H Jones & Co Pty Ltd v Municipality of Kingborough - [1950] HCA 11 - HCA 1950 case summary — Zoe

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H Jones & Co Pty Ltd v Municipality of Kingborough

[1950] HCA 11

High Court of Australia|1950-07-01|Before: Fullagar JJ

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Court

High Court of Australia

Decision date

1950-07-01

Before

Fullagar JJ

Source

Original judgment source is linked above.

Judgment (123 paragraphs)

[1]

High Court of Australia Latham C.J. Dixon and Fullagar JJ. H Jones & Co Pty Ltd v Municipality of Kingborough [1950] HCA 11

[2]

ORDER Appeal of plaintiffs allowed with costs. Judgment of Supreme Court discharged. Declare that the plaintiff H. Jones & Co. Pty. Ltd., as the owner of the lands known as Brookfield, the plaintiff Worsley as the owner of the lands known as Willowbrook and the plaintiff Klingler as the owner of the lands known as Rocklyn are respectively entitled to the use of the waters flowing in a defined and natural channel in the North West Bay River as such waters have been accustomed to flow down to the plaintiffs' lands subject only to the lawful user of the said waters by riparian owners higher up upon the said stream. Declare that the works under construction by the defendant and the scheme and undertaking proposed to be conducted by it for the diversion and supply of water from the said stream to residents in the townships and districts of Margate and Snug are contrary to the respective rights of each of the plaintiffs. Order that the defendant its servants agents and contractors be restrained from further constructing the said works and from obstructing or diverting the water of the said stream so as by such further construction or obstruction or diversion to interfere with the rights of the plaintiffs so declared. Defendant to pay the plaintiffs' costs of action. Appeal of H. Jones & Co. Pty. Ltd. as to counterclaim allowed with costs. Counterclaim dismissed with costs. Case remitted to Supreme Court with liberty to apply to Supreme Court.

[9]

The plaintiffs complain that the proposed water scheme of the municipality will deprive them of a quantity of water to which they are entitled as riparian proprietors. The defendant municipality in the first place alleges that the plaintiffs or their predecessors in title have been paid compensation for loss of their riparian rights. Secondly, the defendant municipality claims that it is entitled to take water from the stream for the purpose of supplying it to consumers under both the Towns Act 1934 Tas., s. 37, as a council, and under the Local Government Act 1906 Tas., s. 209, as a council having the care, management and control of a water district. The plaintiffs reply that the compensation was paid and received under the Hobart Water Act 1905 in respect of prejudice to riparian rights by reason of the Hobart Town Council taking water and that such compensation bears no relation to any action of the defendant which diminishes the remaining flow of the river. This answer is decisive and I say no more about this particular defence. To the defence based upon the powers of the defendant under the Towns Act the plaintiffs reply that those powers are limited to the supply of towns with the consent of the Governor and that the consent of the Governor has not been obtained and, further, that the proposals of the defendant extend beyond the towns of Margate and Snug. The plaintiffs also rely upon a provision in the Towns Act 1934, s. 37, that the powers conferred upon the council are "subject to the provisions of any law determining the rights of the Crown and of riparian proprietors in the waters and bed of any lake, river, stream, or creek." As to the Local Government Act 1906 the plaintiffs contend that s. 209, upon which the defendant relies, does not apply to the council because the water district through which the river runs and of which the council has the care, management and control was constituted only on 7th May 1947 and was not a water district which "heretofore had been controlled and managed by the council." Further, the plaintiffs rely upon the express provision in s. 209 that the right of the council to control and regulate the supply of water under that section is "subject to the previously existing rights of any riparian proprietors to the use of the water flowing in any such river, creek, or watercourse," i.e. in any river &c. within such a water district.

[15]

The council claims to be entitled to proceed under this section with its scheme for water supply because it has the care, control and management of the Margate and Snug water district. The water district, however, of which by virtue of s. 209 a council has the care, control and management under the section is a water district within the municipality "which heretofore has been controlled and managed by the council." The Margate and Snug water district was constituted on 7th May 1947 and therefore was not a water district which "heretofore" (that is before the enactment of the Local Government Act 1906) had been controlled and managed by the council. The section vests in the council every river etc. within the limits of "every such water district" if not vested in some other authority or excepted by notification of the Minister. Similarly the provision that the council shall have the absolute control and regulation by artificial means of the supply of water is declared to be subject to the previously existing rights of any riparian proprietor to the use of the water flowing "in any such river, creek or watercourse." The provisions of s. 206 with respect to petitions for the constitution of a water district show that Parliament did not think that it was limiting the application of the Act to water districts which had existed before the enactment of the 1906 Act. If the words of s. 209 were uncertain in meaning a court would be justified in resolving the uncertainty by a reference to the intention of Parliament disclosed in s. 206. But there is no uncertainty of meaning in the word "heretofore" and that word cannot possibly be regarded as a misprint or clerical error. It is highly probable that the legislature has not said what it meant to say, but the function of a court is limited to interpreting and applying what the legislature has in fact said, whether it meant to say it or not. In my opinion a court has no authority to assume the function of correcting Acts of Parliament. Section 209 quite distinctly and most precisely confers powers upon councils in respect only of streams in water districts which before the enactment of the Act had been controlled and managed by the council. The court must take the provisions of the statute as it finds them and cannot amend the statute in order to accord with what is thought to be, however reasonably, the real intention of Parliament. All the provisions of s. 209 apply only to rivers &c. in a water district which was controlled and managed by a council before the enactment of the Local Government Act 1906. As the Margate and Snug water district was constituted after that Act, s. 209 confers no rights upon the council of the defendant municipality. If this interpretation of s. 209 is correct the matter requires the attention of the legislature.

