WATER-RACES ON GOLDFIELDS

New Zealand Herald, Volume XXXIV, Issue 10405, 1 April 1897, Page 6

WATER-RACES ON GOLDFIELDS

AN IMPORTANT CASE. 'from OUR own correspondent.] Pakroa, Wednesday. 3 The application of the Woodstock Company I for water-rights at Karangahake, came on for hearing at the Warden's Court last \ evening, and as an objection had been lodged ; by the New Zealand Crown Mines Company to the granting of the same, it is needless , to say a good deal of interest was centred ' in the proceedings. Mr. Cotter, instructed by Messrs. Jackson and Russell, appeared ; for the applicant company, and Mr. Theo. , Cooper, instructed by Messrs. Miller and Porritt, appeared for the defendant company. >.Z3 Mr. Cotter prefaced his remarks by reading the application, which stated "that the Woodstock Company desired to obtain a new license under section 104 of Mining Act 1891, for a water-race and water-right, to divert and use ten heads of water from the Ohinemuri River at Karangahake, such new license to bo in force until tho Ist August, 1903, and to bo issued in respest of the same rights and in lieu of water-race license No. 31, under section 3 of the Mining Act, 1891, Amendment Act, 1894, suclf now license to preserve to the licensee the priority of right to water to which it is entitled under the said license No. 31. The objection of the Crown Company was then read, and it stated that the objection was made on the following grounds: "Wo (Crown Company) are the holders of a license to divert water in the Ohinemuri River dated 2nd October, 1890, numbered 46, which will bo materially and prejudicially affected by tho granting of the new license applied for by the Woodstock Gold Mining Company, Limited. 2. No notice of the said application has been served upon us as required by section 124 of the Mining Act, 1891. 3. No public or other notice of the place when the said application and any objections thereto will be heard and decided lias been given as required by the said section 124, 4. The said license No. 31 is not a license held under the principal Act, viz., the Mining Act, 1891, but is held under the Mining Act, 1896. 5. The said license No. 31 has not yet been surrendered as required by section 3 of the Mining Act, 1891, Amendment Act, 1894. The said liccnsp, No, 31, is not a valid or subsisting license, but was long since abandoned by reason of the race thereby authorised bo be constructed never having been constructed ainco the grant of the said license, and the water thereby authorised to bo diverted and used having nover boon devoted and used since the grant of the said license." Mr. Cotter then discussed section 3 of the Mining Act Amendment Act, and went on to show that as regards forfeiture of the rights in question, this could only be decided by tho Warden in a suit properly brought before tho Court, and not in the incidental way introduced. That question could not, he maintained, be brought up in the present proceedings. The Woodstock Company had had these license? granted to them, and the question of their validity could not now be discussed. The granting of ( in application, he contended, would not affect the validity or invalidity of ! the licenses existing or their liability or ' othoriso to forfeiture. He subniittod that , tho objection was nob properly laid, ] and it was bringing in by a side i wind, a method of procedure which ] should have been started in a different way. 1 Then again the objection should state when the abandonment started or was complete 1 or when the licenses which once subsisted j were rendered invalid. So far as the ( licenses were concerned, Mr. Cotter sub- , mitted that they had never been attacked, , nor had their validity ever been questioned i prior to the lodgment of tho present objec- ' lion, so that for the past 18 months these licenses (which he produced) were held by 1 the present Woodstock Company the rents ! on the same had been regularly and con- f sistently paid, and this he contonded was a \ very strong point in favour of the Warden J granting the application then beforo the , court. . The Woodstock Company held these licensos, and all thoy asked was that the court should give them a new license , under the Act, prosorving whatever priority , the company had by virtue of the docu- , ments in question. a

Mr. Cooper said it was absolutely necessary for tho protection of the Crown Mines Company to lodge the objection, otherwise tho Woodstock Company might say hereafter that the Crown Company had stood by and allowed them to exchange .their titles without objecting, and so in a manner acquiescing. Mr. Isaac Williams, he said, held in a similar proceeding, that the Warden had jurisdiction to enquire into the validity of the titles being exchanged, although ho had also held that the Warden's decision in such a case practically bound noither party. If the Warden thought he should not exercise his discretionary enquiry into theso matters, then he should note that tho exchange was granted without prejudice to whatever rights tho Crown Company might have had. The position the Crown Company took was that the failure of tho Woodstock Company to construct a race and life the water was equivalent toan abandonment of their right, and a loss of their priority, and that tho declaration of forfeiture was not necessary, and this position would be maintained in subsequent proceedings if the Warden did not considor it necessary to go into the case that day. In support of this contention Mr. Cooper referred to various decisions of the Supremo Court and sections of tho Mining Act. He thought it was immaterial whether the Crown ( ompany's objection was inquired into that day, if the exchange of titles was made without prejudice to their existing rights, but it was essential for their protection that their position should be made clear before the Warden. The points that would arise when the matter was fully gone into would be of the greatest importance to both the companies interested, as well as to the mining industry generally. The Warden said that he had listened to tho arguments of counsel with great interest and a considerable amount of in-

struction. It may seem strange, but for some time past he had been looking into the question of water-races, for he thought that the Mining Act was nob very clear, and nearly all the cases quoted by counsel that day he had looked into, for he (the Warden) felt that sooner or later the question of water-races would be brought before the Court. It was very, hard to find cases anything like the case in question, for nearly all he came across wore matters affecting alluvial fields, and these, he contended, were nob applicable to the case then under discussion. With regard to the case before him, he (Mr. Bush) thought that it was necessary for the defendant company to come before the Court on complaint, and so allow the matter to be gone into in the proper way. He had held this view before, and he still maintained the opinion. He had looked into the matter, and found that the licenses in question were registered in the name of tho Woodstock Gold Mining Company, Limited, and with regard to section 168 of tho Mining Act, he thought that that sec tion had been framed to protect the companies concerned, especially when a cobsiderable sum of money had been involved in the undertaking. Ho thought that if a person bought a right, and if that right remained six months without being attacked, and the rents on same bad been consistently paid, it could not be attacked after the purchase, and so he took it the Legislature introduced the section in question to prevent people being harassed with regard to the validity ot their rights. Holding theso views, he did nob see any reason why the application should not he granted. His Worship then granted the application, with costs £1 'is in each case.