Spoliation of the Tokornairiro River

Bruce Herald, Volume XXX, Issue 3102, 26 September 1899, Page 7

Spoliation of the Tokornairiro River

o Dunn v. Frost and others (Goldbank dredge), and Dunn v. Cameron(Woolshed dredge). — These two cases came before the court on Tuesday in the form of a summons for stay of proceedings ou the ground that the actions should have been brought in the Warden's Court, instead of the. Supreme Court. Mr Sim appeared in support of the summons, aud Mr Woodhouse to oppose. His Honor gave judgment aa follows : — The case depends upon the construction 294 ot the Mining Act. That section ought to be construed strictly in favor ot" the jurisdiction of the Supreme Court. As it ia by that sec'Aon that the Supreme Court is deprived of jurisdiction, the court has to be clearly satisfied that the section gives exclusive jurisdiction to the Warden's Court. In order that this court should be deprived of jurisdiction, it ought to be shown very clearly that the effect of that section is so to deprive it. Tne words cf the section are that tho Warden's Court haa exclusive jurisdiction " subject to the right ot any person to proceed in the Supreme Court when the cause af action t-jßcects tide to land held otherwise than under this act." Here the land was held in fee, and the question is, therefore, whether the cause of action affected the title to this lnnd. The cause of action sot out iv the statement of claim is a continuous injury to the estate in fee simple of tbe defendant by polluting the water, which, as the riparian proprietor, he ie entitled to have in a pure stale. In order to stop thia alleged injury an injunction is claimed. I think that that cause of action does affect the title to the land, for this reason : that in order to get the perpetual iujunciion which is asked, it is necessary for the plaintiff to show what this title really is — to show more than that he is a mere occupier. The court would cerfaiuly not grant a perpetual injunction on the materials in the statement of claim if, instead of there having 1 been an allegation that the plaintiff was seized in fee, there was simply an allegation that he was the occupier. The graotiug of an injunction is in exercise ot a discretion, and in order to enable the court to exercise that discretion it must be made out what tbe real title of the plaintiff to land in resprctof which the injunction isclaimed k. I think, therefore, that the case is within the jurisdiction of the Supreme Court, and that the summons in each case must be dismissed. Summons in each case dismissed ; costs of each summons, £lls; summons adjourned into court and made a court order ; seven days' further time allowed.