[19]

In Embrey v. Owen [3] , the court explained the nature of the riparian right to have a stream of water flow in its natural state without diminution or alteration as being an incident to the property in riparian land. This right, however, was subject to the like right of other proprietors. It was recognized [4] that many uses of water consumed some of the water. In Australia the use of water for irrigation very frequently uses up all the water which is taken out of a stream for that purpose. In the present case, for example, none of the water which is used for irrigation by the two plaintiffs who irrigate, namely the company and Klingler, is returned to the stream. In Embrey v. Owen [5] it is said that the law in England was not clear as to the extent of user by way of irrigation which would be permitted and Parke B. [6] added, "nor do we mean to lay down that it would in every case be deemed a lawful enjoyment of the water, if it was again returned into the river with no other diminution than that which was caused by the absorption and evaporation attendant on the irrigation of the lands of the adjoining proprietor. This must depend upon the circumstances of each case. On the one hand, it could not be permitted that the owner of a tract of many thousand acres of porous soil, abutting on one part of the stream, could be permitted to irrigate them continually by canals and drains, and so cause a serious diminution of the quantity of water, though there was no other loss to the natural stream than that arising from the necessary absorption and evaporation of the water employed for that purpose; on the other hand, one's common sense would be shocked by supposing that a riparian owner could not dip a watering-pot into the stream, in order to water his garden, or allow his family or his cattle to drink it. It is entirely a question of degree, and it is very difficult, indeed impossible, to define precisely the limits which separate the reasonable and permitted use of the stream from its wrongful application; but there is often no difficulty in deciding whether a particular case falls within the permitted limits or not; and in this we think, that as the irrigation took place, not continuously, but only at intermittent periods, when the river was full, and no damage was done thereby to the working of the mill, and the diminution of the water was not perceptible to the eye, it was such a reasonable use of the water as not to be probibited by law. If so, it was no infringement of the plaintiffs' right at all; it was only the exercise of an equal right which the defendant had to the usufruct of the stream." In Swindon Waterworks Company v. Wilts and Berks Canal Navigation Company [1] , Cairns L.C. stated the law in the same way: - "Undoubtedly the lower riparian owner is entitled to the accustomed flow of the water for the ordinary purposes for which he can use the water, that is quite consistent with the right of the upper owner also to use the water for all ordinary purposes, namely, as has been said ad lavandum et ad potandum, whatever portion of the water may be thereby exhausted and may cease to come down by reason of that use. But farther, there are uses no doubt to which the water may be put by the upper owner, namely, uses connected with the tenement of that upper owner. Under certain circumstances, and provided no material injury is done, the water may be used and may be diverted for a time by the upper owner for the purpose of irrigation. That may well be done; the exhaustion of the water which may thereby take place may be so inconsiderable as not to form a subject of complaint by the lower owner, and the water may be restored after the object of irrigation is answered, in a volume substantially equal to that in which it passed before."

[35]

It was held in the Supreme Court that the Hydro-Electric Commission Act was a general Act dealing with water and that the relevant provisions contained in Part XV. of the Local Government Act 1906 relating to water districts were special provisions dealing with the rights or powers of councils in respect of water. The maxim generalia specialibus non derogant was applied, with the result that the Hydro-Electric Commission Act 1929 was held not to supersede or modify in any way the relevant provisions of the Local Government Act. In my opinion both Acts are general Acts and the maxim is not applicable. The Local Government Act, Part XV., which contains s. 209, cannot be regarded as an exception to the general provisions of the Hydro-Electric Commission Act. Both Acts apply substantially to the streams &c. and they are inconsistent with each other. The Local Government Act is an Act dealing generally with local government in many aspects and the later Hydro-Electric Commission Act is, as its title declares, a general Act intended to vest the sole right to use water in lakes &c. in a Commission. The Hydro-Electric Commission Act is intended to deal generally with the subject of public control of water. This is shown by the fact that it is in this Act that a provision is contained (s. 50 in the 1929 Act and s. 66 in the 1944 Act) preventing the acquisition of water rights by any presumption of a lost grant. So also s. 51 (s. 67 in the 1944 Act) provides that to the extent to which the right to the use of the water in any lakes &c. is vested in the Commission, the Commission, if the Governor so directs, and subject to such conditions as the Governor may determine, shall permit any person to be designated by the Governor to use such water for any purpose. It should be noted that permission under this section is a permission to use water "for any purpose." These general words include the supply of water to the inhabitants of a water district, and therefore such permission is necessary before the council can exercise any powers which it may possess under any other statute so to supply water. Thus the Hydro-Electric Commission Acts show by their terms that they were intended to prevail over other statutes except in cases of direct statutory grants. The council has in fact applied to the Commission on 25th September 1945 for permission to use water for its intended scheme and the Commission consented to such use, but by a letter dated 9th April 1946 has made that consent subject to any riparian rights lawfully held on 18th January 1930 - a plain reference to the introductory words of s. 65 (1) of the Hydro-Electric Commission Act 1944 which re-enacts, with an amendment introducing the date mentioned, s. 49 (1) of the Act of 1929.

[54]

It is enough to cite two statements of authority. First there is the statement by Lord Macnaghten in Young & Co. v. Bankier Distillery Co. [1] , "The law relating to the rights of riparian proprietors is well settled. A riparian proprietor is entitled to have the water of the stream, on the banks of which his property lies, flow down as it has been accustomed to flow down to his property, subject to the ordinary use of the flowing water by upper proprietors, and to such further use, if any, on their part in connection with their property as may be reasonable under the circumstances. Every riparian proprietor is thus entitled to the water of his stream, in its natural flow, without sensible diminution or increase and without sensible alteration in its character or quality. Any invasion of this right causing actual damage or calculated to found a claim which may ripen into an adverse right entitles the party injured to the intervention of the Court." Next there is a passage in the judgment of the Privy Council delivered by Lord Kingsdown in Miner v. Gilmour [2] : - "By the general law applicable to running streams, every riparian proprietor has a right to what may be called the ordinary use of the water flowing past his land; for instance, to the reasonable use of the water for his domestic purposes and for his cattle, and this without regard to the effect which such use may have, in case of a deficiency, upon proprietors lower down the stream. But, further, he has a right to the use of it for any purpose, or what may be deemed the extraordinary use of it, provided that he does not thereby interfere with the rights of other proprietors, either above or below him. Subject to this condition, he may dam up the stream for the purpose of a mill, or divert the water for the purpose of irrigation. But, he has no right to interrupt the regular flow of the stream, if he thereby interferes with the lawful use of the water by other proprietors, and inflicts upon them a sensible injury." It is hardly necessary to say that what an upper riparian proprietor may not do is unlawful in a stranger to the stream, as the defendant municipality would be if its proposed works lacked statutory authority.

