1892 this reservation was made in order to
of the public.

W

It was argued that the question of publ venience should be considered, and referenc argument used by the Privy Council in Lo sioners for the City of Sydney(1) that in th of the creek in the Sydney Land District have been useless to the Crown. Water useful in a place like Sydney, where stre water such a prime necessity in such a h such rights were valuable appears plain sum as £7,200 was in 1858 awarded to be of 135 acres of land abutting on the cree Waikato is concerned, but for the recent deposits under the river-bed, the granting really giving a valueless piece of land to ti as the right of navigation was preserved. venience has been felt by the bed being veste of it vested, in private owners. Further, t reserved access to the bed below the river, at the coal-seams save through private land course, no knowledge of the coal-deposits w sold, and the bed is otherwise useless to any o

The larger number of grants mentioned issued under "The New Zealand Settlements The New Zealand Settlements Act, 1865." passed to induce military settlers to occupy 1 districts; and no district was the scene of fighting than the Waikato. The preamble said, Whereas the Northern Island of the "Zealand has been from time to time subjec amongst the evil-disposed persons of the N "great injury, alarm, and intimidation

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TAUPIRI

COAL-MINES.

1892 this reservation was made in order to preserve the rights of the public..

It was argued that the question of public rights and convenience should be considered, and reference was made to the argument used by the Privy Council in Lord v. The Commissioners for the City of Sydney(1) that in the case of the grant of the creek in the Sydney Land District the stream would have been useless to the Crown. Water rights were really useful in a place like Sydney, where streams are few, and water such a prime necessity in such a hot climate. That such rights were valuable appears plain when such a large sum as £7,200 was in 1858 awarded to be paid to the owner of 135 acres of land abutting on the creek. So far as the Waikato is concerned, but for the recent discovery of coaldeposits under the river-bed, the granting of the bed was really giving a valueless piece of land to the grantee so long as the right of navigation was preserved. No public inconvenience has been felt by the bed being vested, or certain parts of it vested, in private owners. Further, the Crown has not reserved access to the bed below the river, and could not get at the coal-seams save through private land. There was, of course, no knowledge of the coal-deposits when the land was sold, and the bed is otherwise useless to any one.

The larger number of grants mentioned in this case were issued under "The New Zealand Settlements Act, 1863," and The New Zealand Settlements Act, 1865." These Acts were passed to induce military settlers to occupy land in disturbed districts; and no district was the scene of more determined fighting than the Waikato. The preamble to the 1863 Act said, "Whereas the Northern Island of the Colony of New "Zealand has been from time to time subject to insurrection "amongst the evil-disposed persons of the Native race, with "great injury, alarm, and intimidation of Her Majesty's "peaceful subjects of both races, and involving great losses of

life and expenditure of money in their suppression: And "whereas many outrages upon lives and property have recently been committed, and such outrages are still threatened, and

(1) 12 Moo. P.C.C. 473.

"of almost daily occurrence
And whereas the
"best and most effective means of attaining those ends would
"be by the introduction of a sufficient number of settlers
"able to protect themselves and to preserve the peace of the
"country." There was nothing in these statutes, under which
the grants were made, about the reservation of river rights.
It was at the time thought most desirable to get military
settlers in the Waikato, and the value of the river-bed was
never considered or referred to. There were therefore no cir-
cumstances referred to in the statutes that can aid in the inter-
pretation of these grants; and there is nothing in the Pro-
clamation, Orders in Council, or regulations made and issued
under these Acts that even hints that the beds of navigable
rivers, or the bed of the Waikato, was to be reserved.

I repeat, therefore, that I know of no circumstance external
to the grant, save the navigability of the river, that should
have made it desirable to reserve the bed of the river.
I may
add that in various cases that have come before this Appeal
Court it has been tacitly assumed that Lord v. The Commis-
sioners for the City of Sydney(1) was law, and that the beds of
streams and rivers in New Zealand belonged to private owners:
See Borton v. Howe(2); Costello v. O'Donnell(3); and The
Jutland Flat (Waipori) Gold-mining Company (Limited) v.
McIndoe(4). I am of opinion that so long as Lord v. The
Commissioners for the City of Sydney(1) is held to be law its
decision governs this case, and that no distinction can pro-
perly be made between streams or rivers not navigable and
rivers that are navigable though non-tidal. It would require, I
think, very grave consideration before a law of property so long
acted upon in this colony should be set aside, and before it
should be declared that a distinction should now, for the first
time in the history of the colony, be made between non-tidal
though navigable rivers and non-navigable rivers or streams.

As there is nothing on the face of the grant, and no extrinsic circumstance save the fact that the Waikato is a navigable river, to show a contrary intention to what usually flows from

(1) 12 Moo. P.C.C. 473.

(2) 2 N.Z. Jur. 97; 3 N.Z. C.A. 5.

(3) N.Z. L.R. 1 C.A. 109.
(4) 14 N.Z. L.R. 99, 111.

C.A.

1900.

MUELLER

V.

TAUPIRI COAL-MINES.

grants so worded as these are, I am of opinion that judgment should be entered for the defendant, with costs according to scale as if £1,000 had been claimed, and costs on the highest scale in this Court, and as from a distance.

WILLIAMS, J.:

This is an action by the Commissioner of Crown Lands for the Auckland District against the defendants for interfering by coal-mining with land beneath the bed of the River Waikato, which the plaintiff claims to be Crown lands. He prays that it may be declared that the bed and soil of the Waikato River from bank to bank, where the river flows along certain lands owned or occupied by the defendants, are vested in Her Majesty, and for other relief. The defendants are owners or occupiers of land on the banks of the Waikato River originally granted by the Crown by ten several grants. In each of these grants the land granted is described as being bounded on one side by the Waikato River. The defendants justify their mining under the bed of the river on the grounds that by the terms of each grant they are entitled under the grant to the land forming the bed of the stream ad medium filum aquæ. There are practically no facts in dispute, and the question for the Court is whether, in the circumstances disclosed in the pleadings and evidence, the contention of the defendants can be supported. The general rule of law in such cases has been stated on several occasions, and it is well expressed by Lopes, L.J., in Micklethwait v. Newlay Bridge Company(1). He says, "If land adjoining a highway or a river is granted, the half of "the road or the half of the river is presumed to pass, unless there is something either in the language of the deed or in "the surrounding circumstances sufficient to rebut that presumption; and this though the measurement of the property which is granted can be satisfied without including half of the road or half of the bed of the river, and although "the land is described as bounded by a river or a road, and notwithstanding that the map which is referred to in the grant does not include the half of the river or the road."

66

66

66

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(1) 33 Ch.D. 133, 155.