A NOVEL MINING CASE.

Mount Ida Chronicle, Volume XVI, Issue 883, 11 September 1886, Page 3

A NOVEL MINING CASE.

THE ST. BATETASS CBANNBk OOSIPAHT V. WATSON AND OTHKES.

Special caso for opinion oj tho Supremo Court, Duuodin, to determine the priority or right to a certain water supply. Mr F. B. Chapman appeared tor complainants, ana Mr Honat for respondents. Mr Chapman argued the case, and submitted that, biking too grounds raised by the counsel in the oonrt below, he had shown on behalf of the complainant company physical occupation prior to that of the defendants; that that occupation was legal; and that whether the question was to bo determined byprior uccupationor date of grant the complainants had the prior right and most succeed, unless the action of the warden was wholly roid and the dates of the applications only were to be considered. The complainants had legal priority, and that legal priorilv, ho maintained, was backed op by equities, which certainty could not bo disturbed in the present proceedings:

Mr Mouat submitted that on various cronnds substquently referred to in His Honor's Judgment the defendant* were entitled to succeed. His Honor in giving Judgment said: The question for the determination of the court is: Whether complainants or defendants have a prior right to take water from the Dnnstan Creek ? Buih complainants and defendants have a license to draw water from that creek. Complainants hare a license to take S5 -beads, and defendants for six heads. Now the license of complainants is prior in date totbclioenseof defendants, and unless it appear that the license of complainants is bad upon die face of it, thoeomplainantsaieprima/dcteentiUodtoihcpriurriglit. That is clear by the urms of section 8. schedule D, of the Mines Act, 1877. That section decides " that superiority of right to a supply of water shall b» determined by priority of occupation, the earlier occupant having the superior right; and in all cases when «io occupier claims under the Ucensoorccrtincate granted by the warden, occupation shall be taken to have commenced at the date of such license or certificate." Unless, therefore, this ccrtiflcata—the certificate of complainants—is bad on the face of lt,or unless wo can go behind the certificate and it can bo opposed for other reasons, tho right of complainants must prevail. It was contended by Mr Mouat that the certificate was bad on its face because the warden had madn it subject to certain conditions which are not specified in the Act. Sow, It seems to mc it was quite opea to the warden to impose those conditions if ho thought fit in tho public interest* that they should be imposed. They appear tome to be conditions made in tho publicintcrcst,andsections?of thcroßUlatinns in the Gazette shows that the warden may grant applications upon such terms as he may think necessary or desirable for the public good; I hold, therefore, that the certificate of tho complainants is not bad on the face of it. ft was contended, however, by Mr Mouat that the warden had no right in tho first instance to have granted this certificate to complainants—that it was bis duty to have granted the certificate to defendants before he granted thecertificate to complainants. lam cot at all certain whether it is open for this court to go into that matter. However, assuming that it is competent for this court to consider this question, still I am perfectly satisfied that under the circumstances disclosed in Uiu caso Mr Uohlnson (the warden in 187») took the proper course in granting the certificate to complainants before he granted a certificate to defendants. Tho facta as then existed were these:—Duustan Creek was a natural watercourse. In 1866 or thereabouts the miners who were at work in the St. Bathans basin made two waterraces leading out of Dnnstan Creek which they used for mining purposes. They used these water-raoes and drew water from Dnnstan Crock without having obtained any license to do so. They continued so to do this for a series of years, from 1860 to 1879 The defendants or their predecessors in title applied for a right to withdraw water from Duustan Greek at points higher up than the diversion of the two existing races, and to draw from thence these heads of water This application camo before the warden, and an objection was put in by the miners who were using thethen existing water-races, and this abjection was followed up—or perhaps preceded, it does not appear quite clear from tho caso which—by an application from those miners who were working the£t. Bathaas basin to use thc-thon existing water-races, under which license complainants now claim It appears to me that the warden having tboso two applications before him was not only justified bat absolutely bound in all thoprindplesof right and Justice to give the miners who bad made these water-races, and who were using them, the prior right It seems tome to be quite out of the question to say simply because an application has been lodged first that therefore it is in all cases to take precedence It is true that the26th secUonof therulcsinthcGasetieprovidcsthatifmore than one application is mariefortbosamorightor privilege preference snail be given to the prior application But it does not at all necessarily follow from this that it was the same right: wan constat that there may have been plenty of water in the crock to give both the complainants' predecessors in title and the defendants' predecessors in title all the water they required. It seems to mo that the warden having the defendants'application before him was quite Justified in saying that under the circumstances the existing occupancy should be respected, and that any right that defendants took must be subjected to the claims of tho existing occupants. In tact that contention is Justified by section 8 of schedule D to the Act itself, which says that superiority of right to a supply of water shall be determined by occupation, thecariicr occupant having the superior right, and the complainants predecessors in title were Die earlier occupants. For these reasons:—The answers to the questions which the warden has propounded for the opinion of this court muft be.- As to question (at, whether on the fuels disclosed complainants right jL superior. As to the question <W, whether the fact that tho water-right having been granted by one license with permission to carry water through distinct races, and so now invalidates such license, I can sec nothing to show that it does so invalidate it. Answers therefore will be accordingly.