MINING

Otago Witness, Issue 2371, 10 August 1899, Page 20

MINING

THE RIPARIAN BIGHTS QUESTION. The decision of Mr Justice Williams in the recent case of Dunn v. Nelson, without deciding anything new, adds another item to a considerable budget of law illustrating the position of matters between farmers and miners in connection with the fouling of streams upon which the former have riparian rights. The case of Borton v. Howe, decided in the Court of Appeal in 1875, settled the whole question so far as the rights of farmers outside the goldfields were concerned. The effect of that decision is set out in the judgments to which we refer hereafter. The Jutland Flat case really covered tbe same ground, but other questions had arisen in the interval. The chief point decided in that case was that long use of the river as a sludge channel by varying sets of miners did not confer upon miners settling from time to time in claims on its banks the right so to use it. The question to be decided last month was whether the same rule applied to riparian owners whose farms were situated within th« goldfields. His Honor finds no ground for distinguishing between the two classes, stating his reasons thus : The reasoning of the judgment of Mr Justice Chapman in Borton v. Howe leads to the conclusion that there would be no necessary distinction between the case of a freeholder within or without a goldfield. The Victorian case of Campbell v. Ah Chong (1 Aust. Jur., 35), mentioned in Mr Justice Chapman's judgment, was evidently the case of a freeholder within a goldfield. As pointed out in the answer to the first question in Eorton v. Howe, the then Goldfields Act had affected the rights of riparian proprietors within a goldfield by authorising the diversion of water for mining purposes, but this did not authorise the pollution of streams. In the case of Guffio v. Christian (1 N.Z. Jur., N.S., 96), which was decided by Mr Justice Johnston a few weeks after the decision in Borton v. Howe, it was held that the owners of a sluicing claim conducting their operations iv the ordinary way and without negligence had no .right to pollute the waters of streams within the goldfields outside their claim. In the case of Costello v. O'Donnell (1 N.Z.C.A., 105) a riparian proprietor within a goldfield was lield, on the authority of Borton v. Howe, to be entitled to maintain an action for polluting the stream. It is true that the distinction between land within and without a goldfield was not taken in argument, but the case was decided by Prendergast, C.J., and Eichmond, J. Richmond, J., was a party to the decision in Borton v. Howe, and the late Chief Justice Imd been counsel for the plaintiffs in the same case. It is to be presumed, therefore, that if a distinction had really "been intended to be made in Borton v. Howe between the two classes of land the distinction would have occurred to these learned judges. '

This is strictly in accordance with the judgment of the same learned judge in the case of Glassiord v. Reid, decided August 9, 1876, in which the following passage occurs : — " The case of Borton v. Howe appears to me " to decide three points — first, that the riparian " rights of landholders outside the boundaries " of a goldfield are in no way affected by the " Goldfields Acts ; secondly, that the riparian "rights of landholders within a- goldfield are' " affected only so far as the Goldfields Acts " or regulations empower the holders of miners' " rights to use the waters of streams on private " lands ; and thirdly, that there is nothing in " the Acts or Regulations conferring a. power "on miners to pollute streams. In deciding " these points the supposition that the auri- " ferous deposits could not be worked without " polluting the streams was expressly con- " sidered. It was argued that in Borton v. ! " Howe tho regulations as to tail races were j " overlooked. The 6th, 7th, and 9th paragraphs " of the case in Borton v. Howe state that the I " defendants there had acquired the right to j " construct tail races, and explained the mode ] "of using them. The principle that I deduce "irom Borton v. Howe is that if there is a " grant of a right for tho private benefit of the ; " grantee by virtue of a statute, then although " such right could not reasonably be exercised " without doing something further which must " injure a third party, yet that the grant would " not justify the exercise of such a right to " his injury, unless the Legislature went on " to enact that the persons to whom the right " was given might do the further injurious act "in exercising it. If this ia so there is nothing " in tho Act or regulations that I can discover " to justify fouling the water running*" .through, "private lands. The legulations allow tail- " race 3to be constructed, but there is nothing " to authorise the discharge of tailings on to " other people's property." Iv the recent case bis Honor further pointed out that this was the view taken by Parliament in empowering tbe Governor to, declare any water course to be j a sludge channel (for which it pays compensation), and in enacting that persons who obtain Crown grants after a certain , date shall not have the rights of riparian owners as against sucb persons as foul tbe streams passing their property by mining for gold. The whole question may now be regarded as set at rest: indeed, it was considered to be set at i rest more than 20 years ago fey the case jof Glassford v. Reid, but naturally miners continue to attempt to inine notwithstanding these decisions, as farmers j do not always complain, or, indeed, feel any inconvenience. The decision, though sufficiently disquieting to the mining interest, really introduces no new feature into the situation.