COURT OF APPEAL.

New Zealand Times, Volume XXIX, Issue 4279, 7 December 1874, Page 3

COURT OF APPEAL.

Thursday, 3. (Before their Honors Mr. Justice Johnston, Mr. Justice Gresson, Mr. Justice Richmond, and Mr. Justice Chapman.) BOUTON AND OTHEII3 V. HOWE AND OTHERS (CONTINUED.) ' The Attorney-General and Mr. Smith for plaintiffs, Mr. Macassey and Mr. Stout for defendants. . T . The Attorney-General (continued) : if the other side rely on authorities which show that the right must arise from a presumed grant, then the case just cited shows that the old dooof Lord Elleuborough has been overruled. Mr. Justice Johnston; It is not like the case of a servitus in the Roman law. The Attorney-General : No ; the right to flowing water is ex jure natural. It was held in tho Stockport Water Works Coulpany v. Potter, 3 H. and 0. 300, that riparian rights arise when there is land merely abutting on the

stream. Mr. Justice Richmond: There seems to have been no distinction made by the Vice-Chan-cellor in Crossley v. Lightowler, between land abutting merely, and where the half of the soil under the stream was in the riparian owner. The Attorney-General : No ; and that case was upheld on that point by Lord Chelmsford an appeal, L.R., 2 Ch. Appeals 1/8 j so that if the plaintiffs even have no right to the soil ad medium filum ague® still they can use the water if they have a right of access to the stream. Even where there, is no ownership of laud there may be a right to use water. Harrog v. Hunt, L.R., 4 Exch. 43, was a case of a customary right independent of laud ownership. The next point is as to the negligence in mining. The question of negligence is unimportant. This is an interference with rights, and does not depend on negligence. In Humphries v. Brogden, 12 Q.B. 739, there was an interference with a right analogous to the plaintiffs’ rights—namely, one of lateral support —and the plea alleging no negligence was held no answer to the action. ■ The like wns held in the Stockport Waterworks Company v. Potter, 7H. and N. 160. The attempt has always been made by manufacturers and others when charged with fouling streams, or causing a nuisance, to say that they have carried on their business with care and without negligence, but this defence has never been held an answer to an action for interference with rights. Assuming that we’have established that we are entitled to maintain this action as freeholders, it remains to be considered what position the plaintiffs occupy as lessees and licensees. Mr. Justice Johnston: It is not an ordinary lease you hold, but one determinable on certain conditions.

The Attorney-General : The lease is for a term of years, but it may be cancelled. The defendants may rely on section 129 of the Otago Waste Lands Act of 1866, which says that “ No possession will give any title against the Crown;” but that section means that nothing but what is expressly given will be considered to be impliedly given os against the Crown. Whether it. is a license or lease is of little importance as both licensees and lessees are tenants. Shepherd’s Touchstone 266; the Queen v. Dallimore, L. R., 1 P.C. 13. A licensee is an annual tenant, and why should he not have the use of w'ater for his cattle and domestic purposes? Section 82 of the same Act shows he was to have a homestead and to have the full rights of an occupant of the land. See also the regulations of 1856, and the form of license and the fm-m of lease in the Act of 1866. It may, however, be contended that no title is given as against the Crown, as the Crown has given to other persons certain rights that would conflict -with those of the occupiers. The section can only at most refer to lands leased, and it cannot he contended that it could enable the Crown to allow other persons to deprive the occupiers of the usual rights of occupation. Besides, the section does not pretend to legislate for lands outside goldfields. At most it refers to land within a goldfield’s district, and it may be questionable even however within such a district the rights of pastoral tenants can be interfered with. See sections 82 to 87. Then, as to the sixth question. It will no doubt be contended that quite irrespective of the Goldfields Act if you purchase land when persons above you are fouling the water which flows by your land you cannot complain. Mr. Justice Johnston;—They may say if yougo toanuisancecan you afterwards complain of it ? The Attorney-General: The case of Crossley v. Lightowler is strongly in the plaintiffs’ favor that you can. liven if the Crown is in occupation of a mining claim and, by its servants, is polluting a stream, if the Crown sells land below, the purchaser can prevent the fouling continuing; and the miner is certainly in no higher position than a servant of the Crown. There is no reservation in the Crown grants of the right to foul, and the question of priority of occupation is quite inapplicable to a case of this nature. Nor is that class of cases where a man occupies a house with a drain leading from it analogous to the present. This fouling is not an easement, and the doctrine of easements does not apply to running water—this being a natural not an artificial watercourse. fcSMr. Justice Richmond: You say that the doctrine of easements of necessity does not apply to natural watercourses. The Attorney-General: The class of cases of which Hall v. Lund, 1 H. and C. 676, is one, is inapplicable. It cannot be said that even in that case there was the right to pour polluted water on the plaintiffs’ ground. Mr. Justice Richmond; The doctrine of grants being taken most strongly against the grantor was applied in the case of Crossley v. Lightowler. The Attorney-General; In the class of cases of Hall v. Lund there was a severance, here there is none. The freehold land and the mining claims are not parts of one estate. Mr. Justice Richmond ; The freeholder, however, buys something subject to a nuisance. The Attorney-General ; That is so, but so in the ease of Crossly v. Lightowler, where the mills were close together. In the case of Hall v. Lund the decision turned on the mode in which the easement had been used. The seventh and eighth questions are involved necessarily in those already discussed. The ninth question deals with acquiescence. Now no right can be established by prescription under twenty years. This is not a case of having license to do something on the licensor’s land, where he stands by. and allows the expenditure of money. If the intention of the other side were correct the Prescription Act ought to be abolished—for rights might arise in three or four years. It may happen that Courts will not interfere by injunction where a party has slept on his rights, and that before injunctions are issued a variety of circumstances will be considered that will not be looked at where there is a suit for damages. In Wood v. Sutcliffe, 2 Sira., N.S. 163, it was said Court would only grant injunctions where such a proceeding would restore rights or tend to restore them.

