The Press. SATURDAY, SEPTEMBER 26, 1863. RIGHTS OF WATER,

Press, Volume III, Issue 283, 26 September 1863, Page 2

The Press. SATURDAY, SEPTEMBER 26, 1863. RIGHTS OF WATER,

A case has been tried in the Supreme Court j during tlie paat week w)uch oiiglit not to he allowed to pass by without the deduction of a I moral which may be exceedingly beneficial for the future. Wβ came to this country some thirteen years ago, in which there oxieted a tabula rasa as regards rights of property, and amongst others, that large class of rights wliich seem to lie in a ! sort of clebatcable land between real and personal estate—rights of way, of water, of light, and so I on. In England such rights hare grown up in thousands of instances and in a variety of ways, from origins which have been lost long since in the mists of time. Here everything may be said to have been absolutely new. The land and all the incidental privileges attaching to its use were vested in the Crown ; and no right of whatever kind eoidd aviso, except from a known and ascertainablc origin. It would seem natural, such being the state of things, that no right could have arisen except out of some legal conditions which in 6O short a time would still be so well known as to be incapable of dispute. The trial in the ease of Archer v. Wilson proves that, from imprudence and a want of proper foresight, difficulties have been created which need liave had no existence whatever. About the year 1855 a man named Ashby built a mill and led water to it from tho river Heathcote, raising the water in the river

bj means of a clam across its bed. He had no right to erect the dam, because the bed and soil of the viver were the property of the Crown. There is probably a road along the banks of the river, but if not, the proprietors of the neighboring land can still have no title to the bed of the stream, because those proprietors possess nothing except what they derive from their grants, and grants convoy to them the land " fronting on the vivcr." Mr. Ashby, we are informed, applied to the Provincial Government of the day for leave to

build the dam, and was informed that, while the Government on the part of the Crown would not. prevent his doing so, it could give liiin no right in the water without a specific Ordinance passed for that purpose. Had Ashiy obtained an Ordinance vesting the right of water in liim, the neighboring jTroprietors would have had due notice of the passing of such an Ordinance, aud would have either come in to oppose the Bill, or have made such terms with Ashby as would have removed all future difficulties out of his path. Ashby, however, built his mill without any right or title whatever to the water, which was to turn it, and so left himself at the mercy of auy persons who might thereafter bo able to show the smallest fractional amount of damage arising from the change in the course of tho water from the state in which

it was when the adjacent rights of property were created. lie had no sooner built it than difficulties with neighbors arose, and for some time he

stared off the evil day by paying a sort of annual hush money to one at loast of his neighbors. Ashby sold his mill to Mr. C. Wilson, and the latter gentleman, after spending large sums to ohsiate the damage supposed to bo done to the neighboring land, is brought into Court and is cast in damages which, though nominal in amount, establish the fact that he has no right to have a dam in the river at all, and is at the mercy of his neighbors. The whole of his valuable property in the mill is at the mercy of any one who may be able to claim the most infinitesimal loss by the

existence of the dam. We are not prepared to say what length of use of the water would, give Mi , . Wilson a right over it"} probably no length of time would operate ac against the Crown, if at any time the Government should choose to remove his dam, and restore the water to the old river bed. However this may be, it is clear that no security can be given for the existence of those valuable estates which depend on a right in the water, unless they are specially created by law. Ie is of the greatest importance to this country that every possible use should be made of its water power. Water power is a source of great wealth, not only to the user but to the country at large; j and the Provincial Council has never been slow to grant facilities for enabling mills to be built under secure titles to tlie use of the water. In Mr. Wilson's case it would be very desirable, even now, if he were to go to the Council for an Ordinance which should establish his exclusive privilege in the water. To such a Bill all the parties coueevnod could be jnadp parties, receiving such eoiuponsatiou for as shoidd induce them to become parties to the Bill. The

question is a public as well as a private one, for it is of great importance to the district that tlie mill in question should "be maintained, and, if possible, even increased in power, by raising (Uβ dam to a greater height.

"We are not sure that the action of the Government at the time the mill waa built was the wisest. We axe not clear that it would oot hare been

wiser in Government at all times to refuse to allow any encroachment upon a stream, the bed of which was still vested in the Crown, until the right to use the water had been formally conveyed by a statute. This might be thought an arbitrary proceeding and obstructive of improvements, but in the long run it would save much litigation and many disputes amongst neighbors. It would prevent uncertain and ill-ascertained rights from springing up, and would provide for a ful* satisfaction of all claims before injury was done.