WANGANUI JOCKEY CLUB.

New Zealand Herald, Volume XX, Issue 6832, 10 October 1883, Page 5

WANGANUI JOCKEY CLUB.

Wanganui, Tuesday. The Wanganni Jockey Club acceptances for the Handicap and Hurdles, and the entries for the Maiden Plate and Ladies' Bracelet close at nine o'clock to-morrow night.

WHAT IS ANA VIGABLE Rl VER ? —THE FLOATAGE OF TIMBER.

A CASE of considerable pnblic interest was heard at tho District Court yesterday, before His Honor Judge Smith. It was an action brought by the plaintiff (Elias), against the defendant (McLeod) for damages to the banks of a stream, and to a bridge caused by his floating logs down it without being licensed under the Timber Floatage Act, 1873, and the damage was claimed to have occurred subsequent to the passing of the Land Act, 1882, section 72 of which amends the first mentioned Act. This case, on which the jury had returned certain findings, was considered for the purpose of ascertaining whether, on those findings) the plaintiff was entitled to judgment. Mr. Cotter, who appeared for the plaintiff, applied that judgment be now entered up for the £45 found by the jury, on the ground that the Waitoki stream Wade district, was not a navigable one; that a stream found by the jury to be only of an average depth of six inches, except on five times in the year, when for a period averaging nine hours the stream was capable of bearing logs down its course, did not in any way justify the stream being classed as a navigable one, —a navigable stream meaning one capable of bearing boats, logs, and other articles down its course for a reasonable time and a certain time during the year. In this case the jury found that it was only capable for such purpose during freshets, and those freshets of very short duration, and only occurring at very irregular intervals. He cited the case of Hubbard v. Bell (American Reports, vol. 5, page 79), decided in America, where it was held that such a creek as the present could not be considered as generally and commonly useful for the purposes of trade. He also contended that under section 72 of the Land Act, 1872, the defendants were prohibited from floating such logs without having obtained a license under penalty ; that such penalty rendered the floating unlawful, and the defendants having been guilty of an unlawful act were, irrespective of the question of navigability, responsible for all damages tbey had caused in prosecution of their illegal act; that if the penalty had been recoverable or was to be applied for the btnefit of the party injured, then it might be argued that the penalty was the only damage which the defendant had incurred ; but the case of Couch v. Steele (23 Law Journal, Queen's Bench, 121) decided that as the penalty did not go to the party injured such party had an action for the special damage that he had'sustained. Mr. S, Hesketh contended on the other hand that in the first place the facts as found by the jury supported the view that this must be considered as a navigable stream within the meaning of the American decisions, and also of one.or two cases decided in the Auckland District Court, amongst others the cases of Popo v. y.ppleby and Inglis v. : Hardy. He contended that the distinguishing criterion was its fitness to answer the want of those whose business required its use, and that, inasmuch as it was shown in evidence that the creek had carried down between 130 and 140 logs it was clearly proved to have fulfilled the purpose or use for which it was intended ; and also that looking to tho circumstances of the colony, the extreme value of such creeks as highways for conveyance of timber, the products of our forests, the Court should rather lean toward declaring these creeks navigable when in any reasonable sense they could be deemed to be so for such a purpose as this— useful alike to the country and the individual, In the second place, he submitited that the mere fact that the defendant at the time of the doing of the damage was in the pursuit of an act prohibited by section 72 of the Land Act, 1882, would not of itself disentitle him to the benefit which might accrue to him from the fact of the creek being declared to be navigable; and submitted that on the whole of the facts the plaintiffs, although entitled to judgment on some of the issues found, were not entitled to recover in respect of the main issues, which must be decided upon the question of navigability or otherwise. Mr. Cotter, in reply, contended that the Auckland cases cited by Mr. Hesketh did not show that they were decided after a correct consideration of the provisions of the Timber "Floating Act, 1873. That Act gave settlers all proper power, and made correct provision for all damages done. The cases were also ■ decided prior to the amended Act of 1882, which made the floating an illegal act. His Honor reserved judgment. :'. ; '