Mr. Justice Johnston ; Does that case go further than that the Court of Chancery exercises a discretion in the granting of injunctions ? The Attorney-General ; It is a leading case on the granting of injunctions -when water rights are in question. It may bo argued also that because there are so many miners polluting the stream, and because it is so difficult to assess damages, the plaintiffs are without a remedy. The case however does not show the fouling is caused by use for domestic purposes, and hence when fouled by manufacturers and others English Courts will interfere. Mr. Justice Richmond : Still is there not as great a difficulty in interfering as if the fouling were caused hy the residence of thousands of people near a stream, as in the Bradford ease ? Supj>ose a solitary settler at the Kawarau complains of the river being polluted, who are the polluters but hundreds of miners scattered over a vast area ? Mr. Justice Chapman ; So in the Taieri, there could a settler complain of a solitary miner at Hyde, when for miles, from Black’s to Hamilton’s, miners are sluicing. The Attorney-General : In Goldsworth v. the Tunbridge Wells Commissioners, L.Il. 1 ' Eq., 101, the Court said they would grant an injunction until the nuisance became a public nuisance and indictable. Mr. Justice Johnston ; You have also drawn the distinction between acquiescence of a nui-

sance on your own land and that of one on another’s land. _ The Attorney-General ; Yes, and it might affect the granting of an injunction when there is long delay in asserting rights. But in this case the evil continues and becomes more burdensome. Mr. Justice Richmond : It might be an ac- ’ cumulating evil. The Attorney-General : Yes, and the soil itself even might be damaged, as in some of the Victorian cases cited. The tenth question it is difficult to answer. Wo say in reply, adequate compensation. It is • quite sufficient to reply, plaintiff entitled to nominal damages, and that a jury, if they think the plaintiffs have suffered material damage from the defendants’ action, can give more than nominal damages if they think fit. . Mr. Justice Johnston : Still, if you claim damages ultra, you must show on what principle their assessment is to be based. It is not enough to say you sue A.B. and prove £SOO is the amount of the damages you have sustained, but that it is not by A.B.’s action alone but by A. 8., C.D.E., &c.’s action. If the jury on such evidence gave you the full amount, then could the verdict stand ?

