THE COURT OF APPEAL.

New Zealand Times, Volume XXIX, Issue 4277, 4 December 1874, Page 3

THE COURT OF APPEAL.

Thursday, December 3. (Before their Honors Mr, Justice Johnston, Mr. Justice Gresson, Mr. Justice Richmond, and Mr. Justice Chapman.) BOUTON AND OTHERS V. HONE AND OTHERS. The Attorney-General and Mr. Smith appeared for the plaintiffs, and Mr. Macassey and Mr. Stout for defendants. This was a special case, stated by the plaintiffs and defendants in an action in the Supreme Court, and moved by consent into the Appeal Court. The plaintiffs are runholders and freeholders, having land abutting on the Marawhenua river, and having land through which certain streams flow, and the defendants are three miners mining near the Marawhenua river, and the tailings from whose claim have, along with other tailings from other claims, polluted the streams flowing through the plaintiffs’ land, and the river on which the plaintiffs’ land abuts. There are eleven questions submitted to the Court, and these will sufficiently explain the importance of the issues raised to the miners of Hew Zealand. The questions are :

1. Have the goldfields laws of the colony abridged the common law rights of a riparian proprietor, and sanctioned the use of natural streams of water in a manner and for purposes which would be actionable in England ? 2. H the auriferous deposits in the goldfield referred to belong to Her Majesty, and they cannot be worked without fouling and polluting the streams, can a freeholder maintain an action for polluting by gold-mining, under the existing laws, a stream or river that flows past his freehold ?

3. As holders of the pastoral license mentioned in the . case, would the plaintiffs before the surrender of such license and the obtaining of a pastoral lease, have had any right of action arising out of the fouling of the waters of the streams before mentioned, by reason of mining operations conducted and carried on without negligence ?

4. As lessees under the Otago Waste Lands Act, 1866, have the plaintiffs such a right of action in respect of their leasehold ?

5. As freeholders or owners in fee of land purchased by them before the proclamation of the goldfield in which the" defendant’s claim is situate, have the plaintiff’s such rights and privileges, as riparian proprietors or otherwise, as entitle them to maintain an action for the fouling of the waters of the streams, by reason of mining operations carried on and conducted without negligence ? 6. As such freeholders in respect of land purchased by them a/ter the proclamation of the said goldfield, are the plaintiffs entitled to maintain such action, or did the plaintiffs purchase subject in law to an easement of necessity in favor of miners then lawfully working in the goldfield, enabling them by the use of tail-races to discharge tailings into the said streams or the tributaries fhereof ?

7. Are the plaintiffs entitled to maintain such an action, as well in respect of their freehold or leasehold lands upon which any of the said streams abut merely (without passing through), as in respect of their said lands respectively through which such stream passes or flows ? 8. As in some of the Crown grants to the plaintiffs, their land is described as, and as matter of fact is, bounded by a non-navigable river, do the plaintiffs by reason thereof acquire any riparian rights, and, if any, such rights as prohibit miners discharging tailings into the river ?

9. Should it be found by the arbitrator that the plaintiffs stood by while the defendants were engaged in constructing the water-races and tail-races ; that the plaintiffs knew of the progress of such works, and foresaw, or ought reasonably to have foreseen, that the ordinary use of the said races would result in fouling the said streams, and that the plaintiffs took no steps to restrain the defendants from completing their said races, or discouraged them, the said defendants, from expending their money and labor thereon, would such facts furnish a legal answer to the action or to a claim for an injunction to restrain the defendants from continuing the injuries complained of, or would they be a ground for mitigating the damages ? 10. Having regard to the practical impossibility of ascertaining to what extent the defendants have fouled the before-mentioned streams as contra-distinguished from the workings of other miners, upon what principle are damages to bo assessed against the defendants ? 11. If the plaintiffs are entitled to damages, in respect of what tenure or interest (as licensees, lessees, freeholders before, or freeholders after the proclamation of the goldfields) are they so entitled ? The Attorney-General : The first question turns on the Goldfields Act ; and, no doubt, the defendants will rely on sections of the Goldfields Act, 1866, and the interpretation of the word “ mine.” The sections of the Act bearing on the question are: —Section 3, giving power to proclaim a goldfield; section -1, providing for the issue of miners’ rights; section 6, showing what a miner’s right authorises; section 21, as to the use of water from streams, pools, &o. Mr. Justice Johnston; I suppose we must assume that the word “stream” includes all flowing water. ' The Attorney-General : Section 11 gives power to make regulations ; and Part 111. of the Act, it being admitted that it has been brought into operation in Otago, deals with water rights. Section 26 gives power to rescind water rights on payment of compensation. Section 112 provides that no one can sue in a Warden’s Court without a miner’s right. It will no doubt bo contended by the defendants’ counsel that by miner’s rights and licenses tho defendant acquired the right not only to divert and use the water, but also to allow the water to flow away from their claims impure—with earthy substances held in solution. We contend that these rights and licenses give them no such right. Tho Court is to assume that there has been no negligence on tho defendants’ part; but we say that, as in England, negligence or no negligence is of no importance ; so here, if there is an interference with a right, that can only be sanctioned by prescription, or express grant, or by the express words of a statute. The second question must meftn that supposing the auriferous deposits cannot be “profitably” worked—not totally unworked—for tho earth in which the gold is found might be carted away. Mr. Justice Johnston : The question will be, can the Queen work mines and use water, even if that working and uses should bo detrimental to a freeholder ?

