WAIMUMU TAIL RACE.

Mataura Ensign, Issue 1416, 26 November 1904, Page 3

WAIMUMU TAIL RACE.

ACTION AGAINST DBEDGE j OWNEBS. | At the Gore Warden's Court on Thursday, before Mr G. Cruickshank, Warden, the Mataura Borough Council •sued Charles and Edward Marshall, dredgeowners, to recover £2 damages for depositing tailings in the Waimumu Main Tail Race, or in the alternative for an account to ascertain the amount which plaintiffs are entitled to recover from the defendants foi use and occupation of said race without right, and for an injunction to restrain the defendants' operations prejudicial to the plaintiff's rights or for such farther or other relief as the Court may deem just. Mr Bowler appeared for the Borough Council. Mr Inder for the dredging companies interested, and Messrs Neave and Macassey (Dunedin) for the defendants. Mr Bowler opened the case by reading the particulars of the claim setting out the deed which had been entered into by the Borough Council, land owners, and dredging companies in the Waimumu district, and uie Minister of Mines. He detailed the circumstances aod negotiations leading up to the execution of that deed, which had been signed by the landowners, whose riparian rights were affected including, Charles Marshall one of the defendants. By that deed the Borough Council was empowered to construct a tail race, the freeholders agreeing not to claim compensation. The first estimate of the cost of construction of the race was Xi 50 ) the lowest tender was £ISIS :'-s. tnd the ultimate cost was £2700, nil extras having been agreed to i-y ihc" Minister. The various companies interested had applied to use the race, and had contributed fowards the cost of construction and upkeep of the race which amounted to £l2') a year, and only three companies now remained to contribute towards the upkeep. The defendants had been called upon to apply to use the race, but had not done so, aid though they commenced dredging in •July, 1903, they contributed nothing towards either the cost of construction oi upkeep. The Borough Council had decided to take proceedings against defendants unless they (lid contribute, and in April last defendants had made an olTer. which the Council had agreed to accept. I.lit, acting on legal advice, afterwards rescinded the resolution accepting. Further negotiations followed, but no agreement was come to, and the Council had to come to Court. Counsel understood that one defence relied o» would be that the Wainiumu stream had been proclaimed a sludge channel under section 10S of the Mining Act. It had been proclaimed a sludge channel on September 1902, from a point above when? mining operations commenced, but he contended that the proclamation did not interfere with the Council's right to the tail race, which were acquired prior to the proclamation, the date of the license being August 7, 1902. The defendants were discharging tailings and debris from their dredge "into the stream, and thence into the tail race, thus interfering with the Council's rights in the race, and an injunction was now asked for to prevent th'ir doing so. •J. C. MacGrcgor, Town Clerk, Mataura, said he kept the accounts of the Waimumu Sludge Channel. He books, accounts, and deed between the landowners, tlreilging companies, and Minister of .Mini's. Mr Ncave objected to the deed being put ill. The plaintiffs were there as licensees, the license constituted their title and the complaint wus made under the license. The reasons for granting the license were not now be. fore the Court, and anything that happened prior to the granting of the license was u.it evidence. Mr Bowler said the ded \sas incorporated in the license. Mr Neave expected his objection to be over-ruled, but he made it never theless. His Worship allowed the deed to be put in. Witness continuing, produced the license for the race. The Borough Council constructed the race in accordance with .the,deed. Mr Howorth was appointed engineer and he drew up the plans and specifications (produced) f>r the race. Tenders were called, «t,d the lowest was £ISIS 3s. The to.al cost was £2700, and he produced I .lie statement of accounts. All extris over the .CISOU originally agreed - n were duly consented to by the Minister.

