and Crushing Company v. The Cravens New Chum Company(1); Clemison v. Mayor of West Harbour (2). See also The Plumstead Board of. Works v. The British Land Company(3). H. D. Bell and Tunks, for the defendant: The simple question is, what passed by the Crown grant? The onus in all such cases is on the party disputing the common-law rule and presumption to show that the presumption is displaced by an indication of a different intention. There is only one rule of construction: Glen on Highways(4); Bythewood's Conveyancing(5); Sheppard's Touchstone(6). If the river is described as a boundary and not merely adjoining, the soil passes ad medium filum aquæ: Berridge v. Ward(7). The Plumstead Board of Works v. The British Land Company(3) is not in point: the road there was described as adjoining. The area added is immaterial: Micklethwait v. Newlay Bridge Company (8). The description of the land by metes and bounds, and the reference to a coloured plan excluding the river, does not affect the matter, nor does the width of the river: Dwyer v. Rich(9); Tilbury v. Silva(10); In re White's Charities(11). Lord v. The Commissioners for the City of Sydney(12) is conclusive that the rule of construction is to be applied to a British colony as in England, and that it applies to a grant from the Crown. The Privy Council has held that it is bound by that case: Cooper v. Stuart (13); and it is not open to this Court to challenge the effect of the case. A passage in Kent's Commentaries(14) implies that nothing less than an express provision in the grant will rebut the presumption; and the passage is adopted in, Lord v. The Commissioners for the City of Sydney(12). There is no evidence of intention on which the Court can act. The fact that navigation takes place on the (1) 10 V. L.R. (L.) 233. (5) 4th ed. Vol. v. 191. (6) 8th ed. 88, 89. (9) Ir. Rep. 4 C.L. 424; Ir. Rep. 6 C.L. 144. (10) 45 Ch.D. 98, 108. (12) 12 Moo. P.C.C. 473. C.A. 1900. MUELLER v. COAL-MINES. surface of the water in no way rebuts the presumption : Murphy v. Ryan(1); Hale, “ De Jure Maris "(2). There is no use in the Crown retaining the soil of the river, as the public rights are preserved if it passes to the grantee. The TAUPIRI bed of the river was of no use to any one until coal was discovered beneath it. If the size of the river is to be taken as indicating the intention of the Crown, where is the line to be drawn? If the ownership of the bed is in no sense useful for the purposes of navigation this case is indistinguishable from Lord v. The Commissioners for the City of Sydney (3). All the common-law rules as to alluvium-accretion and flow of water depend on the right of the riparian owner to the bed of the river ad medium filum aquæ, If the river moves from its present bed the riparian owner could not, if the bed is in the Crown, pass over it to enjoy his undoubted riparian rights. The question of the alveus of this river has no public importance. There is no question of public convenience involved. Findlay, in reply: There is a necessary distinction between a grant from a private person and one from the Crown: Elphinstone, Norton, and Clark on the Interpretation of Deeds(4). If the grant is from a private person the bed of the river is useless to the grantor. But the Crown is trustee for the public. It may be necessary to deepen the river to improve the navigation. A mere right to navigate only enables obstructions to be removed. It cannot be laid down that the width of a river is not a circumstance that can be considered. STOUT, C.J.: — Cur, adv. vult. In this case I have the misfortune to differ in opinion from the other members of the Court. The question involved is whether grants from the Crown of Crown lands bounded by the Waikato River, and so described in the grants, give the bed of the river usque ad medium filum aque to the grantees. (1) Ir. Rep. 2 C.L. 143. (2) Caps. 1, 2, 3. (3) 12 Moo. P.C.C. 173. MUELLER บ. TAUPIRI COAL MINES. 66 There are several grants, but the form is as follows: "We, do hereby grant unto all that 66 parcel of land in our Provincial District of Auckland, in the "Colony of New Zealand, containing by admeasurement fifty acres, more or less, and being allotment Number One in the Parish of Taupiri, Banks County: bounded towards the "north by a road one hundred links wide, one thousand two "hundred and sixty links; towards the north-west by a road 66 of width aforesaid, six hundred and seventy links; towards “the east by a line, three thousand three hundred and ninety"four links; towards the south by a line, one thousand four hundred and sixty-six links; and towards the west by the I Waikato River." Then there is the reservation, "Inter"sected from north to south by a road of width aforesaid "hereby reserved through the said allotment." 