The Attorney-General; The law that may bo relied on by the defendants is that of some hundred years ago, when gold was scarce and the Sovereign could not purchase it. At all events, all the powers given in the Goldfields Apts are over Crown lands in goldfields districts ; but so far as the freehold land is concerned, the Crown has parted with the land.

The diverting of streams, See., refer to Crown lands.

The Attorney-General : The Act only refers to streams running through Crown land. As soon as the land is sold the power to interfere is gone. The Goldfields Act deals only with Crown lands. No doubt if the Queen had originally the whole land along the banks of a stream, then she might foul the streams as much as she liked, but if there has been acquired by a subject a right to use the water in the river, then the right of polluting has ceased. Mr. Justice Johnston : Your argument is she has no right to foul a stream abutting on Crown land if there are private lands abutting on it below. The Attorney-General: As that could not be done in England, so we say it could not be done in New Zealand. There is no difference between the English and New Zealand law in this respect; besides, once land is sold it ceases to be a goldfield. (See section 21.) Mr. Justice Richmond : A goldfields district may however include private lands. The Attorney-General ; That is so, but when the lands within the district are sold they cease to be under the operation of the Act. We admit that so long as the lands are Crown lands the Crown can give rights to use and divert the water, but that this power ceases when the lands become private property. There is a penalty for mining on private land, and the Act no doubt gives the right to use water and to make tail-races, but so as not to interfere with any private rights, for there is provision for compensation if private rights are affected. Miners, runholders, and freeholders are all, under the Act, to get compensation if their rights are affected. And that being so, it cannot be contended that private lands are affected on the ground of necessity. The Goldfields’ Acts do not grant any more rights than the Queen may lawfully use. The first question tacitly assumes that the plaintiffs had, subject to the Goldfields’ Act, the common law rights of riparian proprietors. Mr. Justice Johnston : We will have to ascertain first if he is a common law riparian proprietor, and then do the goldfields’ laws abridge that right ? The Attorney-General: We assume that if the defendants were not occupying lands on a goldfield the plaintiffs would have a right to have the water flow past their land unpolluted, and the question therefore is did the Goldfields Act allow the pollution of streams ? Mr. Justice Johnston : Does the Act in fact give the power to pollute streams not pollutablc before the Act ? The Attorney-General : There is nothing in the Act giving any such power—nothing express, at all events, and the presumption will bo that private rights were not to bo interfered with.

Mr. Justice Johnston : Would not your contention render the Act wholly nugatory ?

The Attorney-General : Not necessarily. There may be land that can be worked in a way not to interfere with private rights, whilst the defendants may have taken up claims that cannot be worked without immense injury to private rights. Angell’s Law of Waters, chap, xi, and Broom's Maxims, p. 5, show that an Act wall not be construed so as to take away private rights. In construing the Goldfields Act the Court will consider whether the. Legislature intended to deprive parties of their rights without compensation—the inference being against such a construction of the Act. The Victorian cases uphold private rights. Campbell v. Ah Chong, 1 Aust. Jur. Rep. 35 ; Kerferd and Box’s Digest, p. 539 ; Bonshaw Mining Company v. Prince of Wales Mining Company, Argus Rep., 13th December, 1867 ; and same against same, Argus Rep., 1 Oct. 1868. The Victorian Mining Statute of 1865, section 5, gives as full powers as are given by our Goldfields Act. (See Macfarland’s Digest.) English cases decide that if mining companies cannot mine without injuring the rights of private persons, then that they must either cease mining or else come to some agreement with those they are injuring. Then as to the rights of the Queen. It has been decided that gold belongs to the Queen, even though the Crown has parted with the land, and that we admit. We do not, however,'admit that the Queen has any prerogative right to mine on private land in New Zealand. Whatever rights the Crown in England may have to get gold, there is no such prerogative in New Zealand. In Bacon’s Abridgment the Queen is said to have an extraordinary right to mine for saltpetre. Mr. Justice Chapman : That is the wellknown saltpetre case, and arose after the invention of gunpowder. The Attorney- General: It is said in the books that the right to gold, and to mine for gold and silver, belonged to the Queen, because it was needed for coining, and gold could not be bought readily.

