1875 OTHERS v. HoWE AND ances in respect of which this action has been brought) mining claims within the boundaries of or near to the plaintiffs' close or BORTON AND run; and the defendants further acquired the right to construct water-races and tail-races in connection with the said claims. It is to be assumed, for the purposes of this case, that the defendants lawfully acquired their claims, and the right to construct and use their water-races and tail-races; and that, in the prosecution of their enterprise as miners, they have been guilty of no negligence, but have merely used and adopted the ordinary methods of working and making available their mining claims, and have strictly adhered to all the provisions of the various Gold Fields Acts and the regulations made thereunder, in force in the Province of Otago. 7. In working the defendants' claims, it has always been practically necessary to remove and carry away, by means of sluicing, large quantities of earth, soil, and stones. This has been effected by bringing to bear the water supply conducted to the claims by means of the water-races before mentioned. The débris, known by the name "tailings," has been carried away from the claims by means of the tail-races. When so carried away, these tailings have, through natural and artificial agencies, found their way either into the streams, to the use of the waters of which, in their natural state, the plaintiff's claim a right, or into tributary streams flowing into them, and also into the said river, the effect being to foul the waters of the first-mentioned streams and of the river, and to render them unfit for the plaintiffs' cattle to drink, and for domestic purposes, and for sheep-washing. 8. The proclamation of the gold field, which was the foundation of the rights acquired by the defendants, was issued after the plaintiffs acquired their status as pastoral tenants-(as licensees as to part, as lessees as to other part)-and after they had acquired certain of their freeholds in respect of which they claim riparian rights and privileges, but before they had acquired others of their freeholds in respect of which they claim similar rights and privileges. It is to be assumed, therefore, that the riparian rights or privileges claimed by the plaintiffs came into existence at different points of time. 9. The defendants constructed their water-races and tail-races at very considerable expense, and the plaintiffs themselves or their agents were aware of this. The issue of some or one of the licenses (e.g. a license to construct a tail-race) was unsuccess 1875 OTHERS บ. fully opposed (before a Gold Fields Warden) by or on behalf of BORTON AND the plaintiffs; but, beyond such opposition, no proceedings were taken prior to the commencement of the present action, with a HOWE AND View to restrain the defendants from constructing the water-races and tail-races aforesaid. The parties being unable to agree upon a statement of facts upon the question of acquiescence, the Court is merely to assume that a case of acquiescence may be established upon a reference to an arbitrator as hereinafter is mentioned. OTHERS. 10. Should the Court be of opinion that the plaintiffs are entitled to recover in the present action, then the amount of damages to be awarded is to be referred to an arbitrator; but in case of disagreement in regard to the appointment of an arbitrator, then the damages are to be assessed by a jury. 11. Should acquiescence by the plaintiffs in the expenditure incurred by the defendants be held by the Court to be a bar to the claim made in the action, or a ground for mitigating damages, the arbitrator is to act upon that view. 12. Should the Court be of opinion that the plaintiffs are entitled to recover, the arbitrator or jury is to be guided by and to follow the measure of damages to be laid down by the Court. 