[59]

On 7th May 1947 the Governor-in-Council proclaimed the tract of land already mentioned to be a water district within the municipality of Kingborough within the meaning and for the purposes of Part XV. of the Local Government Act 1906. In my opinion the defendant municipality must for its justification rest upon this statutory authority. There is no other that will suffice. I shall therefore deal with it at once. The Local Government Act 1906 is entitled an Act to consolidate and amend the law relating to Local Government. Part XV., which is headed "Water District," does not correspond with any previous statute. It appears to have been drafted for the purposes of the Act of 1906. A number of special Acts existed creating water districts in different parts of Tasmania and the policy in part embodied in Part XV. seems to have been to place these districts under the authority of the municipal councils to be set up under the Act of 1906 and make a general provision under which new water districts might be established without the necessity of seeking special parliamentary authority. But the transfer to the council of control of then existing water districts is dealt with in part elsewhere in the Local Government Act 1906. By s. 22 (4) it is provided that as from a date proclaimed by the Governor-in-Council the control and government of any existing water district within a municipality established under the Act of 1906 should pass to the council, which should have the powers and be subject to the liabilities of the trustees or other former governing body and should be vested with the assets and rights of such body. Part XV. opens with two general provisions prescribing the course to be followed in setting up new water districts - ss. 206 and 207. A petition is to be presented to the Governor-in-Council by a council of a municipality or the councils of two or more municipalities praying that a tract of land within its or their boundaries should be constituted a water district. After due notice by public advertisement the Governor-in-Council may grant the petition in such modified extended or amended form as he may think fit.

[60]

Section 208, which follows, deals with the manner in which water districts are to be governed when two or more councils are the petitioners and deals also with their powers. Section 209 then proceeds to provide for the control and regulation of water districts by councils. A basal question in the case is in my opinion the meaning of s. 209. As that is so and as the chief importance of s. 208 is the light it throws on the meaning of s. 209 it is perhaps better before examining these two sections to state shortly the effect of the remaining provisions of Part XV. Section 210 makes applicable to the purposes it defines the borrowing powers conferred elsewhere in the Act upon councils. They are defined as the purposes of constructing and maintaining works and appliances for the storage and distribution of water within the area of any water district within the municipality. Sections 211 and 212 confer power to levy and enforce a water rate. Section 213 gives the council three heads of power. One is to enter upon land within the water district for the purpose of constructing locks, dams, wells, water channels and tanks and for works in connection therewith. Another relates to locks, dams and embankments already constructed for retaining water and authorizes the council, subject to compensation, to take possession of them, alter them and remove them. The third concerns the level or flow of the water in locks, dams, wells or works; it empowers the council to alter, vary or regulate in manner prescribed such level or flow. Section 214 deals with the supply by the council of water to be used within the water district. It says the council shall supply such water but reduces the obligatory force of the word "shall" by adding "for such purposes, to such persons, upon such contracts, at such prices and generally upon such conditions as the council may think proper." The section goes on to confer some more specific authorities in aid of this power and it enables the council to contract to supply water outside the water district. Section 215 then provides that no council shall supply water for irrigation or for any other purpose until all persons entitled to a supply from such council for domestic or stock supply purposes have been first supplied by such council. The word "entitled" probably refers not to any absolute right but to that kind of obligation which the word "shall" in s. 214 contemplates as resting on the council and to the confident expectation which is felt by a ratepayer connected with a water system that his supply will continue. But the provision is, I think, directed to supply by the council through its system; not to the flow of water down natural creeks and streams in quantities sufficient for the domestic use of riparian owners and for watering their livestock. The remaining provisions of Part XV., ss. 216 to 220, govern the distribution by the council of water in various circumstances and the application by the council of moneys received in respect of water. It is apparent that they proceed upon the assumption that a water district will place a large though possibly a sometimes inadequate supply of water at the command and under the regulation of a council.

[63]

But nevertheless we must decide whether s. 209 does or does not apply to water districts created under ss. 206 and 207 after the commencement of the Local Government Act 1906. There are indeed strong reasons in the context and subject matter for supposing that the word "such" was not used with an intention of limiting the operation of s. 209 to water districts theretofore established. In the first place if it were so limited in its operation, there would be no express power conferred by the statute by which in the case of a newly created water district the council could carry into effect any scheme for collecting water or could obtain water for the purpose of supplying it. It can hardly be doubted that the provisions forming the context of s. 209 are framed on the assumption that, as the governing body of any water district, a council is armed with all the powers of a water supply authority. The procedure laid down by ss. 206 and 207 for erecting new districts makes it equally clear that this assumption applied alike to new and to old water districts. Section 208 supplies a further consideration which appears to me to make it certain that s. 209 was intended to cover water districts established pursuant to ss. 206 and 207, as well as water districts existing at the commencement of the Local Government Act 1906. Section 208 can be divided into two parts both of which deal with water districts proclaimed under the Act. The first part provides that such a water district proclaimed upon the joint petition of the councils of two or more municipalities shall be managed and regulated by a joint council. The second part then proceeds: - "and such joint council shall have and exercise in respect of such water district all the powers, rights and privileges hereinafter vested in or conferred upon single councils in respect of water districts under the control and management of such single councils respectively." Now s. 209 is the provision conferring the powers rights and privileges which are essential to the operations of a council and it deals with a single council. Whether it is limited or is not limited to single councils in whose municipality a water district already existed, the powers, rights and privileges it gives are of course taken by s. 208 and bestowed on joint councils. But joint councils govern only new water districts. You have therefore all the powers &c. described by s. 209 conferred on the governing body of a new water district if it is a joint council and you have this done by a referential provisione referring to single councils. Is it conceivable in these circumstances that a single council of a new district was not meant to enjoy the same powers &c.? As already appears, the reasons for placing upon s. 209 a construction incapacitating the section from carrying out this intention are to be found in the grammatical consequences of the word "such." It may be conceded that when s. 209 vests in a council "every river, creek or watercourse within the limits of every such district" the "such" refers back to the antecedent expressed in the words "every water district within the municipality which heretofore has been controlled and managed by the council of a rural municipality or other abolished local body" and that prima facie it brings down the sense of the whole of this description. In the same way it may be conceded that when the section later speaks of "such river, creek or watercourse" and gives the council the control and regulation of "the supply of water along and by every such river, creek or watercourse within such limits" the word "such" where first occurring in this phrase prima facie refers back to the rivers, creeks and watercourses so vested and, where secondly occurring, to the limits of the water districts so described. But to concede that the prima facie logical or grammatical effect may be to bring down by successive steps the limitation contained in the words "heretofore controlled and managed" is one thing. It is quite another thing to treat the prima facie meaning as prevailing over the indication of a contrary intention supplied by the context and by the substantial nature of the provisions.

