the land ad medium filum aquæ, Are there any extrinsic circumstances that can show an intention to reserve the soil in the bed of the river? The 'circumstance mainly relied on is that the river is navigable, and has been navigable and used for boats and canoes, and latterly for steamers, during the whole history of the colony, and perhaps for ages before it was a colony. Is the mere navigability of the river to displace the commonlaw rule? If so, then it is clear the common law does not apply to this colony, for it makes no difference between rivers non-tidal but navigable and rivers not navigable. We have in this colony large rivers like the Rakaia, the Waitaki, and others that have a large river-bed-in places their bed is a mile wide—but the fall of the river is so rapid and the bed is so widespread that continuous navigation is impossible. Is the owner of land on one side of such a large and wide river to have the soil usque ad medium filum aquæ, and the owner in a stream perhaps a tenth of its size, like the Avon or the Taieri, not to own the bed because boats, or small steamlaunches, or small steamers can navigate it? I do not think any such distinction has ever been recognised. On the contrary, it has been assumed in the three kingdoms- in England, in Scotland, and in Ireland - that the mere fact that the river was navigable though non-tidal did not affect the ownership of the bed of the river. Many cases may be referred to, but three only need be cited: Rex v. The Mersey and Irwell Navigation Company(1) (English); Orr-Ewing v. Colquhoun (2) (Scotch); Murphy v. Ryan (3) (Irish). (3) Ir. Rep. 2 C.L. 143. (1) 9 B. & C. 95, 109. (2) 2 App. Cas. 839. VOL. XX-7. C.A. 1900. MUELLER v. TAUPIRI COAL-MINES. A river may be used as a highway notwithstanding that the bed belongs to private individuals. No question can now be raised about the River Waikato being a highway, as it has been used as such for over sixty years, and no attempt has ever been made to prevent navigation. At the time of the grant the river had, counting from the proclamation of sovereignty over the colony, for more than twenty years been used as a highway, and such user would surely be evidence of dedication by the Crown and all Native owners who had any rights of the river as a highway (see Turner v. Walsh) when the grant was issued. Dedication does not require a long term of years. The Crown in New Zealand encouraged navigation of the Waikato, and one of the grievances of rebel Natives before the war was that the Government put a steamer on the river. The Crown allowed private individuals to navigate, and encouraged them to do so, long before any of these Crown grants were issued. Unless, then, it can be said that the fact of private owners owning the bed is inconsistent with the right of navigation, the navigability of the river is not an extrinsic circumstance that should show an intention in this grant not to grant the bed of the river to the grantee. Another extrinsic circumstance was the right of fishing. A public right of fishing cannot be acquired by user - See Blount v. Layard(1): Smith v. Andrews(2); Murphy v. Ryan (3)-in a non-tidal though navigable river. But there were no fisheries in the Waikato at the time of the grant. Maoris may have fished for eels in the river, but eels are caught in small and non-navigable streams flowing into the Waikato and it is not suggested that the existence of such fish or other indigenous fish would prevent a grant of land carrying the bed of a stream if it bounded the land granted. No rights of fishery have ever been asserted by the owners in New Zealand: such rights are unknown in any rivers. There were no indigenous fish in rivers that were thought worth fishing. Then, it is said that by our law the soil of all highways is vested in the Crown. This is by virtue of our statutes. In (1) (1891] 2 Ch. 681 (note). (3) Ir. Rep. 2 C.L. 143, 1876 was passed the first statute that enacted that the ownership of all roads is in the Queen. It said, "All roads are hereby declared to be and are hereby vested in Her Majesty." The very fact that express legislation has dealt with roads, and not with streams or navigable rivers, tends to the conclusion that it was not desired to alter the common law, rather than that the common law had been abrogated. Two statutes dealing with rivers and watercourses may be referred to. They are "The Highways and Watercourses Act, 1858," and "The Provincial Councils Powers Extension Act, 1863." Both were repealed in 1876, and were not, therefore, law when some of the grants were issued. They were passed to extend the powers of our provincial Parliaments that were in existence up to the end of 1876, and their preambles say -clause 1 of the 1858 Act says "It shall be lawful for "the Superintendent of any province, with the advice and "consent of the Provincial Council thereof, by any law or "Ordinance to be made or ordained for that purpose, to "authorise and empower the Superintendent to divert or stop "up any public street, river, highway, or thoroughfare in any "such province; and also to divert or stop up any river, "stream, or creek in such province, and to build bridges, "dams, wharves, and other erections on the bank or in the "beds of any such