THE GRAVEL QUESTION.

Poverty Bay Independent, Volume I, Issue 39, 22 August 1885, Page 2

THE GRAVEL QUESTION.

CLARK V. MULDOON. On the assembling of the Court yesterday morning, His Worship proceeded to give judgment in the above case. He said on account of the importance of the subject, and the great interest which had been manifested therein, he had taken time to carefully consider the facts of the case. The sole question at issue was whether the soil from whence the gravel was taken was Crown or private property. The Harbor Act of 1878, section 147, seemed to settle the question fully as to the Crowns rights, and read as follows : —“ No part of the shore of the sea, or of any creek, bay, arm of the sea, or navigable river communicating therewith, were and so far up as the tide flows and reflows, nor any land under the sea, or under any navigable river, except as may already have been authorised by or under any Act or Ordinance, shall be leased, conveyed, granted or disposed of to any Harbor Board, or any other body (whether incorporated or not) or to any person or persons, without the special sanction of an Act of the General Assembly.” This showed that the Crown’s interest extended as far as the tide flowed and re-flowed, He would now revert to the evidence on this point given by a number of witnesses whose word was entitled to the greatest respect and credence. Mr Clark had sta'.td in his evidence that there was no back flow, and Mr W. Smith, who knew the locality and had had an intimate acquaintance with the place for upwards of fifteen years, was positive that the water did notr 1 flow backwards. Mr Sunderland also had stated that the stream always ran seaward and W. Morrice and ]. Price had never seen the water flowing in any other direction but seaward. A Robb, Steggall and Nicholl had only seen a rise and fall, while Mr Chrisp had asserted that the fresh water was backed up. The evidence of these credible witnesses was very plain on the point that there was no upward flow of the river at the point indicated. On the other hand Mr Muldoon had stated that there was a rise and fall, but this might be the effect of backing up. The evidence of Jones, Twohey, Kane, and the fisherman Parks was to the effect that the tide rose, and Young had stated that the tide flowed up. The evidence of a large number of trustworthy witnesses, whose word could not be doubted was that there was no upward tide. The test had been made when the water was perfectly clear and could not be doubted. They certainly had the evidence of Stevenson that the tail board of his dray had floated up the river, but he had not stated that it wasaui deep water and like Jone's bos<?Wfc might have been at the side in shallow ’ water. It was well known that frequently when a stream was running down there was a shore eddy, caused by the reflux, running the other way. No doubt all had frequently seen such a thing. The evidence was to the effect that though the tide rose and fell yet there was no upward current but only a backing up of the fresh water. The Act pointed out very clearly where the Crowns title extended to—viz,, to where there was a flow and reflow of the tide. Under these circumstances he was compelled to give judgment for the plaintiff. As this was a test case the damages would only be nominal and 1 he should assess them at is, each party to pay their own costs.