SUPREME COURT—IN BANCO.

New Zealand Times, Volume XXXII, Issue 5085, 11 July 1877, Page 2

SUPREME COURT—IN BANCO.

Tuesday, July 10.

(Before his Honor the Chief Justice and his Honor Mr. Justice Richmond.)

HAIR V. THE BOROUGH COUNCIL OP WANGANUI.

The Chief Justice delivered judgment in this case as follows :

This is a motion to dissolve an injunction granted by Mr. Justice Richmond ex parte on the 7th April last. The plaintiff claims to he the owner of a small lake, known as Virginia Water, situate near the town of Wanganui, from which the defendants have for some time past been drawing a supply of water for the town. The level of the lake having been lowered by the operations of the defendants, they have proposed to restore it, and to increase the supply of water, by leading into Virginia Water the waters of another pond or lake at a higher level, called Westmere; and they have begun to lay pipes for the purpose between the two lakes. The injunction restrains the defendants from bringing the waters of Westmere into Virginia Water. The motion was argued before Mr. Justice Richmond and myself on Wednesday and Thursday, the 27th and 28th ult., and the Court took time to consider its judgment on one or two points. The plaintiff assorts a right to the whole bed of Virginia Water, with, perhaps, the exception of a very small portion included in the old road reserve known as the Waitotara line. The plaintiff’s title to some part of the lake bed is admitted by the defendants. A public road runs for a. short distance along the margin. The defendants

claim to be entitled under the powers of the Municipal Corporation Waterworks Act, 1872, to ' draw water from the lake forthe supply of Wanganui, and being so, as they say, entitled, it was argued before us, that they were further entitled to maintain the proper water-level by bringing in water from other sources. This contention was founded upon the Bth section of the Act of 1872. It is not material to consider whether that enactment could have been capable of the meaning which, on behalf of the defendants, it was attempted to put upon it, because it turns out that the whole Act is repealed by the Municipal Corporations Act, 1876, as from the Ist of January last. The question of legal right presents, therefore, no difficulty whatever ; because even if it could be established that the Corporation acquired the exclusive property in the waters of Virginia Water (though it is impossible on the evidence to come to any such conclusion), it is still apparent that the right to these waters does not include, or carry with it, the entirely different right to use the bed of the lake as a reservoir for the waters of Westmere. Upon one point there was a serious difference between the case made for maintaining the injunction, and that on which it was in the first instance granted. It was originally stated that the waters of Westmere were less pure than those of Virginia Water. This ground is now abandoned. The Court has taken time to consider whether having regard to the public interests involved, and to the nature and extent of the apprehended injury, and having regard especially to the variation from the case originally made by the plaintiff, the injunction ought to be continued until the hearing. There are several grounds for the interference of a Court of Equity to restrain the apprehended infringement of a legal right in a case like the present. The aggressors are a corporate body, acting under color of a compulsory statutory power to enter upon and take lands, and to acquire property in streams, springs, and running waters. It is well settled that the proceedings of such bodies, when of an illegal character, or of doubtful legality, will be restrained by injunction; and the Court has not only jurisdiction to interfere, but is almost bound to do so. (See the cases collected by Mr. Kerr in his work on Injunctions, pp. 295, 1867.) In such cases, if there be any doubt, the construction will always be against the corporate body. (Simpson v. South Staffordshire Waterworks Company, 34 Law Journal, ch. 380.) And it is altogether in favor of such interference that the party whose rights are menaced is a private individual ; for if the complainant were a public body, the Court might balance one kind of public convenience against another. But even a minute infringement of the legal rights of an individual will not be allowed. (Wandsworth Board of Works v. South-Western Hallway Company, 31 Law Journal, ch. 855.) Nor is the Court moved by any argument of expediency grounded on the magnitude of the public interest represented by the defendant Corporation. “It is a matter of almost absolute indifference,” says V. 0. Sir W. Page "Wood, in Attorney-General v. Council of Borough of Birmingham, 4, Kay and J. (judgme t), p.p. 589, 541, “whether the decision will affect a population of 250,000, or a single individual carrying on a manufactory for Ms own benefit. .... If they cannot drain Birmingham without invading the plaintiff’s private rights, they must_ apply to Parliament for power to invade his rights.” There exists also in the present case another well-known ground for the interference of an English Court of Equity, viz., thatthe plaintiff’s right can (or rather, under the old practice, could) only be asserted at law by an indefinite series of actions—see the judgment of the ViceChancellor in the last cited case. The same ground exactly cannot be taken in this colony, because the Supreme Court unites to the powers of a Court of Equity those of a Court of Law, and as a part of the latter jurisdiction possesses the power (under R.G. 447, 448, and 449, taken from the Common Law Procedure Act 1854) of inhibiting the repetition of an injury for which an action of trespass has been brought. Nevertheless, we are of opinion that where the legal right is indisputable th“ piA.i-------,;,7 „ u j.nc not to bo obliged to commence an action of trespass, but may, upon a proper occasion, at once invoke the equitable jurisdiction of the Court without awaiting the commission of an actual trespass. In fact the plaintiff has done better to apply before the completion of the works of which she complains, inasmuch as parties who stand by and see moneys expended in the construction of public works are in peculiar danger of losing their right to call upon the Court for its summary interference. Then, has the plaintiff disentitled herself to relief bv departing from her first representation respecting the quality of the Westmere water ? Whether pure or impure she has, it is plain, a legal right to object to its being poured on to -her land; hut if there had been-any intentional concealment from the Judge who had granted the ex parte application that would be 1 a reason for discontinuing the injunction. There is, however, no such feature in the case. The quality e£ water can often be determined only by nice scientific experiment. It seems that further information upon the subject has been obtained ; but it is not asserted by the defendants that the Court has been intentionally deceived. Some little stress, however, was laid upon the allegation that the affidavits in support of the injunction did not disclose that the defendants were rightfully using the waters of Virginia Water for the supply of the town. But the defendants have not now shown that they possess any such right ; and even hail they done so, that would not affect the present question. On the whole we are of opinion that this motion must be refused. The plaintiff’s costs to be costs in the cause. DIVORCE JURISDICTION”. In the ease Kendall v. Kendall, an application in support of a petition for alimony, Mr. Travers stated that the parties were likely to come to some agreement, and he therefore asked that the case shoald be postponed. ■ The postponement was granted.