1876.

THRELKELD

V.

BLACKETT AND OTHERS.

certain sheep and lambs depasturing upon the said lands, and the expense incurred by him in removing the water from his said land.

PLEA.

1. That the Provincial Council of the Province of Canterbury, on or about the 7th day of May, 1873, by resolution passed pursuant to the provisions of "The Canterbury Rivers Act, 1870," decided that all that part of the Province of Canterbury therein and hereinafter mentioned and described, that is to say,-All that portion of the province commencing at, &c., should be constituted a district for the purposes of "The Canterbury Rivers Act, 1870;" that the name of such district should be "The Mandeville and Rangiora Drainage District," and that the number of Conservators for the said district should be five.

2. That the part of the said Province of Canterbury above described comprises the parcels of land mentioned in the first paragraph of the declaration.

3. That forthwith, on the said resolution being passed, the Superintendent of the Province of Canterbury took the necessary steps provided by the said Act for the construction of a Board of Conservators for the said district.

4. That before the committal of the alleged wrongful acts and grievances mentioned in the declaration, the said defendants, Henry Blackett, Malcolm Duncan, Edward Mulcock, and Charles Young, and one James Guild, were duly appointed and elected a Board of Conservators for the said district pursuant to the said Act, and continued to be and were such Board until and at the time of the committal of such alleged wrongful acts and grievances.

5. That so soon as the full number of members of the said Board had been filled up as aforesaid, and before the committal of the alleged wrongful acts and grievances aforesaid, the said Superintendent, by proclamation in the New Zealand Gazette and the Gazette of the said province, declared the said Board to be duly constituted.

6. That the said alleged wrongful acts and grievances mentioned in the declaration were done and committed by the defendants Henry Blackett, Malcolm Duncan, Edward Mulcock, and Charles Young, and the said James Guild, acting as and being such Board of Conservators of the said district as aforesaid, and under and in exercise and exccution of the powers and authorities

v.

BLACKETT

conferred on and vested in them as such Board of Conservators of 1876. the said district as aforesaid by the said Acts, and not otherwise; THRELKELD and that the works and things complained of in the declaration were such as the said defendants, acting as such Board, might AND OTHERS. lawfully do and perform under and in exercise and execution of such powers and authorities as aforesaid; and that it became and was necessary, for the purposes contemplated by the said Act, and for carrying into effect the objects for which the said district was so proclaimed and the said Board was so constituted as aforesaid, that the defendants, acting as and being such Board, should do, perform, and execute the works and things complained of in the declaration.

7. That the said defendants Robert Hawthorne and Henry McCutchen did the acts complained of as the servants and by the command of the said defendants Henry Blackett, Malcolm Duncan, Edward Mulcock, and Charles Young and the said James Guild, as such Board of Conservators of the said district as aforesaid, and not otherwise.

Demurrer stating that a matter of law intended to be argued is, that "The Canterbury Rivers Act, 1870," does not authorize the obstruction or diversion of the River Cust in the plaintiff's declaration mentioned, or any river.

JOINDER IN DEMURRER.

The plaintiff gave notice that on the argument he would rely on the following matters of law :

1. That "The Canterbury Rivers Act, 1870," does not authorize the commission of the acts and things complained of in the plaintiff's declaration.

2. That it is not alleged and it does not appear that the River Cust in the plaintiff's declaration mentioned is within the Mandeville and Rangiora Drainage District in the defendant's plea mentioned.

3. That it is not alleged and it does not appear that the said alleged wrongful acts were done and committed within the said district, or that the Board in the defendant's plea mentioned had any authority to do and commit the same outside of their said district.

4. That it is not alleged and does not appear that the acts and causes of action complained of were nccessary for the purpose of

1876.

providing for the making, repairing, and maintaining of protective THRELKELD Works to prevent or lessen any damage which might be occasioned by the overflow or by the breaking of the banks of any river within AND OTHERS. the said district.

v.

BLACKETT

5. That it is not alleged and does not appear that the said alleged wrongful acts and causes of action were made and done for the more effectually defending and securing any lands or tenements within the district against the irruption or overflowing of any river, or for draining or carrying off any superfluous fresh waters within the district.

6. That it is not alleged and does not appear that the said River Cust was under the control and management of a Board of Conservators in the defendants' plea mentioned.

7. That, assuming the said alleged wrongful acts to be authorized by the said Act, it is not alleged and does not appear that the consent in writing of the plaintiff was obtained by the said Board before doing the said acts complained of.

8. That, assuming as aforesaid, it is not alleged and it does not appear that the said Board has contracted and agreed with the plaintiff as to the amount of compensation to be paid to him by reason of the said alleged wrongful acts, or that the amount of such compensation has been settled in manner provided by the said Act, or that there has been any payment or legal tender of any amount as a compensation for the losses and damages admitted to have been sustained by the plaintiff through the acts of the defendants or the said Board.

