according to the nature of their interest in the land. The amount of damages would of course be limited by tho Statute of Limitations; The proper conclusion of the whole case scorns to bo, that on tho facts stated tho plaintiffs are entitled to judgment, at all ovents for nominal damages ; but that if they are prepared to prove before an arbitrator or a jury, actual damage, as indicated above, the judgment ought to be for the plaintiffs, for tho amount found by the arbitrator or jury ; Judgment for the plaintiffs accordingly.