COURT OF APPEAL.

New Zealand Times, Volume XXIX, Issue 4280, 8 December 1874, Page 2

COURT OF APPEAL.

Friday, December 4. (Before their Honors Mr. Justice Johnston, Mr. Justice Gresson, Mr. Justice Richmond, and Mr. Justice Chapman.) BORTON AND OTHERS V. HOWE AND OTHERS. (Continued from the Times of Monday.) Mr. Macassey :';' The material questions submitted to the Court in the case turn more upon the Goldfields Act than upon the authorities cited, though it is no doubt useful in construing the Act to call in the" aid Of cases and of other 4cts. The contentions of the other side, first advanced, amount to this, that the Goldfields Act does not allow. the" fouling of streams, and that' the Victorian decisions uphold the same doctrine.. The decisions, of the Victorian Courts cited are of no weight in this case. The case most relied on, that of Campbell v. Ah Chorig, Was not argued, there being no appearance of the defendant; and there are no reasons stated, in the judgment of the Court. Mr. Justice Johnston : I presume we, at all events, have concurrent jurisdiction ; arid except the reasons for the judgment are given we are not bound to follow it.

Mr. Macassey : Bonshaw v. Prince of Wales Mining Company is also devoid of authority ; indeed, the only passage in the judgment in that case bearing on the question is the following : —"As we read the evidence, it appears to us that to permit the defendants to continue doing what they have done, would be to violate the principle of law laid down in Fletcher v. Ryland ;" so that in reality all the case decided was that, in the circumstances of that case, the English law was applicable. There are two other cases which have, some bearing on the question, that might have been cited by the other side. (Nightingale v. Daly, 3W. W. and A. B. , Eq. 10 ; and Stevens v. Webster. 3W. W., and A. B. 27.) And these cases seem to put the law that the miners have no greater powers than owners in fee possess. In the Great Extended Company v. Hales, Mac. Repts. 896, Mr. Justice Chapman said that the common law right of lateral support was not inapplicable to miners.

Mr. Justice Chapman: There it was between liolrlftrs of- equal rank. They were all miners. Mr. Macassey : I have cited these cases as the only other Victorian or New Zealand decision having a direct bearing upon the case, and it is submitted that the questions now raised should be decided regardless of any authority these cases' may have. It is important to consider what the rights of the Crown were prior to legislation. It was not questioned by the other side, that under a grant from the Crown a reservation of all precious metals is implied ; and it might be asked, though it is not necessary in this case, whether the Crown could not grant a right to search and mine for, gold on private land, and with that grant all the necessary incidents. If it could—and the authorities all say it could—-then whatever the Crown could do by itself it could do by others. Mr. Justice Johnston : Suppose no intervention by statute, it could confer a franchise to search and mine for gold.''..•; Mr. Macassey : And though there appears apparently in the Goldfields Act a reservation of all': the ■ Crowri rights, yet if that were to be construed as depriving the miners of' digging, &c., for gold, such a reservation would be void for repugnancy. At most, however, the reservation is only of prerogative rights. In the Land Acts there is the same reservation. Before the passing of the ■ Goldfields Acts the Crown might have conferred a franchise to mine on either Crown or private landß, and to employ.all exigencies necessary to that end. It was, therefore, with these rights, and something more, the Legislature were dealing, and meant to confer. Aud iii doing this private rights must'. necessarily be interfered with. Indeed, the Goldfields Act, from the beginning to the end, is an interference with common law rights. First, it makes the private rights' of the Crown, as it were, .public—giving the subjects of the Queen power to take the royal' metals under certain conditions. The intention of the Legislature is plain; It was to develop gold-mining, a.nd in that development private rights must necessarily suffer. . ' Mr. Justice Johnston : Does not the Goldfields Act make mining a private enterprise as much as sheep-farming or agriculture ? Mr. Macassey : I contend that the Court, looking at the Act, must construe the mining of gold as an interest of great importance, and one that, in its importance, is "thought by the Legislature to transcend the pastoral interest. Mr. Justice Johnston : I cannot admit the latter part of your proposition. Mr. Justice Gresson : Your argument amounts to saying that the Legislature intended one interest to preponderate over another. ■ Mr. Macassey : I intend so to contend. The whole statute law shows that whenever pastoral pursuits interfere with mining they must give way. This is plain from many sections of the Act. See section : l6, arid also the decision of the Court of Appeal, and of the Privy Council in Maclean v. Macandrew. But as to; the Queen's rights. The case from Plowden has been cited. There is a recent case, that of the Ballacorldsh Mining Company v. Dumbell and others (43, L.J., N.S. P.C. 19), also (L.R., 5 P.C. 62), in 1 which the' incidents that flow from the right- to search for minerals appears. In that case the Crown as owner of all the metals in the Isle of Man had the right also to subterranean wateri Mr. Justice Johnston : It was not iri that case a right to flowing water. \ Mr. Macassey : I cite the case merely to show that the old law in Plowden is not to be easily got' rid 61 as the Attorney-General seems disposed to treat it. There is also another casei Eiddle <v.' Martin, 2 Atk. 20, in which it was contended that the Crown had the right .to! break the- surface.' 'There -are other analogous cases' showing what rights mil be continued to be impliedly reserved. There is a Forest of Dean case,, Gould v. The Great Western Deep Coal Mining Company, 2 De G. J. and S, 600, where the reservation of a lower gale of coal was held to impliedly reserve the right to work that gale, and to dig