13. Judgment for the plaintiffs or defendants is, by agreement, to be without costs on either side. The questions for the opinion of the Court are,— 1. Have the gold fields laws of this colony abridged the common law rights of a riparian proprietor, and sanctioned the use of natural streams of water in a manner and for purposes which would be actionable in England? 2. If the auriferous deposits on the gold field referred to belong to Her Majesty, and they cannot be worked without fouling and polluting the streams, can a freeholder maintain an action for polluting by gold mining under the existing laws a stream or river that flows past his freehold? 3. As holders of the pastoral license mentioned in the case, would the plaintiffs, before the surrender of such license and the obtaining of a pastoral lease, have had any right of action arising out of the fouling of the waters of the streams before mentioned by reason of mining operations conducted and carried on without negligence? 4. As lessees under "The Otago Waste Lands Act, 1866," have the plaintiffs such a right of action in respect of their leasehold? 1875 OTHERS v. 5. As freeholders, or owners in fee of land purchased by them before the proclamation of the gold field in which the defendants' BORTON AND claim is situate, have the plaintiffs such rights and privileges, as riparian proprietors or otherwise, as entitle them to maintain an action for the fouling of the waters of the streams, by reason of mining operations carried on and conducted without negligence? 6. As such freeholders in respect of land purchased by them after the proclamation of the said gold field, are the plaintiff's entitled to maintain such action, or did the plaintiffs purchase subject in law to an easement of necessity in favour of miners then lawfully working in the gold field, enabling them, by the use of tail-races, to discharge tailings into the said streams, or the tributaries thereof? 7. Are the plaintiffs entitled to maintain such an action as well in respect of their freehold or leasehold lands, upon which any of the said streams abut merely (without passing through), as in respect of their said lands respectively through which such stream passes or flows? 8. As in some of the Crown grants to the plaintiffs their land is described as, and as matter of fact is, bounded by a river, do the plaintiffs by reason thereof acquire any riparian rights, and, if any, such rights as prohibit miners discharging tailings into the river? 9. Should it be found by the arbitrator that the plaintiffs stood by while the defendants were engaged in constructing the waterraces and tail-races; that the plaintiffs knew of the progress of such works, and foresaw, or ought reasonably to have foreseen, that the ordinary use of the said races would result in fouling the said streams, and that the plaintiffs took no steps to restrain the defendants from completing their said races, or discouraged them (the defendants) from expending their money and labour thereon; would such facts furnish a legal answer to the action or to a claim for an injunction to restrain the defendants from continuing the injuries complained of, or would there be a ground for mitigating the damages? 10. Having regard to the practical impossibility of ascertaining to what extent the defendants have fouled the before-mentioned streams, as contradistinguished from the workings of the other miners, upon what principle are damages to be assessed against the defendants? HOWE AND OTHERS. 1875 11. If the plaintiffs are entitled to damages, in respect of what BORTON AND tenure or interest (as licensees, lessees, freeholders before, or OTHERS freeholders after, the proclamation of the gold field) are they so V. HOWE AND entitled? The Attorney-General (Prendergast) and James Smith for the plaintiffs; Macassey and Stout for the defendants. (3rd, 4th, and 7th December, 1874.) As the argument is reported in extenso in The New Zealand Jurist, vol. ii. p. 97, it is deemed unnecessary to report it again here. The following authorities and cases were cited in the course of the argument:— Angell on Waters, chap. xi.; Broom's Maxims, p. 