THE APPEAL COURT.

Otago Witness, Issue 2151, 16 May 1895, Page 20

THE APPEAL COURT.

THE WAIPORI CASE. (By. Otra Special Reporter.) Wellington, May 8. Conticu'ng his argument iv the Jutland Flat Company's caae this morning, Dr Fmdlay further analysed the legislation since the case of Botton v. Howe with the view of showing tlut mining rights h<vv« since been steadily extended as again s L . the ruh'a of owners of sg.-tcuUural and pastoral lauds. With regard to deposit of silt in the river and lake, he conttnded that if pollution was just fi»d silting could not be actionable. Further, the bsd of the river and lake were Crown lands on which appellants had a right to deposit tailings. The duc'.rine that the be.l of a river was vested in the riparian proprietor up to the middle lino of the stream was not applicable to the colony, as every natural watercourse wa? a public draiu under the Public Works Act. On all grounds urged, counsel submitted, ap^eltauts were entitled to the judgment of the court. Mr F. R. Chapman, in opening the case for the respondent, said that the ca.ee made at the trial was t hit, although certainly foaling ha«l gone en for many years, progressive diminution had taken place, owing to the falling off in mining, until about two years ago, when a large increase took place en the resumption of mining by moans of large dredges. It was immaterial to ! what extent the appellant company's dredgo contributed to the killing : it was sufficient that it wns one of the contributors ; it was, in fact, the largest individual contributor. The case of Burton v. Howe was the law of the colony on the subject, aud all subsequent icgif-lution had proceeded on the assumption that it was slill the law. Cites showed that the law on the subject was the same in England, in Scotland, and in America. As to acquiescence, respondent could not be said to have stood by while the company expended money. Tb.9 company's dredge was 20 miles above him in another distticb, and he knew nothing of their claim or dredge until the s.i ff began to come down upon him. It h*d always been assumed iv the colony tbat the b> d of a stream was vested in the riparian proprietors. In any case much of the rilt had in this case been deposited on and bejond tho banks on what was undoubtedly respondent's land. The cases which had been oited as to tbo immunity of corporations exercising statutory powers applied only to public bodies exerci-ing functions for the public benefit, and not to companies foe mere private profit. The whole legislation up to 1893 upon taking watercourses for sludge channels proceeded on the assumption that they could not be übkl as such unless properly taken and compensation paid ; and although recent legislation had undoubtedly favoured the mhiing inttrest, something much more specific would be rrqured to alter the law as laid down in B rton v Ho»e. Fmther argumeut; will be he?rJ to-morrow. May 9. Mr Chapman continued bis argument for the respandeut in the Jutland Fiat Company's case this morning. He contended fiat if a dredging claim under the mining a' t$ and regulations bad any frprcial right to foul a river the company's claim was rot a dredging c^a'm, bub an ordinary extended claim. A dadging claim wrs one for working (he bed of the river only. The company's claim gave a right to cut away the banks and deal with many acres outside of

the river bed, aud the company could have no greater rights than ftn ordinary eluiciug claim, The prescription act did not give tho Crown aT)y new righta, the Crown not being expressly named. Cases as to prescription in respeob of mines shewed tbat a particular mine only, and not a whole field, could be treated as a <k<miDant tenement. In every case of prescription the dominant tenement muflfc be closely deflned. la the present case this waß impossible. Assuming that there could be prescription, still the extent of the right must be limited by the actual user. Apast uee could not ju-fcify theiutroduc'ion of a totally new kind of machinery causing greatly increased fouling. This wa3 a use ot a new olia r aoter for which no prescription could be claimed. Tho doctrine of riparian proprietorship to the middle line of the stream applied to the co'.ooy. Though the Pubic Works Act made every na'ural water oourse a public drain it did not vest the bed of a ttreatu in a coun*y. Evidenoe showed that the Waipori river was navigable atr Berwick, and that navigation bad been stopped by the silting. Tbia was a public nuisance, and no prescription could give a right to conliauo its. Mr Hoskirg's reply eccupied the afternoon. He dealt with the general effect of the evidence and the questions of prescription, 6t:itulory authority, and tho right to an injunction. The court took time to consider its judgment.