('.A. 1900. MUELLER

V.

TAUPIRI

COAL-MINES.

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"tricts of the colony have entered into combinations and take up arms with the object of attempting the extermination or expulsion of the European settlers, and are now engaged in open rebellion against Her Majesty's authority: And whereas it is necessary that some adequate provision "should be made for the permanent protection and security "of the well-disposed inhabitants of both races, for the prevention of future insurrection or rebellion, and for the establishment and maintenance of Her Majesty's authority, "and of law and order, throughout the colony: And whereas the best and most effectual means of obtaining these ends would be by the introduction of a sufficient number of "settlers able to protect themselves and to preserve the peace

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of the colony: Be it therefore enacted," &c. If, therefore, it is to be presumed against the Crown that the intention was to grant the soil of the river, it must be presumed that the intention was to destroy the right of the various settlers to whom the lands were granted to the free use of the only highway practically available to them, and this intention must be presumed to have been formed in furtherance of a statute which owed its existence to a desire on the part of the Legislature to create in outlying and disturbed districts a class of settlers able to protect themselves and to preserve the peace "of the colony." It must also be presumed that the intention was to destroy the right of free navigation of the river to the Town of Cambridge, and to the villages and settlements upon the banks of the river. That this right was of no small importance appears from the evidence of James Lindsay, a witness called for the defendants, who says that from 1868 to 1886 he was practically manager for the Waikato Steamı Navigation Company, whose headquarters were at Ngaruawahia, nine miles further from the mouth of the river than the lands in question, and that that company alone owned some four or five steamers, which regularly traded upon the river from Port Waikato to Cambridge.

It appears to me that these considerations are more than ample to destroy the presumption which might otherwise arise from the application of the rule of the common law to

these grants. There are other considerations which lead to the same conclusion. The roads which intersect the granted lands are expressly reserved from the grants; those which abut upon the granted lands are not excepted. For the reasons already given the soil in these roads did not pass. Why, if the roads which existed upon paper only did not pass, should it be assumed that the river, the natural and only practicable highway, described in the same way as a boundary, did pass? The Crown owned the lands upon both banks of the river: is it to be assumed that the Crown, when granting a parcel of land upon one side of the river, intended to grant the soil of the river to its centre, retaining the soil of the other half? The evidence shows that the river was in parts shallow, and full of shifting sandbanks, and that it was encumbered by snags. Although navigable, it was evidently in such a condition as to make it a matter of importance that the Crown should maintain the actual physical control over the bed of the river, so that it might be deepened or otherwise improved. Even if a right of public navigation could be held to exist although the soil of the river was vested in the proprietors of the adjoining lands, such a right could not give the necessary power to control and improve the river for the purposes of navigation. For these reasons I think that, even if it could be held that the public right of navigation does exist in rivers the beds of which are vested in private proprietors, still, in the present case the circumstances displace any inference that the bed of this river was intended to vest in the proprietors of the adjoining lands.

It has been suggested that the evidence shows that the river had been dedicated as a public highway prior to the grants under which the defendants claim, and that such grants must necessarily be subject to the public right to use the river as a highway. Turner v. Walsh(1) is relied upon in support of this proposition. Even if it could be shown that a public right of navigation over the river had been acquired as against the Crown by user prior to the (1) 6 App. Cas. 636.

C.A.

1900.

MUELLER

v.

TAUPIRI COAL-MINES.

making of the grants under consideration, that ought not, in my opinion, to affect the construction of those grants. It is, I think, idle to suppose that, if such a right of navigation existed, and was recognised as being essential in the public interest, the Crown would have granted the soil in the river to private persons, and that without mentioning the existence of such a right. If such a public right of navigation existed by user, it ought rather, I think, to strengthen the inference that it was not intended to part with the fee in the bed of the river. It is, however, I think, plain that no such right existed. The lands in question, as is shown by The New Zealand Settlements Act, 1863," under which they are granted, were Native lands. When granted

