WARDEN’S JUDGMENT

Greymouth Evening Star, 19 December 1934, Page 5

WARDEN’S JUDGMENT

BOURKE BROS. V. GOLDEN SANDS. In the Warden’s Court, Greymouth, to-day, Mr H. Morgan road his reserved judgment in the case of Bourke Bros. v. Golden Sands, Ltd. The plaintiffs, James Leonard Bourke, of Boddytown, John William Bourke, of Cobden, and Clarence Bourke,- of Cobden, were represented by Mr F. A. Kitchingham. Plaintiffs alleged that, as the result of the gold-mining operations of Golden Sands, Ltd., the water of a creek which irrigated their farming land at Barrytown, had been cut off. As a. result, they claimed: (a) The sum of £2OO damages; (b) An injunction to restrain the defendant company from carrying on mining operations so as to carry away the natural support for the creek, or to interfere with the flow of water in the creek; (c) An order that the defendant Company do all such acts and things as may be necessary to restore the creek to a proper confined channel, and with such a non-porous bed as existed prior to the date when the defendant company first interfered with the creek, so that the quantity of water hitherto flowing to Section 2, shall flow' and with the same degree 6f regularity, and with no more loss by percolation (if there would have been 4 any) than hitherto. The defendant Company was represented by Mr T. F. Brosnan. The Warden’s judgment was as follows:. — The first question to decide is whether the “unnamed creek” the subject of these proceedings is a natural water course. A water course has been defined by Lord Tenterden C.J., as water flowing in a channel between banks more or less defined. See Coulson and Forbes p. 74. It has also been held that a p. 174. It has also been held that a stream which issued from a swamp was a continuation of the stream which entered the swamp. Mansford v. Ross and Glendinning 1887. v. 5., N.Z.L.R. 33. The creek in question rises in a spring under the hills. The evidence to my mind is conclusive that within living memory, prior to 1888, when the freehold was granted to plaintiff’s grandfather anti up to the time . the water was turned into the deviation granted in 1915 to McKay, the creek flowed in its original defined channel onto and through plaintiff's freehold Section 2. through the channel termed the “bywash” which emptied into Fagin’s Creek' and thence flowed to the sea. There is no evidence that prior to 1915 any part of the creek outside Section 2 was artificial construction. The evidence of Edward Bourke, who was born on this-land between 1860 and 1870 and grew up beside the stream, and of John Andrew Poschich, who was born in the district and lived there for about 60 years, clearly establishes that when they first knew it the creek was a natural stream. .

From present appearances it would seem as if part of the water upon entering the freehold probably spread out to form a swamp area but there is no doubt that if that were the position originally water must have flowed from the swamp by a more or less defined channel across the section until it entered the well defined channel termed the “by-wasli.” I am satisfied that the creek was a natural stream or watercourse and the point is that as such it flowed on to tfnd 1 through Section 2 and conferred riparian rights on the owner of the land. The riparian owner had the right to use the water for all ordinary purposes and for extraordinary purposes as well because apparently there was no other riparian owners above or below him, Halsbury Vol 38, Paras. 841 and 843. } The water was used for domestic purposes, dairying, and supplying cattle. The facts that a channel through the present swamp ■area has been kept defined by cleaning it out and banking up, and. that some of the water had been deviated near the “by-wash” and led to and used for mining on the beach do not, I think, affect the nature of the stream nor affect nor abridge the riparian rights. These rights were recognised by the Warden and protected when granting the mining claim to McKay in 1309 (application 72/08). McKay also recognised the rights in connection with his license to divert the stream by connecting up the diversion with the original channel on to Section 2. I do not think that such diversion of the original stream granted by the Warden under his powers given by the Mining Act can alter the character of the stream and make of it an artificial stream, i or affect the .riparian rights. This deviation commences some distance down the original stream from the source and joins up again with the original channel outside plaintiff’s land. The channel is more natural than artificial deviation, and, I think, must under the circumstances be deemed wholly natural. The artificial deviation in any event would not affect the riparian rights because of its permanent character. Halsbury Vol. 28. para. 838. The defendant Company, after warning given by plaintiffs, has, in the working of its special alluvial claim, sluiced away the stream outside plaintiff’s land and thereby cut off the flow of water on to such land and deprived the plaintiffs of the use of water, for domestic purposes and watering of stock, and its action has given rise to these proceedings. The law is quite clear that such an interference is actionable if there are riparian rights and same have been detrimentally affected. A riparian owner is entitled to have the water flow on to his land and to use it subject to the rights of other riparian proprietors. The company has no riparian rights under its claim license. The contention of the de- ■ fence that the plaintiffs have no riparian rights because by Section 139 (c) of the Mining’ Act, 1926, all riparian rights are reserved to the Crown in respect of land in a mining district alienated after Ist. February, 1899, and it has not been proved that riparian rights existed in respect to this land prior to that date, must fail. The evidence of Edward Bourke arid John Andrew Poschich clearly establishes that the creek was a. natural stream before that date. The title to this land was granted on the Ist. November, 1888, under the Goldfields Act, 1866, Amendment Act, 1873, so that riparian rights attached to the land. The only abridgement of these rights in the Mining Act is the right of miners to take and use the Water for mining purposes and to discharge sludge into the stream if it had been proclaimed a sludge channel (Section 139 (a) of the Mining Act and Boston and ors. v. How? and ors 2. N.Z. Jurist 97). Section 139 (b) does not apply because the title must have been granted und(*r the Goldfields Amendment Act, 1873, pursuant to a prior lease. The defendant company has a license for a water