river, stream or creek; and also to sell, exchange, or otherwise dispose of the land over which any "such public street, road, highway, or thoroughfare was laid "out or passed, or the bed of streams, rivers, or creeks so 66 "diverted or stopped up.' The Act of 1863 says, "When ever any law or Ordinance shall be passed by any Pro"vincial Council for the purpose of authorising the making "or carrying-out of some work of utility to the public, or "to the inhabitants of some particular town, village, or dis"trict, such law may, so far as may be necessary for the "making or carrying-on of such work of utility, affect any public street, road, or highway, or the bed of any river, "stream, or creek, although the same respectively may be "in the hands of the Crown, everything in the said re"cited Constitution Act to the contrary notwithstanding: C.A. 1900. MUELLER V. TAUPIRI COAL-MINES. Provided that any such law or Ordinance affecting any "part of a navigable river, stream, or creek shall be reserved "for the signification of the Governor's pleasure therein." They were no doubt passed to allow the Provincial Councils to deal with highways and rivers that belonged to the Crown, and which they could not deal with without such legislation, for the Constitution Act, 15 & 16 Vict., c. 720, prevented provincial Parliaments interfering with Crown land. The Acts were to extend the ambit of the legislative powers of the provincial Parliaments: but the provincial Parliaments under these Acts had no power given to them to affect the land of private individuals without awarding them compensation; and it will be noticed that they empowered provincial Parliaments to deal with all streams or watercourses. If, then, these statutes are invoked to show that the bed of a navigable river like the Waikato was not meant to be granted because Provincial Councils could pass laws to affect the bed of such a river, and even sell the bed, the same argument would apply to all streams. These statutes do not, therefore, give any assistance in differentiating navigable rivers from ordinary streams. At the time these statutes were passed the majority of the rivers and many highways were vested in the Crown; but it is a matter of history that hundreds of private individuals have been compensated for water rights under Acts authorising the taking of water for public. purposes from streams, &c., in cases where the owners had received grants before and after 1858. There is in these statutes no limitation of the right of the Crown to grant the beds of rivers to private individuals. If these statutes had made a distinction between navigable rivers, though non-tidal, and streams, there would have been some validity in the reference to these statutes; but if these statutes can be used to show an intention not to part with the beds of navigable rivers, the same intention could be inferred as to the parting with the beds of mere streams. Various statutes have been passed by the Parliament in which the private ownership of streams has been acknowledged, and provision made for compensating riparian owners C.A. 1900. MUELLER TAUPIRI who have been deprived of their water rights. Reference may be made to The Mining Act, 1891," sections 151, 152, 153, and 154. Section 155 of this statute says, No person who since the twenty-first day of October, one thousand eight COAL-MINES. hundred and seventy-five, has purchased or acquired. or shall **hereafter acquire any Crown land under any law for the "time being in force regulating the sale or acquisition of such "land shall be deemed to have any right or title to the flow **of any watercourse which shall have been at any time pro-. claimed under section 2 of The Goldfields Act Amendment "Act, 1895,' nor under," &c. 66 The Goldfields Act referred to gave power to the Governor to proclaim any river, stream, creek, pool, or any portion "thereof or any tributary thereof," a watercourse into which tailings, mining débris, and waste water of every kind used in or discharged from any claim shall be suffered to flow or to be discharged. If the Crown land had been sold opposite to such rivers, &c., compensation has to be paid (see section 4). The words are, 66 All persons, being owners of or having any lesser estate or interest in any land through, in, or past which any such watercourse (i.e., river, stream, &c.) may flow, whose rights may be injuriously affected shall be entitled 66 66 In the Act of 1891 persons who had purchased land in or past which any river, &c., flowed were entitled to compensation if the river, &c., was proclaimed a watercourse for tailings, &c. No distinction is made in the statutes between navigable and other rivers. Further, it may be pointed out that in The Land Act, 1885," section 98, the Legislature assumed that the sale or grant of land up to the boundary of the water would grant the ordinary riparian and other rights of an owner who had a grant of land to the boundary of the stream, and hence the reservation by law to the Crown of the right to foul the stream and to deposit tailings in the bed. It is only since the Land Act of 1892 that a survey regulation to reserve a chain along the banks of navigable streams and large streams has been carried out, though in many cases prior to |