these lands were taken from rebellious Natives under the

authority of this statute. Up to this point, therefore, the lands were Native lands, the owners of which were entitled to the full, exclusive, and undisturbed possession thereof guaranteed to them by the Treaty of Waitangi. These rights have from the time of the foundation of the colony been recognised by the Crown and by the Legislature. "The Native Lands Act, 1862," recites the treaty, and the rights of the Natives thereunder; and the whole of the legislation relating to Native lands up to the present day recognises the existence of these rights. These are also recognised by The Native Rights Act, 1865." The position of Native lands was, it seems to me, laid down with perfect accuracy by Mr. Justice Gillies in Mangakahia v. The New Zealand Timber Company (1) in these words: Theoretically, the fee of all "lands in the colony is in the Crown, subject, nevertheless, "to the full, exclusive, and undisturbed possession of their "'lands' guaranteed to the Natives by the Treaty of Waitangi, which is no such simple nullity' as it is termed "in Wi Parata v. The Bishop of Wellington." The case of Wi Parata v. The Bishop of Wellington (2) is not, as seems to have been thought by Mr. Justice Gillies, opposed to the view taken by him. The passage to which reference is made appears upon page 78 of the report: "The existence of the

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(1) N.Z. L.R. 2 S.C. 345, at p. 350. (2) 3 N.Z. Jur. N.S. S.C. 72.

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C.A.

1900.

MUELLER

V.

COAL-MINES.

"pact known as The Treaty of Waitangi,' entered into by "Captain Hobson on the part of Her Majesty with certain "Natives at the Bay of Islands, and adhered to by some "other Natives of the Northern Island, is perfectly consistent TAUPIRI with what has been stated. So far, indeed, as that instru"ment purported to cede the sovereignty-a matter with "which we are not here directly concerned-it must be "regarded as a simple nullity. No body politic existed capable of making cession of the sovereignty, nor could the thing itself exist. So far as the proprietary rights of "the Natives are concerned, the so-called treaty merely "affirms the rights and obligations which jure gentium vested "in and devolved upon the Crown under the circumstances of "the case." This passage simply denies any operation to the treaty as a cession of the sovereignty : it does not deny that it declared the existence of the proprietary rights of the Natives, although it puts those rights upon a higher footing than if they had stood upon the treaty alone. No doubt, as was held in this case and in Teira te Paea v. Roera Tareha(1), transactions with the Natives for the cession of their title to the Crown are to be regarded as acts of State, and are therefore not examinable by any Court; and any act of the Crown which declares, or, perhaps, merely assumes, that the Native title has been extinguished is conclusive and binding upon all Courts and for all purposes. This proposition is laid down in Wi Parata v. The Bishop of Wellington (2), but this passage is added, which exactly applies to the present case: Especially it cannot be questioned, but must be assumed, "that the sovereign power has properly discharged its obli'gation to respect and cause to be respected all Native proprietary rights." Applying this principle to the present case, it appears to me to be impossible to infer any dedication by the Crown so long as the soil in the river remained Native land and in the possession of the Native owners. To do so would be to assume that the sovereign power has not respected, but has improperly invaded, the Native proprietary rights.

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(1) 15 N.Z. L.R. 91.

(2) 3 N.Z. Jur. N.S. S.C. 72, at p. 78.

C.A. 1900. MUELLER

V. TAUPIRI

COAL-MINES.

I have dealt with this question at length, but it appears to me that it has already been decided by this Court in Moore v. Meredith(1), where the point was directly decided with reference to a road. Further, it appears to me upon the facts, and for the reasons stated in the case last mentioned, that it is impossible to hold that there had been a dedication, either by the Natives or by the Crown, prior to the grants. At page 166, after dealing with the facts in the particular case, the law was laid down by the Court in these words: 'They" [the Natives] "certainly had no power to create a “right in perpetuity over these lands. This would be equally

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the case if the effect of the reserve at the time of the "cession was simply to leave unextinguished the Native title in the land reserved. It is difficult to see how, in this state of the title, any dedication by the Natives I would be possible; nor could there be an implied dedication by the Crown by mere user, because, the land being "in the occupation of the Natives with the consent of "the Crown, persons passing over the land with the per'mission of the Natives would not be treated by the Crown as trespassers. The presumption of dedication from user

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"arises from the circumstance that the owner of the land has stood by and has allowed what was in fact a trespass to be continued for a long time without objection. 'There is no evidence of any concurrent action of the Natives and the Crown, the Natives agreeing to cede their rights to the Crown, and the Crown dedicating.'

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For these reasons, and upon the several grounds which I have mentioned, I think that the plaintiff is entitled to the judgment asked for in the prayer of his statement of claim, with costs in the Court below to be fixed by the Court below, and in this Court upon the highest scale and as upon a case from a distance.

MARTIN, J.: :

I am of opinion that the plaintiff is entitled to judgment as asked for in the statement of claim.

(1) 8 N.Z. L.R. 160.

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