[65]

In Eastern Counties Railway Co. v. Marriage [1] , a question of a not dissimilar character arose upon the Lands Clauses Act 1845 concerning the effect of the word "such" in the opening words of a section which began: "If any such land shall be so cut through and divided." In the preceding section the word "land" occurred more than once, but the only available antecedent which would make sense occurred at the beginning of that section, viz., "If any lands not being situate in a town or built upon." But although it made sense to limit the ensuing section also to lands not situate in a town or built upon, it was not a probable intention and the House of Lords, though contrary to the advice of a majority of the judges, rejected the strict consequence of the meaning of the word "such" and decided against the limitation. Lord Chelmsford said [1] : - "I think that too much stress has been laid in the argument upon the word "such," which it was shown has been employed in various parts of the Act without much regard to propriety or to its supposed relative force. Many of the learned Judges deal with it as if it were a settled rule of construction that it should be referred to the last antecedent. I am not aware that this is a word of such close relation that it must necessarily refer to the next immediate antecedent At the same time it must be admitted that every relative ought to be referred, not perhaps to the next antecedent "which will make sense with the context," but to that to which the context appears properly to attract it." In R. v. Randall [2] , it was decided that in a Highway Act the expression "all such woods, mines, and quarries of stone or other hereditaments as have heretofore been usually rated to the highways" included mines and quarries opened since the passing of the Act, if of a similar nature. Wightman J. said [3] that the case depended on the word "such." "Now the words "such" as have been usually rated certainly may refer to the genus; and unless this construction be put upon the Act new mines will be exempt from a liability to which old mines of a precisely similar character are subject, which could hardly be the intention of the Legislature I think "such as" here means "of such description as"."

[69]

These decisions are, of course, no more than illustrations of the recognition by the courts that difficulties caused by the ill-considered resort of draftsmen to the use of the word "such" are to be met by a readiness on the part of the courts to mould the application of that not inflexible relative word so as not to defeat the intention gathered from the context. But the observations quoted suggest what is, I believe, the solution of the difficulty in the present case. It lies in recognizing that a draftsman in using the word "such" may not have in mind all the precise qualities which by an adjectival phrase he may have attributed to his antecedent in an earlier part of his text and may really intend to refer only to the general nature of the thing or concept to which he has occasion again to refer. In yielding to the temptation to employ the word "such" and avoid all repetition he may not have seen or been alive to all the implications which a logical application of the word involves. To borrow the phraseology of Lord Chelmsford and give it a somewhat different application, there may for this reason be occasions when the relative "such" ought to be referred not to all the characteristics contained in the previous description of the antecedent but to the more general characteristics to which the context appears properly to attract it. Here I think the truth is that the draftsman desired to confine the provision made in s. 209 to water districts within municipalities and to rivers, creeks and watercourses within the limits of water districts within municipalities. He sought to re-express the limitation by employing the word "such" but he did not intend by so doing to re-express the further limitation of water districts to those which theretofore had been controlled and managed by the council of a rural municipality or other abolished local body. That it could not have been so intended is, I think, shown by the considerations I have already stated, and effect is best given to the real intention by modifying the strictly logical application of the word "such" and doing so in accordance with what it may reasonably be supposed was felt to be the sense of the word when it was employed.

[74]

Statutes which vest in a public authority highways, sewers and other artificial works, such as sea walls and embankments, serving a definite public purpose, open to public use or access as of common right, have received a construction according to which the authority takes less than the full property in the site, less than property unlimited in point of altitude or depth. The operation of the statutory vesting is considered as confined to the purpose to be fulfilled. The subsoil beneath a street so vested becomes the property of the authority only to so far down as is reasonably incidental to the construction and maintenance of the highway and to its proper control. There is a corresponding limitation upwards on the rights which would arise from ordinary ownership of land. There is much authority illustrating this construction of provisions vesting highways, sewers and the like, but it is perhaps sufficient to refer to Port of London Authority v. Canvey Island Commissioners [1] . The same kind of construction appears appropriate when, as in s. 209, rivers, creeks and watercourses are vested in a water supply authority. The description of the subject vested is indefinite. It is not a piece of land with defined boundaries. The purpose is limited. If any interest in the soil is taken by the council it is no greater than is necessary to enable it to control and use the waters of the streams so that the council may supply water and to that end construct weirs and other works. No doubt the council obtains a proprietary interest in the running waters of the stream but it is an interest in them considered as the running water of a stream and again it is an interest incidental to the exercise by the council of the particular function and does not extend further. In The Medway Co. v. Romney [2] , a body of persons had obtained by a statute of 1739 powers of making the river Medway and streams flowing into it navigable. By the statute the rivers and streams so to be made navigable and all lands tenements and hereditaments to be by the body made use of for the benefit of the said navigation were vested in them. The justices of the peace for the County of Kent and the committee of visitors for the County Gaol and Lunatic Asylum obtained a piece of riparian land and from it laid a pipe to the asylum and the gaol some distance away and through the pipe they pumped water and thus supplied those institutions. The question was whether this infringed upon the statutory rights conferred upon the body whose successor in title the plaintiffs were. The Court of Common Pleas decided that it did. Looking at the objects contemplated by the statutes the court construed them as creating a new species of property and interest in the water, which interest was interfered with by the abstraction of the water for the defendant's purposes, purposes more extensive than those of a riparian proprietor. Willes J., delivering the judgment of the Court said [1] , "In our view of the true construction of the acts of Parliament, it is not necessary that there should be an actual damage to the navigation, because we think that the legislature intended to give the company such an interest in all the water of the river for the purposes of the navigation as is interfered with by the abstraction of any part thereof." It will be seen that the governing principle was considered to be the purpose of the statutory vesting, though the application of the principle led to a conclusion that strangers were excluded from any use of the water except perhaps in the exercise of riparian rights. Upon the present appeal the respondent council claimed to be in the same position, so that it was entitled to complain of the use made by the appellant company of the waters of the stream far below the site of the intended works of the council, to complain of the use on the ground that it exceeded the use to which a riparian owner is entitled. If s. 209 were unaffected by any later or other Act I should think that perhaps it would give the council, as it contends, a locus standi to complain of any use of the water of a stream at any point within the limits of the water district if it involved an abstraction of the water which could not be justified either as an exercise of riparian rights or under some other right or title. I say this because the purpose of the vesting appears to be to enable the council not only to use the waters but to maintain the streams within the water district free from interference so that there will be no danger of their sufficiency and purity being affected. Further, the "vesting" takes into account no question of degree and none of place or position except situation within the water district. But of course the operation of other statutes must be considered and the extent of riparian rights. There is no express saving of riparian rights from the effect of the vesting of the streams, although in the ensuing part of the section the power of the council to regulate the flow of the stream is made subject to the existing rights of any riparian proprietors. But riparian rights are incidents of property: there is no indication of any intention to destroy them and the bare vesting of the stream is not an apt or sufficient way of doing so. Unsatisfactory as the drafting may be, the express saving in s. 209 of previously existing riparian rights from the operation of the power of controlling the flow makes it certain that they are preserved from impairment by the vesting part of the section. Otherwise the express saving would be futile.