through the upper gale. And if there be an implied reservation of precious metals then there must be a right to get them, else the reservation is of no avail. The question then arises would it be competent to sever the right to get metals, and the right to use water necessary to the getting of them. And if it be, as we contend the case shows it is, absolutely necessary to foul streams in order to get gold, then the reservingof the right to take goldnecessarily implies the further reservation of fouling the streams. Indeed, every purchaser of land would necessarily take land subject to the easement of digging for gold and also the fouling of streams. The case of Ewart v. Cochrane, 7 Jur., N.S. 925, shows the kind of easement that may be annexed to land. Hall v. Lund, already cited, is also relied on for the same purpose;- These decisions are specially applicable to the sixth question. \ Mr. Justice Richmond : It is easier to imply an easement against a grantee than one for him. The miners' rights may be called the dominant tenement. ;.■•'.; Mr Macassey : Then it may be necessary to view the law of New Zealand. (The Goldfields Acts of 1858, 1862, 1866, and 1869 were then referred to.) I have already said if the reservation of Her Majesty's - rights are to be continued against the miners, then such reservation is void for repugnancy.' See Cuvillier- v., Aylwin, 2 Knapp, P.C. 72.; the Queen v. Byramjee," 5;M00i,"-P,C;;27.6. Mr. Justice Chapman old- doctrine laid down in the Year Books was that the prerogative was incommunicable to a subject; but that doctrine is not applicable now where there are colonies and governors exercisino- prerogative rights. ■.; The Attorney-General: • The Governor has the right of appointing Justices of the Peace, ' etc. ■■■'.: Mr. Macassey : As bearing on the question of prerogative, see in.re the Bishop of Natal, 3 Moo., P.0.,149.. The; absence of any provision for compensation is not to be construed against the defendants. The true questions are, have the defendants' statutory authority ? and have they properly exercised that authority ? It is no. answer to say that. the Legislature has not provided for compensation, or that private rights will be injured. A large class of cases affirm this doctrine. One of the first cases was in 1832—Rex v. Pease, 48. and Ad. 30. This case shows that private rights may be injured without compensation. There a statute authorised locomotives to be used, and though their use was a nuisance, in that it frightened horses on the highway, &c, still, as the statute had authorised them, there was no remedy. The Legislature, in fact, intended that some of the public should suffer so that the general public might be benefited. There are other cases bearing on the statutory powers of railway companies, and 'waterworks companies. See ■Vaughan v. c Taff Vale Railway Company, 29 L.J., Ex. .247•; Dunn v. the Birmingham Canal Company, L.R. 7 Q;B. 244, and also L.R. 8 Q.B. 842 ; Blyth v. the Birmingham Waterworks Company, 25 L.J., Exch. 212 ; Whitehouse v. Birmingham Canal Company, 27 L. J., Exch. 25. "A still more recent case clearly recognises, the rule that but for statutory authority, they were responsible, Jones v. the Festiniog Railway Company, L.R. 3 Q.B. 733. ~ Then a statutory grant and a right by prescription vest in the same principles, Madras Railway Company v. Zemindar of Carvetingarum, 30 L.T., N.S. 770., where it also was decided that the doctrine, of Fletcher y. Rylands was inapplicable where there was a prescriptive right." And now; as as to the express provisions of the Goldfields Acts. Other Acts have been passed by the Legislature, interfering .with private rights. The Otago Waste Lands Act, 1872, sec. 65; the Resumption of Land for Mining Purposes Act. The Goldfields Act, sec. 16, shows how pastoral tenants' rights may be dealt with. Mr. Justice,Richmond : It is not contended that the Legislature does not possess the power to deal with private rights, but only that the Court should so. construe the Goldfields Act that private rights should not be by implication affected unless compensation is payable. Mr. Macassey: Still when the Legislature had the possibility of a small freeholder at the Taieri Beach commencing an action against a miner sixty or seventy miles distant, surely it cannot be said that it intended such a state of things to exist as the maintaining of such an action. The Act provides no compensation except in glaring cases. See section 16 and section 21, sub-section 3.