Mr Howler put in eertilii <1 copies i che defendants' title to sections in Waimumu, where thcv were dredjiuj. Mr MacGregor, recalled, said the first year's estimate of the cost of maintenance was JCIAj, from Mau;i last, ami contributions were made 10 wards this by the three remaining companies by quarterly payments. The defendants admitted commencing dredging operations on July I', IUO3, and discharging tailings into the. Waimumu stream two miles above the point where the tail lace fwgan. |'J lie stream was in a state of pollution when it reached the defendants and Mr Neave did not admit .that any tailings or debris from defendants' dredge affected the race. Mr lsowler referred to the case of JlcKenzie v. the W a imumu Queen Dredging Co., before Mr Justice Williams, which settled the question of contributory damage as a similar case to the present. M. Foley, clerk of the Warden's Court and Receiver of Gold Kevenue, said he received payments from the diUerent companies under the deed already produced. To Mr Neave: He produced the

•Gazette' containing notice of intention to proclaim the Waimumu stream a sludge channel, dated May l(i, l:'Ol, also the 'Gazette' with proclamation of SeptwdWer 5, 1!!02, declaring it a sllidl'(' channel. •I. A Yule, secretary of the \Vailiniiiiii Queen and Royal Waimumu dredging companies, said these t«o companies contributed to the construction and upkeep of the tail race. He knew the defendants' properties and had seen their dredge working. Tli« debris and tailings went into the creek and then into the race. The debris from all the dredges ran over adjoining land before the construct ion of the race. To the Court: Defendants' clred,;e was the last to start. Win Murray, dredgemaster of the Waimumu Queen, and George Kay, a dredge hand, gave similar evidence as to defendants' dredge and working. Mr Foley, recalled, said that no application had been made by the defendants to be joined in the tail race license. Mr Bowler put in a letter from himself to the. defendants, datiil Mil August last, asking them to apply to be joined in the license, a reply thereto on the- 19th from Reid and Macassev that they were applying ; a further letter to Reid and Macassev and their reply that the pap?rs had been sent to Mr S. Fletcher, solicitor, and another letter in September that they did not now intend to apply. This closed the case for the plaintiffs. Mr Nea'-e said one defect in the plaintiffs' car was the absence of a miner's right. Mr Ri'v. !er replied that under section 106 a miner's right was not neccs snrv. Mr *"i'.ive said that the rfcfcnea i'flied rn "section W"- of the Minrnj ■V't The co c e Mackenzie v. the Waiuiwuu

yueen Co. was ;quite a different (a--'J from that before the Court. i'aei,; Mackenzie was a riparian owner and entitled to the stream in its natural condition. Here the circumstances had been altered by the proclamation of the sludge channel, and the olamtili's were not landowners, but ow.io's of an artificial cut. Their rights /vere not riparian rights, but were ruining privileges by section 94 of the '-< "t. The only rights plaintiffs had acquired were to cut and construct a race to carry off sludge, etc. The matter now before the Court gave them no other right whatever, but they suggested something under rule 31, and came into Court and asked for an- injunction against defendants. His Worship asked if, a man made a tail race could anyone come in and use it ? Mr Ncave said plaintiff's only had a right to cut, etc. The licensees (the Borough Council) had no claim at all and whatever the rights of the licensees might be, they haid no right to come to the Court. They must show that they were using the race for the purposes of section 94. The license was a nullity and worth nothing. If the Court held otherwise, then he contended that under section 108 they had no right whatever. hi May, 19UI. notice had been given by tile Government of their intention to proclaim the stream a sludge channel ; then came the agreement between the Borough, the Minister, and the landowners, but that did not affect any persot. not a party to it. The defendants were not parties to that deed, and if one of them did sign it, he was only bound by the covenant not In claim compensation for damages to riparian rights, waiving his statutory right under the Act. If the Court thought the grant was any good, still on the proclamation by the Governor all rights wore taken away and a free right given to all workers to discharge tailings into the stream. Plaintiffs must prove that what defendants were doing they were doing unlawfully, but tliev had a statutory right to discharge tailings into the stream The Warden had granted a license for a tail race, and after the ira'/etting of the proclamation the race was constructed ill lieu of a natural course. Defendants discharged their tailings into the streum, and were not concerned as to their ultimate destiny. If others made a straight cut for their _ own benelit. that could not prejudice defendants use of the stream. The Court could not go into the reasons why the proclamation was granted. but must decide in accordance with it. His Worship : -I'ui this is a case of trespass l'laiiiUlis are tins owners of a rac and you are trespassing on it."