5; Bainbridge on Mines, 56, 57; Shepherd's Touchstone, by Atherley, 260; Stockport Waterworks Company v. Potter (31 L. J. Ex. 9; 7 H. & N. 160; 3 H. & C. 300); The Queen v. Earl of Northumberland (Plowden, 310); Dovaston v. Payne (2 Hy. & Bl. 527); Lord v. Sydney Commissioners (12 M. P. C. C. 473); Davies v. The Queen (1 W. W. & A'B. 33; s.c. 1 Australian Jurist R. 22); Crossley v. Lightowler (L. R. 3 Ex. 279 on Appeal; L. R. 2 Ch. Ap. 478); Lord Norbury v. Kitchin (9 Jur., N.S., 132); Dickenson v. Grand Junction Canal Co. (7 Ex. 282; s.c. 21 L. J. Ex. 241); Mason v. Hill (3 B. & Ad. 304; 2 N. & M. 747; 5 B. & Ad. 1); Embrey v. Owen (6 Ex. 343; 20 L. J. Ex. 212); Harrop v. Hirst (L. R. 4 Ex. 43; 38 L. J. Ex. 1); Humfries v. Brogden (20 L. J. Q. B. 10); Queen v. Dallimore (L. R. 1 P. C. 13); Hall v. Lund (1 H. & C. 676; 32 L. J. Ex. 113); Wood v. Sutcliffe (2 Sim., N.S., 163); Goldsmid v. Tunbridge Wells Commissioners (L. R. 1 Eq. 161); Campbell v. Ah Chong (1 Australian Jurist R. 35); The Queen v. Bradford Navigation Co. (6 B. & S. 631); AttorneyGeneral v. Bradford Canal Co. (L. R. 2 Eq. 71); Attorney-General v. Corporation of Leeds (L. R. 5 Ch. 583); Sampson v. Hoddinott (1 C. B., N.S., 590); Suffield v. Brown (33 L. J. Ch. 249); Pyer v. Carter (1 H. & N. 916; 26 L. J. Ex. 258); Johns v. Rivers (2 N.Z. Ap. Cas. 344); Cooper v. Hubbuck (30 Beav. 160; 31 L. J. Ch. 123); Bankart v. Houghton (27 Beav. 425; 28 L. J. Ch. 473); Davies v. Marshall (10 C. B., N.S., 697; 31 L. J. C. P. 61); Bonshaw Mining Co. v. Prince of Wales Co. (Kerferd & Box's Digest, 255); Nightingale v. Daly (3 W. W. & A'B. Mining Cas. 7; K. & B. Digest, 397); Stevens v. Webster (3 W. W. & A'B. OTHERS v. OTHERS. Mining Cas. 23); The Great Extended Co. v. Hales (Mac. N.Z. 1875 Rep. 896); Maclean v. Macandrew (1 N.Z. Jur. 178); Balla- BORTON AND corkish Mining Co. v. Harrison (43 L. J. P. C. 19; L. R. 5 P. C. 49); Lyddall v. Weston (2 Atk. 20); Goold v. Great Western HOWE AND Deep Coal Mining Co. (2 DeG. J. & S. 600); Ewart v. Cochrane (7 Jur., N.S., 925); Cuvillier v. Aylwin (2 Knapp P. C. 72); The Queen v. Byramjee (5 M. P. C. C. 276); In re Bishop of Natal (3 M. P. C., N.S., 149); Rex v. Pease (4 B. & Ad. 30); Vaughan v. Taff Vale Railway Co. (29 L. J. Ex. 247); Dunn v. Birmingham Canal Co. (L. R. 7 Q. B. 244; s.c. L. R. 8 Q. B. 842); Blyth v. Birmingham Waterworks Co. (25 L. J. Ex. 212); Whitehouse v. Birmingham Canal Co. (27 L. J. Ex. 25); Jones v. Festiniog Railway Co. (L. R. 3 Q. B. 733); Madras Railway Co. v. Zemindar of Carvetingarum (30 L. T., N.S., 770); Attorney-General v. Gee (2 W. & W. Eq. 122); Mulcahy v. Walhalla Gold Mining Co. (2 A. J. R. 93); Gaved v. Martyn (19 C. B., N.S., 732); Carlyon v. Lovering (1 H. & N. 784); Rogers v. Brenton (10 Q. B. 26; 17 L. J. Q. B. 34); Robinson v. Blundell (Mac. N. Z. Rep. 683). Cur. adv. vult. JOHNSTON, J. (18th May), delivered judgment. His Honor began as follows :-Before delivering the judgment of the Court in this case, it is necessary that I should make a few preliminary observations. The case was called on towards the close of the sittings of the Court of Appeal in November last, at a time when, after unusually protracted and important business, some of the Judges were on the point of leaving this place for the purpose of attending to their judicial duties in their respective judicial districts. The Chief Justice had left before the commencement of the argument. Mr. Justice Gresson was obliged to retire shortly after its commencement; but the Court, consisting of Mr. Justice Richmond, Mr. Justice Chapman, and myself, were desired by the counsel for the parties, on account of the urgency and importance of the questions involved, to hear the argument out. The case was most ably and elaborately argued before us on the 3rd, 4th, and 7th of December last, by the Attorney-General and Mr. Smith for the plaintiffs, and Mr. Macassey and Mr. Stout for the defendants. At the close of the argument, as it was impossible for the Judges |