WATER RIGHTS.

Otago Witness, Issue 2735, 15 August 1906, Page 48

WATER RIGHTS.

AN IMPORTANT JUDGMENT.

On Saturday morning his Honor Mr Justice Cooper delivered judgment in the special case stated for the opinion of the court by Mr J. M'Ennis, warden, in the matter of an application at Blacks by Alexander Purvis and Margaret M'Donald, of Ida Valley, objected to by Margaret Elizabeth Cinnamon. When his Honor heard argument, Mr W. C. MacG-regor appeared for Purvis and M'Donaid, and Mr John MacGregor for Miss Cinnamon. The judgment was as follows: — The facts axe shortly these : Miss Cinnamon has a registered water right for one head of water for irrigation and domestic purposes out of a watercourse known as Muddy Creek. This creek is a small creek carrying very little water for the greater part of the year, and st times is quite dry. The natural course of the creek is through the applicants' lands until it joins the Poolburn, a much larger oreek. Ths applicants, requiring water for the purposes of watering their stock and for domesSc use, have applied to the warden for an order under section 117 of " The Mining Act, 1905, that a specified quantity of water, not exceeding one sluice-head, shall be- allowed to flow in the natural channel or bed of the creek for public use. aifd this is objected to by Miss Cinnamon. From the point where the objector's water race lifts down to the Poolburn, Muddy Creek passes through no other lands than the lands belonging to -the two applicants, and if an order were made it would be of no use or benefit to any other persons than the applicants. The question staged for the opinion of the court is* " Under -these circumstances would water ordered to be allowed to flow on down in the flatural course of the oreek be for public use within the meaning of section 117 of the Mining Act of 1905? Shortly, the question is this : " Has the warden jurisdiction to make the order applied for?" There is no property in flowing water in a natural watercourse, but riparian proprietors have certain natural rights appurtenant to their ownership of the land through or along which the stream flows. All riparian proprietors have a right to the reasonable use of the water as it flows r-ast or through their lands, but this righ>t must be exercised with a due regard to the interests of other persons who have land lower down the stream. Assuming, therefore, that the stream ran through or along Miss Cinnamon's land, her right to use the w4ter as a riparian proprietor above tho applicants' would be controlled by the applicants' right to have the stream flow, subject to the reasonable user by Miss Cinnamon, through their lands. Assuming, therefore, that she was a' riparian proprietor, and that she had obtained no license for a race under the Mining Act, but had diverted thp water from tho stream, she would have been bound to have returned the water to the stream, so that the applicants, as lower riparian proprietors, could have in their turn the benefit of the water. The provisions of " The Mining Act, 1905," interfere with these common law rights by permitting licenses to be granted to take and use water from running streams or other watercourses by means of water races, and Miss Cinnamon has erucb a license. These licenses or water rights are. howeve», themselves" subject to certain restrictions, prescribed under the statute. Subsection D of section 116 provides that no license shall be deemed to confer any right to the use of water as against any person requiring a reasonable quantity of water for his own domestic use, and if any question arises as to what is a reasonable quantity the warden shall decide. By sub-section H of the cam« section, in any case where the Governor is satisfied that the water diverted or used under any license is required by bona fide settlers, or for any public use or purpose, he may revoke such license, and cause such water to be restored to its natura.l channel. This right of revocation, if exercised, entitled the licensee to full compensation for all loss or damage thereby sustained. And by section 117. which is the section upon which the answer to this special case depends, in any case where any race or dam is fed by a watercourse the warden may, on the application of any person, being jthe owner or lawful occupier of any land on, through, adjoining, or within three chains of which such watercourse exists or runs, order that any specific quantity of water not exceeding cne sluice-head shall be allowed to flow in the natural channel or bed of such watercourse for public use. These restrictions are the evolution of a series of statutory provisions commencing in " The Goldfields Acts Amendment Act, 1865." Subsection 10 of section 18 of that act provided that no license should be granted under the authority of that act for the use or diversion of any water which was cr might be required for public purposes -or for the use of miners generally, and sub-section 2 prescribed that two sluice-heads should, if required, be at all times allowed to flow in the natural course of a creek or river for " general use." These provisions were repeated in " The Goldfieids Act, 1866." In "The Gold Mining Districts Act, 1871," there first appeared the power of the Governor to revoke the license if the water was required for any " public use or purpose." All the above provisions were continued in