Mr Neave : "That is their own fault If othe. persons will cut a olntnnel we are not concerned as to the destiny of our tailings. Plaintiffs must prove tlutt wi' art- wrong from the start, but the stream being a sludge channel we have the right to use it. and no injunction can be granted unless we d<> sometlrng wrong."'_ Riparian rights were barred by section I Hi, and plaintiffs had cut a channel and blocked up the stream, the natural outlet, for their own purpose. His Worship: It improves the stream Mr Neave : No doubt, but is no benefit to the miners. Mr Bowler objected that Mr Neave was not confining himself to the facts as proved. There was no evidence that the stream, was blocked, and the license provided that one head of water must go down the stream. His Worship said the license was granted before tin? proclamation. Mr Xeave said the proclamation gave ceitain rights and the only other persons were freeholders. The plaintiffs had 110 claim and 110 claim was mentioned in the license. He .referred to sub-section 11 of section 112, and said that plaintiffs had 110 minimi privilege. So long as defendants were doinir a lawful act they could not be cuilty of a tort, and 110 injunction could issue. There was 110 power to restrict the. proclamation. Mr Bowler Said plaintiffs were injured. as they had to maintain the race at a yearly cost of X 125, and they wanted defendants to contribute to that. Mr Neave said that regulation •>! only referred to the discharge of debris direct into a tail race, but this de f< ndants did not do. Mr Inder said that if the contention that defendants were not responsible for the destiny of their tailings was good, thin the case was bad law. He referred to the case of GuHic v. Christian as being a case directly in point, and there it was held that the defendant was liable for the destiny of his tailings., The plaintiffs had a license..-and as soon as they got that license they at once started work, and the Government ill pursuance of the covenants in the deed, proclaimed the sludj-' channel, and the privileges were conferred 011 the plaintiffs as trustees, and only the right to claim compensation by the. landowners was done away witli. If the Government saw T fit to proclaim the stream a sludge channel, a box .should have been put in to carry the one head of water reserved by the license with defendants' tailings* into the old bed of the stream, just as in the case where two im'll got. races which crossed, one must box under or over the other. lVfi ndi'.llts must so use tlheir own property as not to injure that of anotiier The race was not the water course, but the creek was, and defendants must take their tailings and debris tihcre The defendants had only got to make an application to the Court, and pay their share to get the use of the race. The proclamation of .lie sludge channel could not vary ne plaintiff's rights, and though the t'efendants had the right to discharge their tailings into the. stream Mt-'y must see that they did not go into the tail race. The cost of construe: >n had been very heavy and the upkeep was a continuing burden. He submitted that plaintiffs were entitled to an injunction. Mr Neave said that Gallic v. Christian had nothing to do with the case, and the Mining Act now made provision for such cases as that quoted. His Worship said he was going to decide purely on the question of principle, and proposed to grant the injunction, assuming that the debris went into the race, unless defendants showed otherwise. Mr Neave asked the Court to state a case for the Supreme Court. His Worship said defendants had the right to appeal, and he was in favor of stating a case. Mr Inder objected that the Comt could only state a case where it was 111 doubt as to the law, and Could not do so without consent of plaintiffs. If a case wciv stated, it.would not.come 011 til! after the long vacation, where-

as an appeal could be decided next month. Mr Bowler also objected to a case being stated. Hia Worship suggested that the parties might agree to defendants going on working without prejudice and that defendants should lodge an application now to use the race. Mr Howler was satisfied to take an interim injunction if defendants would apply at next Court for use of the race. Eventually it was agreed that a case should be stated for .tile Supreme Court and prosecuted without delay, and that defendants should deposit £lO towards payments of costs on the cafe stated. Plaintiffs' costs in the Warden's Court were assessed at £7 7s 3d, and further proceedings were then adjourned until December 8, it being expected that the matter will be argued at the Supremo Court at Jnvercnrgill next week.