Mr. Justice Richmond : Might it not be said that the Legislature contemplated mining on Crowrilands only, and polluting rivers on Crown land also. Mr. Macassey : The question is: Did the Legislature contemplate pollution would cease at the termination of the Crown lands boundary ? Mr. Justice Richmond : Did the Act contemplate pollution at all ? Mr. Macassey: Sub-section 9, section 11, clearly implies the pollution of streams. Mr. Justice Richmond : I suppose lands comprised in pastoral lease are Crown lands within the meaning of the Waste Lands Act. .;- Air. Macassey : That .is plain from many sections of the Act. Section 23 provides that miners are to get no compensation for damage* to their races by sheep and cattle. Mr. Justice Johnston: I should suppose that private lands are.the antithesis to Crown lands. Mr. Macassey : The Legislature in section 23 distinguishes between lands held under pastoral lease and private lands. It has been argued that granting the right to mine on Crown lands, and to pollute streams, if that is attended with any injury to private lands, then it is said the miner is liable. If this be true, then the whole intention of the Legislature is defeated. It is absurd to say you can mine and pollute streams on Crown lands, but once your polluted stream flows beyond the Crown lands boundary, and through or abuts upon private lands, the miners can be sued. The provisions for tail-races, and the power of wardens over them, shows that the pollution of streams must follow, and were the Court to yield to the argument advanced, mining enterprise would be • put an end to. .. Sections 2,6, 9, 10, also bear out the defendant's contention. The words used are, "use of water in mining for gold." Suppose a case of manufacturers—dyeing works for example —were the manufacturer clothed with similar powers, could it be said an action would lie ? That common law rights are abridged is plain from the whole scope of the Act, and hence the first question must be answered in defendants' favor. It is true the Legislature has not provided for compensation ; but it clearly saw that a certain result would accrue, and that is damages. Mr. Justice Chapman : There is, however, a distinction between diverting water and turning foul water into streams. Mr..Macassey: The question is: Did not the Legislature contemplate the infliction of an injury on private rights. ; Mr. Justice Chapman : It might not be construed as affecting freeholds, though if might affect pastoral holdings, as freeholds stand on a higher footing. Mr. Macassey : Still the miners can injure a pastoral tenant and he have no redress and no compensation; and can it be said that a man who is a pastoral tenant can have a polluted stream flow through his land without redress, but if he have a small patch of freehold lower down he can sue for that ? Mr. Justice Chapman : As affecting the freeholder's right to sue, the question of priority may be of importance, as it may be that a man who purchases a freehold, with sludge running through it, will have no right to sue. • . Mr. Macassey: That touches question six. It is Baid hs can injure land inside the goldfield's district, but once injury extends beyond the goldfield's boundary he must cease mining within the goldfield's district. Th 3 Legislature could not have intended this. The various sections showing that the Legislature contemplated interference beyond are sections 21, 24, 25, 26, 27, and section 2. Further, as sixth question, Grant v. Cochrane is applicable. Here the "nuisance " was visible. The plaintiffs purchased, ,well knowing the existence of a goldfield, and that " tailings " were carried down the river, and they pur- - chased subject to an easement in favor of the miners. Gayford v. Moffatt, L.R., 4 ch., App„. 133; Daviea v. Searl, L. R, 7 Eq. 427. Then

as to acquiescence. It has been contended that mere quiescence, does not amount to acquiescence. As to when quiescence may amount to acquiescence, see France and Others v. Filiated, decided by his Honor Mr. Justice Chapman; and Williams v. Earl of Jersey is an authority for the defendants' contention. The cases bearing on the doctrine of acquiescence are collected in the second volume of White and Tudor's Leading Cases in Equity, and it is not necessary to quote them at length. See also Drewry v. Marshall, 1 Drew and Son, Wood v. Sutcliffe; and as to the principle to be observed in reference to damages, see Wood v. Ward, 3 Exch., 7-1 S ; Hole v. Barlow, -1 C. 8., N.S. 321; St. Helen's Smelting Company v. Topping, 11 Hof. L. Cases 612. In the latter case Lord Crauworth said: —" There must be material damage." If, then, there is no proof of material damage by the defendants personally, and as distinct from others, the instruction to the jury or arbitrator must be that only nominal damages are recoverable. This must be the answer unless there is some direct proof to connect the defendants with the alleged injury. There are other questions arising in the case, but as I have alluded to most of them, and as Mr. Stout has to follow me, I shall not further detain the Court. The Court then adjourned till Monday.