ALEXANDRA WATER SUPPLY.

Otago Witness, Issue 2975, 22 March 1911, Page 10

ALEXANDRA WATER SUPPLY.

LITIGANTS BEFORE THE COURT. A motion for an injunction and declaration as to water races in the neighbourhood of Alexandra came before his Honor Mr Justice Williams in the Supreme Court on the 13th The plaintiffs We<re the corporation and burgesses of Alexandra, and defendants Mary Christina Rivers, Edith Ann Rivers, and Ada Mary Rivers.. The statement of cliaim set out that in years past James Rivers had agreed to grant the corporation a tenth share in two water races and two dams, and gave permission to divert the water therein. The corporation was to get not less than one head 1 of water fit ffov domestic us© for £2OOO, but this was subject to* the corporation obtaining from the Government a loan of not less than £7OOO. Plaintiffs were to immediately pay £I2OO, and the balance of £BOO by reasonable progress payments. On August 12, 1902, James Rivers obtained an authority to divert 10 Government heads of water, and plaintiff obtained the £7OOO loan from the Government. Rivers covenanted, inter alia, to commence the erection of a dam at Speargrass Creek, and this he did. He also enlarged a dam at Stockyard Gully. Rivers also covenanted to keep the races and dams in good order. It was found that the water was not available for more than three months in the year, and plaintiffs acquired water rights elsewhere so as to supply the inhabitants of the borough. In acquiring these rights plaintiffs removed the pipes previously used, but maintained the branch race with the intention of disposing of the water which flowed into the dam to miners for mining purposes. Rivers had refused to allow the water to be diverted for this purpose, and had shut off the water flowing into the branch race; contending that the removal of the pipes had exonerated him from the obligations of the deed in existence. Plaintiffs had always maintained the branch race and the dam in a good and sufficient state of repair. Demands had been made to Rivers that he should allow one head of water to flow into the branch race, but he had neglected and lefusod to do so. Later Rivers had assigned and transferred his interest to the present defendants, and they had also refused to allow the one head of water to flow into the branch race, and plaintiffs had consequently sustained loss and damage. Plaintiffs therefore claimed to divert one head of water, and dispose of it as permitted by the acts; that they should have priority in the use of the water; and that an injunction be granted restraining defendants from shutting off the water from, the 'branch race. They also asked for a declaration as to whether a mining partnership existed between themselves and defendants with respect to the two races and two dams; and for an inquiry as to what damages they had sustained by reason of the refusal of defendants and James Rivers, and judgment for the amount of damages so found; also costs of the present action. The statement of defence was a denial that plaintiffs had always maintained the branch race and their own dam in a good and sufficient state of repair for the flow and receipt of the Government head of water referred to in the statement of claim; that on the facts and a true construction of the documents the plaintiffs were not entitled to any part of the relief claimed by them. An amended statement of defence contained a clause that the contract as alleged and sued on was not within the power or capacity of the plaintiff corporation, and was, therefore, ultra vires and void.

Mr J. H. Hosking, K.C., and Mr Ramsay appeared lor tho plaintiff corporation, and Mr W. C. MacGiegor for defendants. Mr Hosking said the facts wore practically admitted, except as to whether the branch race which the plaintiffs claimed to hold had been kept in repair. _ Shortly put, James Rivers had a water right, over 10 hoads of water, and the Borough of Alexandra, wishing to get water for domestic purposes, made a bargain with Rivers for the supply of one head out of the 10; that head to have priority. Upon the fact of the head of water the Borough Corporation raised a loan and constructed waterworks. After the works had been in operation for a few months the supply of water was found not to be there; owing to dry seasons. There was not more than three months' supply in the 12 months. The corporation then proceeded to obtain a supply from another quarter, and when that was secured the pipes conveying this one head were disconnected and had remained to some extent disconnected ever since.

His Honor: When wore they disconnected ?

Mi- Hoskins : mis disconnection was mace in June, 1909. so that there has been a disconnection for 18 months or more; Continuing. counsel said what was sought was a declaration that the obligation of Rivers to return the water into the borough’s race still existed. Thoro was also the question as to whether a mining partnership had

been created by the fact that the borough and Rivers owned rights between them. He (Mr Hosking) submitted there was none. Mr MacGregor: Well, it has already been determined that there is. Mr Hosking: I cannot find that the question of a mining partnership was brought before the court in any definite shape. In your Honor's judgment you have incidentally mentioned that a mining partnership had existed between the parties, but it was not a matter brought before your Honor. I shall ask yen to take the view that a mining partnership existing was not taken, into consideration, and I contend that such a partnership does not exist. Mr Hosking continued to address the court, and called evidence. Mr MacGregor said that, in order to ascertain whpther plaintiff was entitled to recover, it was necessary to look closely at the claim actually made. As to ths existence of a mining partnership, it had already been decided under previous litigation on this very instrument. In 1905 the plaintiff sued Rivers in the Warden's Court, at Alexandra, and in his judgment Mr Burgess expressed the opinion that the corporation was a co-partner with Rivers. Then the warden stated certain questions of law for the opinion of the court, and the questions were answered in favour of Rivers. Referring to the legal aspect of the case, Mr MacGregor eaid that, under the act of 1893, whenever two or more persons acquired a mining privilege, etc., a mining partnership might be deemed to exist between the parties. What waa claimed was a specific performance of a contract on certain terms alleged by plaintiff and denied bv defendant. In a con< tract which a plaintiff sought to have enforced as certain, fair, and just, and where he had duly performed his part of the contract, the plaintiff had to come promptly to the court for relief. These were the conditions which must precede any successful application for any specific performance. In the present case it was submitted '■ that the contract was neither certain, fair, nor just, and that the plaintiff had not duly performed its part of the contract binding ■, upon it, and had been guilty of extreme i dilatoriness in coming to the court. V Mr Hosking: All that should have been I

in the pleadings. I could have brought evidence to explain the delay. His Honor: I should not have thought you were going to raise a case of delay. Mr MacGregor, continuing, said the main defence was. that plaintiff had, in fact, long since abandoned the view of the contract which it now, after long delay, sought to enforce upon defendant's successors. Mr Hosking said that witnesses, in crossexamination, had not been asked any questions indicating that such a defence would be raised. His Honor said he thought the point should have been raised, and he asked Mr MacGregor whether he brought evidence as to this, or took it as admitted on the facte. Mr MacGregor replied that he took it on the facts. By removing 10 pipes plaintiff had put it out of its power to comply with the contract. ' . It was agreed that, if his Honor thought it necessary, Mr Hceking should call evidence as to this. Mr MacGregor pointed out that the gauge box had been allowed by plaintiff to get out of repair, and was useless; and that plaintiff now wished to dispose of the water to miners- for mining purposes at a reasonable rate, but that that was not part of the agreement with Rivers. His Honor reserved his decision.