WATER RIGHTS.

Alexandra Herald and Central Otago Gazette, Issue 1211, 10 December 1919, Page 5

WATER RIGHTS.

—■» —Taylor and Others v. J. P, Lane, Suit for Forfeiture.—

—Reset ved Judgment Given.—

The Warden, Mr E. D. Mosley, S.M., delivered his judgment in the suit ftu forfeiture instituted by Messrs Taylor, Duncombe and Iversen, settlers of Earnscleugh, against J. P. Lane.

This was a suit for the forfeiture of water races hold by defendant numbered 982 and 9SO respectively. The grounds of tho suit were largely that the water races had not been used for the purpose granted—mining. The case was heard iu the Alexandra court at the October sitting.

The Warden after reviewing the evidence submitted at the hearing of die ease, expressed himself as ,; being of opinion that forfeiture has been yietirred on the ground that the water races have been entirely unused for their proper purpose and hive been unoccupied and neglected foi a continuous petiod of over one month.'" Tho court was iil>! justified in indicting :t fine in lieu of forfeiture, for " the defendant has during the past two or three years been endeavouring to sell his water rights and has sold his dredge and a quantity of his plant and that he has no genuine intention at present of carrying on mining operations* and that any *' special circumstances," such as he has sought to satisfy me exist do not apply in this case."

•Since the hearing of this *uii, tho Legislature has passed the Mining Act Amendment Act, 1919. Section 5 of that act is as follows :—" Where a suit is for forfeiture of a mining privilege in respect of water, the discretion of the Court to inflict hj fine in lieu of decreeing a forfeiture may be exercise.] without limitation to the existence of special ciicumstanoes in the case, if the Court is satisfied that,' either in the public interest or for other iciisons, it is just and equitable that a fine should be inflicted in lieu of forfeiture." The Court shall have tho extended discretion conferred by this Section in tho determination of suits fot forfeiture' now pending and in which judgment has not been delivered, as well as in suits to be hereafter commenced. The legislature has thus given to the Court a wider discretion than is given by Section 181 of the principal act, and the Court will in the exercise of such discretion usually inflict a line instead of decreeing forfeiture in any case where in the public interest or for other reasons it is just aud equitable for it to do so. Now the defendant has sought to show that (on the happening of certain contingencies) die has agreed to sell the water rights in question to two individuals who have agreed to vest such rights in the Vincent County Council, evidently anticipating the amendment" to the Mining Act and with the object of satisfying mo, that the public would be benefited bv my not decreeing forfeiture. I am not prepared to say whether such contingencies are or are not likely to eventuate, nor am I prepaied to attack much weight to the above mentioned agreements. This is a water right granted foi mining purposes and the defendant has entirely failed to satisfy me that in the public interest or for other reasons it 11 just and equitable that a fiue should bo inflicted in lieu of fofeiture. Tho plaintiffs in pursuance of their rights under the Mining Act, 1908, instituted a suit for forfeiture, and they have in my opinion proved their case and the defendant has failed to show any sufficient reason why forfeiture should not be decreed. Forfeiture is decreed and the licenses for the water vwvi nunnV-ivd 98*2 a and 980 \ are ordered to be cancelled. The defendant is ordered to pay costs. Counsel for the plaintiff Mr 11. Gilkison, for the defendant Mr A. S. Adams.

—Change of Purpose.— The above judgment disposes of the case, application for a change of purpose by J. P. Lane and the Vincent County Council. Objectors to .same being Taylor and others. Costs allowed defendants.