[78]

The appellant company claims that it operates to preserve the entire bundle of rights of a riparian owner with reference to the stream as well as rights obtained by grant or prescription. The respondent council on the other hand maintains that no more is preserved than the primary right to abstract water for domestic use and the watering of stock and the like uses. In Cook v. Vancouver Corporation [1] , Lord Moulton, speaking for the Privy Council, said: - "Riparian rights under English law are of two kinds. First, there is the right to make use in certain specified ways of the water flowing by the land, and secondly there is the right to continuance of that flow undiminished." The same distinction, in my opinion, is made by s. 209. The section does not mean to preserve more than the right to use the water flowing by the land. It is of course possible to regard the rights at common law of a riparian owner as a fasciculus that is not to be dismembered so that the right to use the waters cannot be divorced from the right to the undiminished flow of a stream. But that is not a conception of the rights to which the statute can give way. The language of s. 209, speaking as it does of rights to the use of the waters flowing, appears to me, clearly enough, to distinguish, as Lord Moulton does, between the right to the natural flow of the stream not sensibly changed or reduced and the right to the use of the waters. The latter right only is preserved. To be preserved it must have been a right "previously existing." This has been taken to mean previous to the setting up of the water district. Apart from rights against other riparian owners acquired by grant or prescription, it is enough that the land should have been alienated from the Crown and given a boundary consisting of or contiguous with a natural river watercourse or stream; riparian rights follow as an incident of ownership. In effect, then, the "rights previously existing" are those annexed to land alienated by the Crown before the proclamation of the water district, that is unless, contrary to what has been assumed, some earlier date or event is intended, such as the commencement of the Local Government Act 1906.

[79]

The right to use the waters of a stream, when considered independently of any right to have waters available for use, must be a right only against lower riparian proprietors. The extent of the lawful use which may be made of the waters of a stream is measured as against them. But it is obvious that s. 209, when it preserves existing rights to the use of the water from impairment by the council's control and regulation of the supply of water along and by a watercourse &c., means that the right shall not be prejudiced by what is done upstream. The common law, however, does not quantify the right to the use of water by reference to parties upstream. They are required simply to allow the stream to descend without sensible diminution. It is then available to those lower down. But what each of them may do with regard to it is measured by reference to the rights of riparian proprietors whose lands are lower down than his. The odd result is that the quantification or extent of the right preserved by s. 209 from prejudice by a council's works must depend upon the manner in which the law measures as against a lower proprietor the riparian right of an upper proprietor to abstract water, for plainly the statute treats them as rights defined and measured and there is no other standard measuring or defining them. But at this point a new or further difficulty arises. It is that the law does not provide one standard or measure of the right but divides the right into two and affixes to the respective divisions different standards by which the right to water may be measured. In a case from India Lord Dunedin stated the distinction. "The right of a riparian owner to take water, is first of all, for domestic use, and then for other uses connected with the land, of which irrigation of the lands which form the property is one. But there is a difference of degree between these primary and secondary rights": Secretary of State for India v. Subbarayudu [1] . His Lordship then went on to explain the distinction of degree by citing passages from the judgments of Lord Cairns in Swindon Waterworks Co. v. Wilts and Berks Canal Navigation Co [2] , and of Lord Macnaghten in McCartney v. Londonderry & Lough Swilly Railway [3] . The effect of these passages has been briefly stated as follows: - " it is sufficient to state that a riparian owner may take and use the water for ordinary purposes connected with the riparian tenement (such as domestic purposes or the wants of his cattle), and that in the exercise of his right, he may exhaust the water altogether; that he may also take and use the water for extraordinary purposes, if such user be reasonable and be connected with the riparian tenement, provided that he restores the water so taken and used substantially undiminished in volume and unaltered in character": per Lawrence J., Attwood v. Llay Main Collieries [4] . The former is the primary right, the latter the secondary right. Irrigation is permitted as an exercise of the secondary right, but it may not be done to a degree that would cause a serious reduction in the volume of water flowing down by lower riparian tenements. "When only a part of the stream is taken, and that for purposes of irrigation, the only limitation is that the amount taken shall not be so much as to hurt the right of the inferior owner to have the stream passed on to him practically undiminished": per Lord Dunedin [5] .

[81]