Mr. Justice Richmond : The Crown needed to buy it or to mine it. It had not then discovered the mode of borrowing. The Attorney-General ; The other side will likely rely on the case in Plowden, the Queen against the Earl of Northumberland, Plowden, 310, 316. (See Banbridge on Mines, pp. 56 and 57.) And following the authority in that case, it may be said that the Queen could foul streams, if it were necessary so to do in order to get gold. But there are no such prerogative rights here. The rights under which the miners act are conferred by statute. Mr. Justice Johnston : You say that the Crown could take gold out of its own land, but that its rights are to be decided by the statute, and that its subjects have no more rights than the Goldfields Acts give them. The Attorney-General : There is no such prerogative right here as in England. Nor, indeed, is there anything in tho case said of the exercise of any prerogative. When the prerogative of mining for gold is exercised it is for the Crown's benefit ; but in New Zealand mining is for the benefit of the miner, not of the Crown. The next questions that are raised are those relating to the relative rights of tho plaintiffs. Taking question five first, viz., that relating to the rights of the plaintiffs as freeholders, the other questions can then be better discussed after the rights of a freeholder are determined. The case appears intended to raise this broad question, whether in New Zealand tho person who is in possession of land has a right, by virtue of that possession, to the water flowing past his land. The English authorities show that he has such a right. Mr. Justice Chapman: You put it that he has such a right quite irrespective of tho quantity of his estate. The Attorney-General : That tenure does not affect the principle, and that being so, it is of little use discussing the plaintiffs' lights as licensees, lessees, and freeholders. To test this, this question may be put—what is the form of action one would bring if his rights were interfered with ? Would a plaintiff not have his action in possession ?

Mr. Justice Johnston : The reversioner may, however, have his action as well as the mere possessor. The Attorney-General : No doubt he also could have his action, if his right as reversioner were likely to be injured by a continuance of the nuisance. Mr. Justice Richmond ; Is not the case so put as to show the limited nature of a pastoral tenant’s title, viz., “to depasture stock?” The Attorney-General : No doubt his lease is for pastoral purposes, though the form of the lease given in the fifth schedule of the Waste Lands Act contains the words demise and lease, and then describes tlie land. I presume that it will be contended that there is a difference between New Zealand law and English law as to a freeholder at all events. Mr. Justice Chapman : There is nothing in England strictly analogous to a pastoral tenant in New Zealand.

The Attorney-General: There is the case of the right of commonage on manorial lands. Then there will, I presume, be a difference sought to be established between rivers flowing past, and those flowing through the plaintiffs’ land. Mr. Justice Johnston: The contention, no doubt, will be that there is a distinction between the river flowing through and that flowing past where the doctrine of ownership of the soil, ad medium fdam aqiue, applies. The Attorney-General ; That is no doubt what will bo said, and this question will ho raised, viz., that although water flows through land the land over which it flows belongs to the Crown, that the land between the banks of

the stream over which the stream flows is not in the freeholder who owns the land on both sides of the stream; and also that the doctrine ad medium Jilum aqua: is not the law of New Zealand. Mr. Justice Chapman; It may he very questionable whether the English law as to highways is applicable to the Colony, and whether Doroaster and Payne applies, it still remains to be decided whether either of the doctrines ad medium filum aqua, or ad medium jilum vim is applicable to the colonies. Mr. Macassey referred to Lord and the Commissioners of Sydney, 12 M. P.C. 4/3, and to a case decided by the Supreme Court of Victoria, Davis v. the Queen. Mr. Justice Eichmond: It is, I think, a great pity if the Courts have to say that ad medium Jilum vim is to be applied to our public streets. The Attorney-General: We rely on Lord and the Commissioners of Sydney, and the cases collected in Angel! on Waters, as showing that a grant of land, with a boundary, gives the right to the soil, ad medium Jilum aqua. Mr. Justice Eichmond.■ Vice-Chancellor Wood, in Crossley and Lightowler, L. E. 1 Eq, 273, seems to lay it down that the proprietorship of the soil is of little moment. The Attorney-General : We submit that is of no moment,- if there is a right of access to the water. Mr. Justice Eichmond ; Riparian proprietor means, then, any one who goes to the bank of the stream, though his right to the soil ends at the bank. The Attorney-General: We contend right of access is all that is needed. Suppose there is a road leading up to a river, and at which I can water my horse, and some one pollutes the water so that my horse is poisoned and dies, I would have my action against the wrongdoer. Mr. Justice Johnston : That is pushing the doctrine you contend for surely far enough. Mr. Justice Gresson : Bmbrey and Owen is one of the leading cases on the subject, and it decides that right of access is sufficient. The Attorney-General : The words “right of access ” are used advisedly in several of. the judgments. The case of Lord Norbury against Kitching, 9 Jur. N.S. 132, also shows a right of access is enough. In that case it was hold the water could be taken from a watercourse to another portion of the estate. Mr. Justice ' Gresson : But only for “ domestic purposes!” Mr. Justice Chapman : It is always subject to the sic tuo utem maxim. The Attorney-General : Yes, so that too much is not taken the right can be exorcised. In Dickinson v. Grand Junction Canal Company, 7 Bxch. 282, Chief Baron Pollock uses the same expression “right of access,” and Mason v. Hill and Embrey v. Owen are cited. (To be continued.) [Note. —The Attorney-General finished his argument, and Mr. Smith will continue on the same side to-morrow. As the case is of great importance to the mining community, we intend to give as full a report as our space can afford.]