66 The Waikato River is one of the largest rivers in the colony, and is navigable for many miles. It is not tidal opposite to the land granted. The river has been used for navigation purposes for boats, canoes, and small river-steamers-for many years, and it is suggested that there has been acquired by dedication and by user the right of navigation: See Turner v. Walsh (1). The river had been used for navigation long before the proclamation of sovereignty over the colony (in 1840), and it has been continually used for this purpose up to the present. The common law as to fresh-water rivers is laid down in De Jure Maris as follows: "Fresh rivers of what kind soever "do of common right belong to the owners of the soil ad"jacent, so that the owners of the one side have of common "right the property of the soil, and, consequently, the right of "fishing, usque filum aque, and the owners of the other side the right of soil or ownership and fishing unto the filum aquæ on their side." How this right is bestowed is thus stated in Kent's Commentaries(2): “But grants of land bounded on rivers, or upon "the margins of the same, or along the same, above tidewater, carry the exclusive right and title of the grantee to (1) 6 App. Cas. 636. 66 (2) Vol. iii. 537 66 C.A. 1900. MUELLER บ. TAUPIRI "the centre of the stream, unless the terms of the grant clearly denote the intention to stop at the edge or margin of "the river; and the public, in cases where the river is navi"gable for boats and rafts, have an easement therein, or a COAL-MINES. right of passage, subject to the jus publicum as a public “highway.”. It is further stated, "It would require an express exception in the grant, or some clear and unequi"vocal declaration, or certain and immemorial usage, to limit "the title or the owner, in such cases, to the edge of the "river.” 66 Kent is quoted as an authority on the question raised, and as correctly stating the common law, by the Privy Council in Lord v. The Commissioners for the City of Sydney(1), and in many English and Irish decisions. In the United States of America some States have followed the common law as thus laid down in Kent, and some have not; some have made a distinction between rivers capable of navigation, though nontidal, and rivers not navigable. Reference to American cases is therefore of little use. In my opinion we cannot speculate as to whether this rule of the common law should or should not have been applied to New Zealand. The Privy Council, our highest tribunal, has decided that if in a colony a grant from the Crown describes land as bounded by a stream, one-half of the soil of the bed of the stream goes to the grantee: Lord v. The Commissioners for the City of Sydney(1). It is not denied that this decision has been recognised as binding on the Courts of New Zealand, and that property has been bought and sold and occupied on the assumption that that was the law. It is sought not to displace the general law so laid down, but to limit its application to rivers or streams that are non-navigable and non-tidal. If a river is navigable-though non-tidal-by boats, canoes, or small steamers, it is said that this rule of the common law should not apply. I do not know on what principle this differentiation between rivers and streams can be made. Nowadays we have become so accustomed to the interference of the State in (1) 12 Moo. P.C. 473. C.A. 1900. MUELLER V. TAUPIRI COAL-MINES. mare currunt. New Zealand in so many directions in which in other nations There are two points, then, to be considered-(a) the grant itself; (b) the external or extrinsic circumstances existing in the colony when the grants were made. The Privy Council said regarding a grant, "It is always a "question of intention, to be collected from the language used, "with reference to the surrounding circumstances." In the case of The Plumstead Board of Works v. The British Land Company(2) Blackburn, J., said, "Then, Mr. Prentice con"tends, and cites cases to this effect, with which I quite agree. "that where there is a plot of land conveyed adjoining to "a road or river, the prima facie presumption is that up "to the medium filum aquæ aut via, whichever it may be, "belongs to the purchaser, and it is not enough to rebut "that presumption to say that it is designated as adjoining to or abutting on that road or river-and this even if there was a mention of the acreage: but, on the other hand, "it is said to be enough where there is anything to show "that it was not the intention to convey any part of the "road." There is nothing in the language used in these grants showing that it was the intention of the Crown to alter the usual rule, and not to grant the soil of the river bounding (1) 12 Moo. P.C.C. 473, (2) L..R. 10 Q.B. 16, at p. 24. |