IMPORTANT RIPARIAN RIGHTS JUDGMENT.

Evening Post, Volume LXIX, Issue 48, 27 February 1905, Page 6

IMPORTANT RIPARIAN RIGHTS JUDGMENT.

lIUTT COMPENSATION CLAIM. DECISION OK THE SUPREME COURT. Judgment was uiven "'is moininj,' by the Supreme Coin t — the Chief Just he (Sir Hubert Stout), and Justices Dcnniston and Ci.oper — in the questions of law re.»>eived in eouuei.tioii with tho healing of t he com|iciiH.iliiiii ca.se, Eli/:ib»th Jane Kindlon (iliiimanl) ;unl the llutt River Hoard UcKpomlenl). A special ease, for the. Supienii: tJouit whs stated by the Chief Justice as President of the Compensation Ci.urt, before which the claim came. The Compensation Court wn« constituted under the Puhlie Works Act, 1891, to determine two claims by claimant, (1) in renpeet of the taking of 8 aeron 3 roods 9 perches of land, and (2) for 20,000 yds of earth, gravel, sand, or shingle (iiken and removed by Iho Hoard from (he ."nine land before the (aleing thereof by lespondent. Claimant's total claim was for 1322,000. It was proved before tin; Compensation Court that the laud taken by the Hoard was situated betwivn tiio actual waterway of the llutt River when at its normal condition, and the pa.sdiru hind of claimant. Thu special case staled a number of quest inns. Thetie quehdonn, and the answers given to them by tho Supieme Couit, as slated iv its judgment this nioining, are as follows : — Questions which refer to what is the bed of (he livei : (1) Is tho bed' of the Hull Hiver (,he actual waterway for the time being? •— Answer : ]So. (2) Or is it the channel between the existing defined banks over which tho river Hows in Hood time — Answer. As tho water of the river in ordinary rainy seasons Hows from bank to bunk, the bed of tho liver extends from bank to bank. Question 3 becomes unnecessary to answer. 4. Does such bed extend to all land over which the river Hows in Hood whether within the defined banks or not ! — Tho l)ed of the river extends only from Imnk to bank. Questions referring to tho lcspondenl's right to tho bed of the river : (5) lh tho bed of tho river as defined by the hu«L answer vested in or placed iv the control of the respondents for'ull puiposes of (ho River Hoaids Ac(, lUBI, and its amendments? Answer: The bed of the river as defined by t lie answers to questions 1 to 4 inclusive is, by the operation of tho Wellington Hivciti Act, 1876, and the River Hoards Act, 1884, vested in Iho respondent Houid for all purposes of the River Jioiuds Act, 1884 and its amendments, and the properly which the said Hocird has in Minh river bed and tho right to leinovc shingle or gravel llieiefroiu is limited to mu'li piopiMly and right only as is necussaiy for tho canying out by' iho Ho.ird of its duties and jurisdiction as a rner bo.iul having the control and management of (he liver under the said Act. In uiimht to questions 6 and 7, dealing with claimanf« right lo remove shingle, the Supreme Couit finds: Tho management and coutiol of the river being under the jurisdiction of the Hoard, and the l>ed of the liver being for that purpoHu vested in thu Hourd, tho claimant ha.s no light, without the consent of tho Houid, (o icniovo shingle fiom the bed of the liver. Such leave should not be gi anted if in opinion of the Bon id such removal or the method of xuih lemoval will be injunoiis to the course which the Honrd desiies the river to take, or to any possible f ut me operations of the Htm id. Question No. 8: Have the respondents thu light lo icmove shingle from (he bed of the uver for the puiposc of straightening and improving the course of such river without being liublo to pay compensation theicfor (o clnimunl? Answer: The Hull livei being a river under the management and contiol of the lespoiuleut Houid, Mich Hoard can remove fiom the bed of th« river any shingle, necessary for the purpose of 'constructing piotective noiks ur Miaightening or controlling or iinpioving the course of the water llowiiig along tH bed of the river, and is not liable lo p«v (ompensjvlion for shingle taken foi muli purposes. Qtie.-tioiix 9 and 10 ate answered as follows: All shingle which is from time lo time, brought down by the liver iir.d deposited in tho bed of the river opposite thu- claimant" s land becomes part of the lied of (he river, and the Hoard bus the siuno property and light in finch shingle as in any other part of the bud of the river. Shinglu depusiu'd upon tho claimant's laud outside the bed of tho liver as defined iv the answeis to questions 1 to 4 belongs to the claimant, but (he claimant's light docs not extend to shingle which is or may Iw doiuiMted in Iho bed nf Iho river as above defined Questions 12 and 13 lefer to a point of estoppel raised by Mr. Trcadwell for claimant, and thu Supremo Court holds that there i* no estoppel ; also that if it clearly appeals at the liearing of tho case in tho Compensation Com I that the comphi-iuiiut was not, at tho time the land was taken, tho owner of it or of any interest in it, then (bo Court ought not to consider the claimant's claim. Upon the. question of what pnnciplo the Compensation Court ought to pro ceed upon in assessing Iho compensation, (he Supreme Court finds: "We are of opinion that taking the present intome and capitalising it is not a mode, of arriving at tho valun of the land that should bo adopted by the Compensation Court. It is no doubt a test, and a very va-lu-ible, test, in arriving at the compensation that is (o bu awarded. '. . . As in our opinion the right of property in the. bed ol v river vested iv a River Hoard is a limited nghl only, and at,, apparently, the Hoard haa taken what right in tho bod, subject to this limited right of property, the clnyiiiuit may at tho hearing provo to have possossud. the Compensation Court should if such proof be given assess tho value of such right. Tho value, of this right must, htiweyei, bo computed on (bo basis of its being controlled and limited by the very extensive powers of the Hoard, which we have previously stated, including the ricrlit -of the Himid to restrain tho riparian proprietoi, should it think such a course advisable, from lemoving shingle from tho river bed." The Supreme Court's judgment was given by the Chief Justice. Messrs.' Troadwo'll and Wilford appeared for claimant, I)i. Fiiullny and Mr. Huiiiiy foi respondents. Mr. Trcadwetl thought the Court had been acting under a misconception of fact, in that the River Hoard lapsed be twoou 1884 and 1899, while the Court appeared to urguo on tho understanding that Ibo present Honrd sin ceoded the older one. This lucl was not stated at the hearing. Tho Chief Justice did not think this niattrr affected tho judgment. Mr. Justice Cooper: We could givo judgment only on (no facts staled before us The Chief Justice obsened that, us one of the Judges was not present, it would not be proper to argue tho mailer. Mr. Treiidwell : I thought it proper lo mention it. The Chief Justice : Yes. Tho assessing of costs was left to tho Compensation Court.

Tlip Wellington Uraneh of the Sociallit I'arly held the first of a series of open air meetings lit [Vtom 1 on Saturday evening. Mr. lion;* was the speaker, and look for Im subject "Labour and I'olitux," the keynote of which was "independence." There was an appreciative audience. Mr. Long will be the bpeakcr uexl Saturday.