The Gold Mining Districts Act, 1873." "The Mining Act, 1886," repeaJed the act of 1873 and its amendments, but enacted somewhat similar provisions, prescribing arlso a reservation from the license of water required by any person for his domestic use, and giving to the owner of tho property through which the stream passed the right to acquire the licensee to allow two sluice-heads to flow down the stream for general use. I think there can be no doubt that under that sub-section the use of the water required by the owner for his own purposes was within the term " general use," and that it would have been no answer to the " owner's " requisition that no other person but the " owner " was interested in the use of the water. "The Mining Act of 1891" repealed the act of 1886, and re-enacted all the foregoing provisions, reducing, however, the quantity of water which the owner could require the licensee to let down into the stream to one sluice-head. Then came "The Mining Act. 1898," re-enacting the provisions reserving water for domestic use, the power of tha Governor to revoke a license if the water was required for bona fide settlers or for any public use or purpose, and, in lieu of the provision for one sluice-head contained in "The Mining Act of 1891," enacted section 102, which has been exactly followed in section 117 of "The Mining Act of 1905. Tho differences between this section and the corresopnding section in the act of 1891 are: (1) That an order from the warden is necessary, whereas, before, a requisition from the "owner" was all that was required; (2) the cla»s of persons who are entitled to apply is extended to ihe occupier of the land or the adjoining iand, and to the owner or occupier of land within three chains of the watercourse; (3) the warden has a discretionary power to order a specified quantity of water,

not exceeding one sluice-head, to be let down, whereas, before it was a fixed quantity of one sluice-head; and (4) the words "public use" are substituted for "general use." But although the Legislature has used the words " public use " in place of the words " general use, and has enlarged the classes of persons referred to in the enactment, and has interposed the warden and given power to him to limit the quantity of water to less than a, sluicehead, in my opinion the words " public use" have a limited meaning, and are satisfied if any one of the classes of persons referred to in the section require the warden to act. In other words, I think the term " public use," as used in section 117, means the use of any of those classes of the public particularly referred to in the section — namely, the owners-, or occupiers, of land through which, or adjoining which, or within three chains of which, the watercourse runs. This construction is strengthened by the terms of subsection h of section 116, in which the words " public use or purpose are used. These words, as here used, plainly mean for the uee of the publio generally, or for any generally recognised public purpose. And if the license is so revoked, then the licensee has a right to full compensation out of the public revenues. But the object of section 117 is to give to particular members of the public having a personal interest in the use of the water by reason of their ownership or occupation of land in the proximity of the watercourse, a right, without any liability to pay compensar tion, to apply to the warden for an order compelling the licensee to allow a limitedquantity of water to flow in the natural bed of the stream for the use of all or any of the classes of such owners or occupiers, such quantity not only being limited to one sluicehead, but being still further liable to be restricted at the discretion of the warden. I think that the term " public use" there used has no higher meaning than the phrase "general use" appearing jn the previous acts; and as in those acts that term had evidently a much more restricted meaning than the term " public use or purpose," and referred to user by the particular class mentioned, so I think the Legislature has in the acts of 1898 and 1905 intended the term public use" to have a similar restricted meaning,' and to apply to the user by one or other of the particular classes mentioned in section 117. It is only one or other of these classes who are entitled to make the application. The cases , cited during the argument do not appear to me to assist in the construction of the section, and I form my opinion upon the terms of the act and the light thrown upon its provisions by the previous. legislation _on the same subject. I answer the question stated by the warden as follows:— The warden has jurisdiction, under section 117, to entertain the application and to order the objector to allow a specifiea quantity of water not exceeding one sluicehead to flow in the natural channel or bed of the watercourse known as Muddy Creek. Applicants allowed three guineas costs.