The Attorney-General : Still we are entitled to nominal damages, and the authorities say we are not limited to merely nominal damages. There is a principle of law that there is no contribution amongst wrongdoers. Mr. Justice Chapman: The doctrine of Merryweather v. Nixon in Smith’s Leading Cases, but does that apply here ? The Attorney-General : Well, at all events, we say we are entitled to such damages as a jury might reasonably give us. For these reasons we contend that all the questions should be answered in the plaintiffs’ favor. The Court then adjourned till next day. Friday, December 4. (Before their Honors Mr. Justice Johnston, Mr. Justice Gresson, Mr. Justice Richmond, and Mr. Justice Chapman.) The case of Borton and others v. Howe and other's was continued to-day. The Attorney-General and Mr. Smith for the plaintiffs, Mr. Macassey and Mr. Stout for the defendants. Mr. Smith : After tho lengthy argument of the Attorney-General it will only bo necessary to touch on some of the salient questions raised by the case. As to the first question, it is submitted that the Court should start with the presumption that the Legislature did not intend to abridge the common law rights of freeholders further than the words of the statute expressly do so. _ This proposition has been recognised in the interpreting of statutes. And, therefore, the Legislature will not be supposed to have intended any abridgment, except that clearly and expressly appears in this case by a reference to the Goldfields Act. Mr. Justice Chapman ; You say in effect that there is nothing in the Goldfields Act which expressly abridge common law rights. Mr. Justice Johnston : By express provision or necessary implication, I suppose you will say.

Mr. Smith : In the case of the Queen v. Bradford Navigation Company, 6 B. and S. 631, the principle I am contending for was affirmed. The thing done must be done not only within the statutory powers, hut within the intention of the Legislature. Mr. Justice Johnston ; Do you suggest they could mine without polluting the stream ? Mr. Smith : They might get gold without ground sluicing. Unless the Court sees that it will be physically impossible to use water for extracting gold without fouling the streams, then the presumption of law will he that the Legislature did not intend the streams to be folded by the allowing of the diversion of water for mining purposes. The question is, is mining without polluting streams physically impossible ? Mr. Justice Chapman ; There is a case in Douglas which shows the distinction between a thing being impossible and possible at a very great expense, where the working of mines was prevented by a flood which it was said was an act of God, and hence the working was impossible, but the Court held otherwise. Mr. Smith : Our contention is that the Legislature did not intend in conferring a benefit on a portion of the community to injure the rights of the rest of the public. Mr. Justice Chapman : Then it may be that the mines may have to be abandoned. Mr. Smith : That may be so. The Legislature may not have gone far enough. It cannot be said that the Legislature intended that the mines were to be worked at all hazards. The Legislature has only conferred a limited right. Mr. Justice Johnston ;■ There is a power under sections 10 and 11 of the Goldfields Act to make regulations. Mr. Smith ; It is true the Governor can make regulations, but these cannot go beyond the words of the Act. Mr. Justice Johnston ; Still the communication of these powers may show what was the intention of the Legislature, and may give some indication of the meaning of the Act; although, of course, we have no right to assume that the Legislature intended that the rights of the miner were to be paramount to every other interest. Mr. Smith : The authority of the case I have cited is applicable to the present case. There Justice Crompton asks, p. 619 ; Is there any authority to commit a nuisance. They {i.e., the defendants in the case,) had a right to make a canal, but that did not allow them to have impure water flowing through their canal.

Mr. Justice Johnston : Is not the pollution the very act the Legislature by the Goldfields Act authorises, ah all events by implication 1 Mr. Smith : The pollution charged here is the pollution of a stream. It may be allowable for. the defendants to pollute the water, but not to pollute it and then return it into a natural watercourse or stream. Mr. Justice Richmond : You see it is the law of gravity that causes the difficulty. The impure water must go somewhere, and therefore it finds its way into the stream or river. Mr. Smith : It need not necessarily flow into the stream. Mr. Justice Richmond : What ie to become of it ? Mr. Smith : It might be purified before flowing into the stream. Mr. Justice Richmond : The case says it has always been practically necessary to foul the stream. Mr. Smith : These words do not mean here more than that the miner could not work at a profit without fouling the stream. If the plaintiffs had admitted the impossibility of mining without fouling, then they might have as well given up their case. It may be submitted that the legislation respecting gold mining is only tentative, and it may be that the privilege conceded to the miner is not sufficient to allow him to do what ho could not lawfully do at common law. There is a case in equity similar to the one cited at law. The AttorneyGeneral and Bradford Canal Company, L. It. Q. Eq. 271. The next question is as to delay, and whether that amounts to acquiescence. The case just cited shows that mere delay is no proof of acquiescence. Besides, the Court ought not in this case to be exact as to time, as this nuisance is one that is increasing in its evil, and the plaintiffs required time to see whether it would grow into a nuisance and be injurious to them. Mr. Justice Chapman : In your former argument you have conceded that the miners’ rights are a statutable grant. That is, it is a grant by the public ; and the other side will probably contend that there is something stronger in this grant than one made inter partes, as the public as a whole are represented in the Legislature that made it; and the question may be, is not this pollution so absolutely necessary to the enjoyment of the grant that without it the grant is useless 1 Is the pollution inseparable from the grant 1 Mr. Justice Johnston ; Mr. Smith’s contention, I understood to bo, that the case does not go further than that gold could not be profitably got otherwise than by fouling. Mr. Smith : Yes ; the words practically necessary go no further than that. The rights conferred on minors are not to derogate from the rights of the agricultural or pastoral class. The class of pastoral tenants is the creation of statute law.