For the defendant municipality I understand it to be suggested that, in effect, it is the primary right only which is preserved by the words "subject to previously existing rights of any riparian proprietors to the use of water." It is true that it alone is an absolute right: the secondary right being relative or correlative to the right of the lower proprietor. But I think that there is no warrant either in the text or the context of s. 209 for limiting the expression "rights of riparian proprietors" in this way. I think therefore the so-called secondary right must be taken to be within the reservation. This conclusion, however, involves a greater difficulty than might appear from the foregoing descriptions of the secondary right. The reason is that in the descriptions above of the permitted use of water by a riparian proprietor, it has been taken for granted that there is a lower tenement and that the proprietor stands upon his rights. In this case, however, we have the proprietors of the last three tenements upon the river in its course to the sea making common cause. They say that the residue of the stream descends to them and there are no ulterior interests to be considered. According to Channel B. "the rights of a riparian proprietor with respect to the stream are limited only by those of persons in a similar or analogous position with respect to the stream as himself": Nuttall v. Bracewell [1] . What rights are there to the use of the waters of the river which would limit those of the plaintiff Klingler? Possibly some limitation might be spelt out from the existence of land with a river frontage on the north side of the river opposite Klingler's tenement and between the road and the foreshore, land which does not appear to belong to any of the plaintiffs; possibly from the existence of some land between Klingler's land and the foreshore. We know that towards the mouth of the river the water was not found fresh enough for irrigation but how far up this was so does not appear. But apart from these theoretical possibilities there seems no reason for limiting Klingler's right, his secondary right, to take water from the stream for irrigation by the obligation of causing no serious diminution of the volume of the stream. It would be unsafe to give effect to the theoretical possibilities mentioned. As the plaintiffs have combined in seeking relief, it is unnecessary to pursue the question whether for the purposes of the reservation in s. 209 the measure of the right of the other two plaintiffs to take water is that of their right against a lower proprietor or proprietors, that is to say the right of the plaintiff Worsley against the plaintiff Klingler and of the plaintiff company against those two plaintiffs.

[82]

So far I have considered the case independently of the operation of the Hydro-Electric Commission Act 1944 and before passing to the difficult question what effect that statute produces upon the powers of the council and the situation of the parties it is desirable to re-state summarily certain of the conclusions which the foregoing appears to warrant. Briefly they are, first, that the water district has been lawfully established and the council armed with sufficient powers to carry out its plan under Part XV. of the Local Government Act subject always, however, to the existing riparian rights of the plaintiffs to the use of the water: secondly, that the riparian rights thus preserved as paramount do not include a right to an undiminished flow of the stream but do include a right to take water from the stream for irrigation and other purposes in quantities which, so far, at all events, as the plaintiff Klingler is concerned, do not appear to be limited by an obligation to cause no substantial reduction in the volume of the stream. How far the plan of the council when carried out is shown to be necessarily inconsistent with the enjoyment of such a right is perhaps a question in which, if the matter stopped here, the plaintiffs' title to relief might depend. But at this point it is necessary to suspend that question and to turn to the Hydro-Electric Commission Act 1944. That is an Act to consolidate and amend the law relating to the constitution, powers and functions of the Hydro-Electric Commission. The Commission was established by the Hydro-Electric Commission Act 1929, which was entitled an Act to provide for the establishment of a Commission to manage and control the State Hydro-Electric Works; and to provide for State control of all waters in lakes, falls, rivers and streams and to vest such control in the said Commission; to empower the said Commission to regulate the use of such waters in certain cases. Section 49 (1) of this earlier Act provided that subject to any rights lawfully held at the commencement of the Act, the sole right to use water in lakes, falls, rivers, or streams shall vest in the Commission, and such sole right shall be held by the Commission for the purposes of the Act. The Act commenced on 18th January 1930. In the consolidating Act of 1944 this sub-section is represented by sub-s. (1) of s. 65. Section 65 (1) is as follows: "Subject to rights lawfully held on the eighteenth day of January, 1930, the sole right to use the waters in lakes, falls, rivers, or streams vested in the Commission by section forty-nine of the Hydro-Electric Commission Act 1929 shall be held by the Commission for the purposes of this Act." The plaintiffs' contention is that this provision is inconsistent with Part XV. of the Local Government Act 1906 or at all events with s. 209 and, whether it operates as an implied partial repeal or places the inland waters of the State outside the operation of s. 209 upon water districts proclaimed after 18th January 1930, the effect of the provision is to exclude the defendant municipality from all power and control over or use of the waters of the North West Bay River. Section 65 (5) provides that the section should not apply to or in respect of any rights directly granted by any Act, and reliance was placed upon this as preserving the operation of Part XV. of the Local Government Act. But I cannot see how Part XV. directly grants any right to the Municipality of Kingborough or its council. Part XV. gives powers to the Governor-in-Council. It is impossible to say that the competence of the council to petition for their exercise was a right, and, if the proclamation by the Governor-in-Council of the water district resulted in the creation of any rights in the municipality or its council, it is impossible to say that they were directly granted by an Act. Section 65 (5) is really pointed at powers given by sub-ss. (3) and (4) to purchase and compulsorily acquire water rights existing on 18th January 1930. Equally impossible is it to say that the municipality or council lawfully held any rights under Part XV. before 18th January 1930 within the opening words of sub-s. (1). Great doubt may be felt whether the legislature perceived the effect of vesting in the Commission the sole right to use waters in lakes, falls, rivers or streams. But the word "sole" excludes from the use of the waters all persons and bodies who cannot vouch the protection of the exceptive provisions of Part XIV. of the Hydro-Electric Commission Act 1944 or of some special Act. Considered by itself it is inconsistent with the full operation of Part XV. of the Local Government Act and of much other legislation, in particular with s. 37 of the Towns Act. The devastation it may cause among statutes, however, is no reason for denying its plain meaning. The long title to the Act of 1929 makes it impossible to confine the operation of s. 65 (1) by reference to the purposes of the Commission in relation to hydro-electric energy. In so far as the inconsistency extends, the provisions of Part XIV. of the Hydro-Electric Commission Act must operate as an implied repeal (pro tanto) of Part XV. of the Local Government Act. But the principle of interpretation is that "a repeal by implication is only effected when the provisions of a later enactment are so inconsistent with or repugnant to the provisions of an earlier one, that the two cannot stand together Unless two Acts are so plainly repugnant to each other that effect cannot be given to both at the same time, a repeal will not be implied": Kutner v. Phillips [1] .