The demurrer was argued on the 28th day of September, 1875, by Garrick for plaintiff, and Joynt for defendants; and on the 22nd day of October, 1875, Johnston, J., gave judgment overruling the demurrer.

The judgment is reported in 1 N. Z. Jur., N.S., p. 61.

Garrick and Dr. Foster, for the appellants.

This is an appeal against a judgment of the Supreme Court on a demurrer to a plea. The seventh and eighth grounds of demurrer will not be relied upon.

The first six grounds embody the question whether the Act of 1870 and the incorporated Act of 1872 authorize the performance of the works complained of in the declaration, and whether the matter relied upon as a defence is sufficiently pleaded.

The first substantial point in the case is that the Acts relied upon do not authorize the defendants to divert a river.

1876.

THRELKELD

v.

BLACKETT

"The Canterbury Rivers Act, 1870," s. 26, defines what is within the jurisdiction of the Board. "As far as is necessary for the AND OTHERS. purpose of providing for the making, repairing, and maintaining of protective works to prevent or lessen any damage which may be occasioned by the overflow or by the breaking of the banks of any river within any proclaimed district, whether such river shall or shall not in any part thereof be navigable, or be altered by the flow or ebb of the tide,-such rivers, and all streams, sewers, and watercourses which now do or hereafter shall or may, directly or indirectly, communicate with any such river, and all walls, banks, culverts, bridges, dams, floodgates, and other works erected or to be erected, in, upon, over, or adjoining to any such rivers, and all other protective works, shall be, from and after the time of the incorporation of the Board, to all intents, construction, and purposes, within and subject to the jurisdiction of the Board of the district within which the same may happen to be, or for the protection of which the same may be erected or made."

The 28th section restrains the scope of that provision by providing that Road Boards are to have the control till it is taken over by the Conservators. Section 27 defines the powers of the Board, and says, "It shall and may be lawful for the Board to decree and ordain any works, aids, and defences, or any alteration in the gauge, dimensions, course, direction, or situation of any old or existing works, aids, and defences, to be constructed, made, or done for the more effectually defending and securing any lands or tenements within the district against the eruption or overflowing of any rivers, or for draining and carrying off the superfluous fresh waters according to the discretion of such Board; and also in like manner, and at their discretion, to decree and ordain any former works, aids, or defences against any rivers, streams, sewers, or watercourses within their jurisdiction to be abandoned and given up, and new works, aids, and defences to be made and continued in lieu thereof; and any such aids and defences may be erected, made, and maintained by the Board without their district, if, in the opinion of the Board, they shall be required for protecting any lands or tenements within the district."

What is complained of is the damming and diverting of a river beyond the district.

1876.

v.

BLACKETT

It is submitted that the maintenance of protective works does

THRELKELD not include the damming and diverting of a river. It is ancient law that it is illegal to divert a watercourse unless the diversion be AND OTHERS. authorized or justified by particular circumstances. (Angell on Waters, s. 97.)

There is nothing said about diverting a river in the preamble or enacting clauses of the Act.

A statute in derogation of the rights of the subject is, in its nature, a private Act, and is to be construed differently from a public Act.

An Act of Parliament establishing a Court of Requests for claims against persons residing in a particular district, was held to be a public local and personal Act within the 5 and 6 Vict. c. 97, s. 5, relating to limitations of action. (Cock v. Gent, 12 M. & W. 234.) So a Building Act was held to be of a local and personal nature, in Richards v. Easto (15 M. & W. 244).

Powers given by such an Act must be strictly pursued; and those on whom they are conferred are restricted to what is necessary for the purpose of carrying out the Act, and cannot go beyond it. (Colman v. The Eastern Counties Railway Company, 16 L. J. Ch. 80.) Macey v. The Metropolitan Board of Works (33 L. J. Ch. 377) illustrates the same doctrine. In Simpson v. The South Staffordshire Waterworks Company (34 L. J. Ch. 380), it was held that a public company, claiming statutory powers, must prove clearly and distinctly, from their Act of Parliament, the existence of those powers; and if there is any doubt as to their extent, that doubt must operate for the benefit of the landowner interfered with.

In the 4th section of the Act of 1873, which gives powers of borrowing for the more effectual protection of the lands within the jurisdiction of the Board, nothing is said about diversions of

water.

In the next place, the defence is not well pleaded under the New Zealand Rules of Court. It may be admitted that the plea might have been good in form in England-Beaver v. Mayor of Manchester (8 El. & Bl. 44), where a plea that the matters complained of were lawfully done under the powers of an Act was held good. (See also Watkin v. The Great Northern Railway Company, 16 Q. B. 961.) But it does not comply with the New Zealand Rules of Practice, r. 43 and r. 76. To comply with rule 43, the