Mr. Justice Johnston : I grant you we must not assume—without the express words of the statute—that the Legislature intended to foster one class of the community at the expense of another.

Mr. South ; The Goldfields Act gives the privilege to use water, but not to pollute streams. If a man has laud below tho miner, could the latter by bringing water in his claim utterly destroy the rights of those below him ? Mr. Justice Gresson : Fletcher v. Rylands decides that at common law if a proprietor brings anything on his land that injures his neighbors he is responsible. Mr. South : The Attorney : General v. Leeds Corporation, L.K. 5 ch., App. 583,' is also in point. It lies on the other side to show express authority. Mr. Justice Johnston : The question is, had the Queen a right to derogate from her own grant in order to get minerals. It is alleged here that private parties would have the same right as the Queen on her own lauds, and this by virtue of the statute. Mr. Smith : Possibly if no land along the banka of the stream had been conveyed to private parties, the Queen might have had the right to pollute or divert the unalienated stream, but these parties have acquired rights as pastoral tenants, &c., and their rights are not to be injured. The arguments bearing on question one are applicable to question two, and questions three, four, five, and seven may be bracketed together. There is no distinction from tho variety of tenure of the rights of the plaintiffs. The allegation of possession is sufficient in a declaration to have an action at law for injury to a natural watercourse. See Bullen and Leake’s Pleading; Sampson v. Hoddinott, 1 C. 8., N.S. 590. Whether the right to soil ail medium filu m aqua is applicable or not is of no moment. Embrey v. Owen ; Crossley v. Lightowler. The reason why a case like that put by tho Attorney-General of a horse being poisoned has not been adjudicated on is that he was only a casual sufferer, while the riparian owners were greater sufferers and would have interfered. See also Suffield v. Brown, 33 L.J., Eq. 249. Pyer v. Carter, 1 H. and N., has been disapproved of. Mr, Justice Richmond: It is still law, however it is said, though disapproved of by Lord Westbury on one point. ■Mr. Smith; The other cases cited are more clearly akin to this case than Pyer v. Carter. Mr. Justice Richmond; The question arising in question six is, was the land sold to you subject to a servitude; that is, the land sold after the proclamation. Mr. Smith; And in reply that no casement of necessity arose. Then as to question nine. I have already said that mere delay in talcing steps to prevent a nuisance does not prevent a person asserting his rights at law. It may bo that an injunction, as has been said by the Attorney-General, will not issue, but there is no case where the longest quiescence, except a prescriptive right arose, has been sufficient to disentitle a party to sue for a nuisance. Mr. Justice Johnston: You draw a distinction between quiescence and acquiescence. The case of Johns v. Revens, Court of Appeal Reports, recognises that distinction. Sir. Smith ; Williams v. Earl of Jersey, 1 C. and Phil. 91, may be relied on. (Marginal note read.) Mr. Justice Johnstone ; That is a case of volenti non fit injuria. Mr. Smith ; The case goes no further than that if plaintiff encouraged nuisance he could not afterwards complain. But here no encouragement. Mere acquiesence does not amount to encouragement—Cooper v. Hubbuck, 30 Beav. 160. That case and also the case of Bankhart v. Haughton, 27 Beav. 425, show that though a party may have lost by his own laches rights in equity, still that he is not thereby prevented suing at law. And the Master of the Rolls in the latter case shows there is a distinction between where tho injury can be seen at once and where the injury is increasing, and its full effects are not discernible until afterwards ; and the like principle was affirmed in Davis v. Marshall, 10 C. 8., N.S. 697. At most only quiescence is alleged in this case, the facts neither amount to consent far less to encouragement. [The remainder of the report is unavoidably held over for a day.]