[84]

The great inconvenience which results from holding that Part XIV. of the Hydro-Electric Commission Act 1944 operates as a repeal of prior statutory provisions like Part XV. of the Local Government Act giving powers to use the water in lakes and streams for water supply and other purposes is a powerful consideration strengthening the application of the principle of construction in this instance. Among the provisions of Part XIV. is one giving a power to the Governor-in-Council to direct the grant of a permit for the use of water and it appears to me that if this provision is open to a construction, as I think it is, which would place in the hands of the Executive authority to except water supply authorities from the exclusion worked by s. 65 (1) from the use of water in lakes and streams, it ought so to be construed. So to interpret it will give effect to the principle of construction and avoid the great inconveniences which must result from holding that Part XIV. rigidly and inexorably limits the use of water to the Commission except for the saving of rights existing before 18th January 1930 or directly granted by an Act and the exception which is made by s. 68 of the supply of water for stock or domestic purposes, or under the Mining Act. The provision conferring the power in question on the Governor-in-Council is s. 67, which is as follows: - "To the extent to which the right to the use of water in any lakes, falls, rivers, or streams is vested in the Commission, the Commission shall, if the Governor so directs, and subject to such conditions as the Governor may determine, permit any person to be designated by the Governor to use such water for any purpose other than the generation of electrical energy." If this section is interpreted as meaning to give a full discretion to the Executive to require that consent shall be given by the Commission to any public or private use of water (except for the production of electrical energy) then, it seems to me, that the legislation of Tasmania on the subject of water supply and the use of water assumes a rational form and has an intelligible operation. For myself, I do not see any great difficulty in giving the provision a construction that would enable the Executive to direct the Commission to permit the municipality or the council to use the water of the North West Bay River for the purposes of the proposed water supply scheme under Part XV. of the Local Government Act. The permit would confer no right: it would relax a prohibition, the prohibition involved in the Commission's statutory right to the sole use of the water. By the express terms of s. 67 the permit is "to the extent to which the right to the use of water is vested in the Commission," so that it operates just as a licence co-extensive with the exclusive right, simply making lawful what would otherwise be unlawful. It does not affect the rights of others.

[89]

On 28th September 1945 the Commission purported to grant the council permission to draw one and a quarter million gallons of water a day from the North West Bay River. But it does not appear that any direction to grant the permit was given by the Governor-in-Council. I think that s. 67 places the discretion in the Governor-in-Council. We should therefore disregard this permit. It does not follow that an injunction should be granted because the council has not yet obtained a direction under s. 67. It is the "use" of water without a permit that is contrary to the Hydro-Electric Commission Act and the work has not yet advanced far enough to enable the municipality to use the water. Whether the absence of a permit would give the plaintiffs a ground of complaint is, moreover, a question. In this view of the effect of Part XIV. of the Hydro-Electric Commission Act the plaintiffs' case comes back to the question whether the scheme of the defendant municipality necessarily means that the municipality threatens and intends to deprive the plaintiffs or any of them of the use of the quantity of water for irrigation to which their riparian rights entitle them respectively in the manner I have sought to describe. I have left open the question whether the three plaintiffs by combination can place the plaintiff company and the plaintiff Worsley in a position to claim a greater right to water than if their secondary right was measured on the footing that there were lower riparian proprietors. Let it be supposed that they are in such a position. The combined demands of the plaintiffs are high. Morris C.J. thought that the plaintiffs might at times take 900,000 gallons a day. At the hearing of the appeal it was said that the maximum quantity might be 1,044,000 gallons a day. The off-take of the council, however, could not exceed 253,000 gallons a day. It is unlikely that in ordinary seasons there would be any difficulty in satisfying both demands. In an exceptionally dry season, however, a difficulty might arise. The difficulty could of course be met, unless there was a phenomenal shortage of water, by co-operation between the parties. For irrigation to the full capacity of pumps is not a thing repeated day after day. But that is a matter for them in the future. What the court must do is to grant an injunction if there is a real present threat to deprive the plaintiffs of water that they should receive, and refuse it if there is not. It appears to me, even on the assumption I am making, that it all depends on the future action of the engineer who may happen in fact to be controlling the amount of water passing downstream if and when contingent events occur. In the extraordinary confusion attending this difficult legislation, it is hardly to be expected that the defendants should have had any clear picture of their obligations to the plaintiffs. But I do not think that it can be inferred from the daily capacity of the works proposed that the plaintiffs would necessarily be deprived of water they required and were entitled to demand at the time when they needed it if, owing to a dry season there was not enough for both parties in competition. I do not think that the plaintiffs have made out a case for relief.

[94]

The council of the defendant municipality proposes to carry out, and has already commenced to carry out, a scheme for the supply of water to the towns of Margate and Snug and a considerable tract of country lying between those two towns. Such a purpose is "extremely desirable and laudable, but one to be attained not by violent means, or means not warranted by law, but by legal means" (per Lord Cairns L.C. in Swindon Waterworks Co. v. Wilts & Berks Canal Navigation Co. [1] ). The scheme involves the construction of a weir on the North West Bay River some distance above the lands of the plaintiffs. From that weir water will be diverted and carried by means of pipes to the lands of the persons to be supplied in the two towns and the intervening territory. In fact the weir has been actually constructed and a number of pipes laid, but no water had been diverted from the stream at the time when this action was commenced. In adopting and proceeding to carry into effect its scheme of water supply the council of the municipality has purported to act under the authority of certain statutes of the State of Tasmania. It will be necessary carefully to examine these statutes, but it may be noted in passing that the learned Chief Justice referred to them collectively as "the water legislation of this State, which might now be termed a chaos." It is clear that, if the scheme is carried into effect, there will be a diminution of the flow of water past the lands of the plaintiffs below the weir. The probable extent of the diminution was in controversy. The Chief Justice said: - "It is apparent that the flow of the stream to the lands of the plaintiffs will be appreciably reduced by the defendant's scheme." But the evidence went, I think, considerably beyond this, and I think that his Honour found much more than this. There was evidence that, when irrigating, the plaintiffs would use something in the vicinity of 1,000,000, gallons per day, that the capacity of the defendant's pumps did not exceed about 250,000 gallons per day, and that in February 1949 the stream carried about 1,600,000 gallons per day. But there was also evidence which strongly suggested (what one would imagine to be highly probable) that the flow of the stream varies greatly according to time of year and seasonal conditions. While at times, no doubt, much more than 1,600,000 gallons per day would flow down the stream, at other times there would most probably be considerably less, and this would naturally occur at dry periods when the plaintiffs' need of water would be greatest. These considerations, which have ample evidence to support them, explain, I think, the learned Chief Justice's finding that the plaintiff company's three intakes take, during the period from December to March, "all the water available and return none of it to the stream," and his later reference to "the present user by H. Jones & Co. Pty. Ltd., taking, as it does, all the available water and not returning it to the stream." The non-return of the water to the stream seems to me (as I shall explain later) to be something of which only a lower riparian owner could complain. I have referred to these two passages from his Honour's judgment only because I think that they show that the defendant's proposed works would not merely involve a sensible diminution of the flow of the stream but would interfere with the use actually made of the water by the plaintiffs before action brought. This is a matter which, whatever other relevance it may prove to have, must necessarily affect the discretion as to whether an injunction should be granted. The object of the action was to restrain the threatened diminution of flow and the plaintiffs (in substance) claimed (1) a declaration that the plaintiffs as owners of lands on the banks of the North West Bay River are respectively entitled to the waters flowing in a defined and natural channel into and forming part of the same as such stream and waters have been accustomed to flow down to the said land subject only to the ordinary and reasonable use of the said stream and waters by the riparian owners higher up upon the said stream; and (2) an injunction to restrain the defendant its servants agents or contractors from constructing the proposed works or obstructing or diverting the water of the said stream so as to interfere in any manner with the rights of all or of any of the plaintiffs as above declared.