race out of this stream, but the complaint is not against it for use of water under that license but for sluicing the stream away under its claim license. I can find nothing in the Mining Act, nor have I been referred to any authority, giving the right to a miner in working a claim to sluice away a stream and entirely deprive a riparian owner on such stream of water from it. Even a. license in respect of water does not confer any right to the use of. the water' as against any person requiring a reasonable quantity for his own domestic use. Section 121 (d) of the Mining Act. The plaintiffs require water from this stream for domestic purposes and are entitled to it. “Domestic purposes” include dripking and culinary purposes, cleansing, washing, feeding and supplying the ordinary quantity of cattle on the land. Halsbury Vol. 38. para. 841. There is a hut on this section, also cattle. It makes no difference to the enjoyment of the riparian rights that water may be obtained by digging a. well as from an adjoining owner’s land. Water cannot be, lawfully diverted from a natural stream by any one to the injury of the riparian proprietors. Duddin v. Clutton Union cited in Coulson and Forbes at page 76. On the same page, is cited, Mostyn v. Atherton in which it was held tliat the principle laid down in Duddin v. Clutton Union was not affected by the fact

‘ nut. ,ihere was an artiu channel for a short distance. That principle must, 1 think, apply as well in this case even though the part of the stream cut off is part of McKay’s diversion.

I can find no facts sufficient to establish acquiescence by plaintiffs in defendant’s action, no abandonment by plaintiffs of their riparian rights. My conclusion is that plaintiffs are entitled to have the water in this stream flow on to their land for domestic purposes, and that defendant company is liable in tort. On consideration of the authorities, I think the proper remedy is damages and an injunction. Defendant company’s claim area includes a further stretch of the stream and if not stopped will no doubt sluice more of it away. It is not impossible to connect the two ends of the stream at the sluiced cuts. J. M. Dennehy, manager of the company, says this can be done with pipes at a cost of £lO. \

Damages must, I think, lie only nominal. The deprivation of water has been of short duration and has so far only caused inconvenience to the hut dwellers.

There will be judgment for plaintiffs for £2 damages and an injunction restraining the defendant company or other the registered proprietor of the special alluvial claim No. 48/32, and its agents and servants from carrying on mining - operations so as to carry away the natural support for the -creek, the subject of these proceedings or to interfere with the flow of water in the said creek, and an order that the defendant company do all such acts and things as may be necessary to restore the said creek to a proper confined channel, •and with such a non-porous bed as existed prior to the date when defendant first interfered, with such creek so that the quantity of water hitherto flowing in such creek to Section 2 of the plaintiffs shall henceforth flow and with the same degree of Regularity and with no more loss by percolation than hitherto. Prior" to the reading of the judgment, Mr Kitchingham asked that its entry be deferred, in order to give either party, if they desired, time to consider the question of an appeal. The Warden agreed to defer entering the judgment, until January 21. Costs are to be fixed later.