[98]

In fact the consent of the Governor under s. 37 to the proposed scheme of water supply has not been obtained by the council of the municipality of Kingborough, but, if the proposed scheme were otherwise authorized by the Towns Act, I do not think that an injunction should go merely on the ground that the consent of the Governor has not been obtained. It appears that the consent has been applied for and has been refused, not on the merits, but because of the pendency of the plaintiffs' action: the consent may be forthcoming. But, apart altogether from the absence of consent of the Governor, the council's scheme in this case is in my opinion clearly not authorized or justified by the Towns Act. As Mr. Eggleston compendiously put it, it is "not a Towns Act scheme." Even if it be assumed that s. 37 authorizes a scheme embracing more than one town, it does not in my opinion authorize a scheme which includes, as this scheme does, the supply of water to lands outside the boundaries of any town. Correspondence and other evidence in the case indicates that an important factor in the scheme throughout has been a fish-canning factory, which is situate a mile or more from each of the towns of Margate and Snug and which is regarded as a potential consumer of a very considerable quantity of water. The proprietors of the factory are not inhabitants of a town within the meaning of s. 37, nor are the purposes of the factory or the purposes of the other owners of land between the towns of Margate and Snug among the purposes mentioned in s. 37. It may be noted (though doubtless this by itself is not fatal to the defendant) that the council does not appear at any stage to have regarded itself as proceeding under the Towns Act, and the approval of the Water Sewerage and Drainage Board, which must be obtained under the Water Sewerage and Drainage Act 1944 Tas. for any scheme of water supply, was not given to a scheme propounded as a scheme under the Towns Act. In my opinion, the threatened diversion of water of which the plaintiffs complain is clearly not authorized by the Towns Act 1934.

[101]

The section in Part XV. upon which the defendant directly relies for its authority to divert and take water from the North West Bay River is s. 209, and it is desirable to set it out in full. It provides: - "The council of each municipality shall have the care, control, and management of every water district within the municipality which heretofore has been controlled and managed by the council of a rural municipality or other abolished local body, and in them shall be vested every river, creek, or watercourse within the limits of every such water district and not vested by statute in any other authority, or excepted from the operation of this Part by a notification of the Minister in the Gazette; and subject to the previously existing rights of any riparian proprietors to the use of the water flowing in any such river, creek, or watercourse, the council shall have the absolute control and regulation, so far as the same can be effected by artificial means, of the supply of water along and by every such river, creek, or watercourse within such limits. But nothing herein contained shall empower the council to place any obstruction in any navigable river, or to divert the water therefrom in any manner that would interfere with the navigation thereof." Sections 210-212 confer upon the council certain borrowing and rating powers in connection with water districts, and provide for the collection and enforcement of rates. Section 213 authorizes the council to enter upon land within the water district for the purpose of constructing locks, dams, wells, water channels &c., to take possession, subject to compensation, of any locks, dams or embankments already erected and to alter vary or regulate in such manner as may be prescribed the level or flow of water in any locks dams wells or works. The word "prescribed" means prescribed by regulation or by-law (see Acts Interpretation Act 1931 Tas., s. 7) and the words "manner prescribed" probably refer to s. 205 (15) (iii.) and (iv.), which confer upon the council certain by-law-making powers in relation to the supply of water. Section 214 authorizes the council to supply water on such terms as it may fix, and ss. 215 to 220 contain certain ancillary provisions.

[102]

Section 209, which appears to be the critical section for the purposes of the present case, involves a serious difficulty of construction. The expression "every such water district" in the first limb of the section would appear at first sight to refer only to water districts constituted before 1906 in "abolished" municipal districts, and the expression "any such river creek or watercourse" in the second limb of the section would appear correspondingly to refer only to rivers creeks and watercourses within water districts so constituted before 1906. It seems extremely unlikely, however, that this was intended, because s. 206 clearly contemplates and authorizes the creation of new water districts after 1906, and because s. 209 is the only section in Part XV. which gives to a council the very necessary power to regulate and control the sources of water supply within a water district. It is true that implications might be made from the other sections, and particularly from ss. 213 and 214, if they stood alone, but the very presence of such a section as s. 209 makes it highly improbable that it was intended to leave its subject-matter to implication in the case of all water districts constituted after 1906. The collocation of provisions creates an unmistakeable impression that the sections which follow s. 209 were intended to confer powers consequential on and in aid of the vesting effected, and the power of control given, by s. 209. Moreover, s. 208 seems to display a clear intention that Part XV. is to apply to water districts which may be created in the future. I think that the intention to deal with both existing and future water districts can fairly be collected from s. 209 read in its context, and I think that the word "such" should in each case be read as referring back only to "every water district within the municipality." The section then does two things. It gives to the council the control and management of existing water districts, and it goes on to provide, with respect to all water districts, for the vesting of rivers &c. in the council and the control and regulation of the supply of water by the council.

[104]

The Hydro-Electric Commission Act 1929 Tas., was entitled "An Act to provide for the establishment of a Commission to manage and control the State Hydro-Electric Works; to provide for State control of all waters in lakes, falls, rivers, and streams, and to vest such control in the Commission; to empower the said Commission to regulate the use of such waters in certain cases." It provided by s. 49 that, subject to any rights lawfully held at the commencement of the Act (18th January 1930), the sole right to use waters in lakes falls rivers or streams should vest in the Commission, and that such sole right should be held by the Commission for the purposes of the Act. The Act of 1929 was repealed by the Hydro-Electric Commission Act 1944, which is a consolidating and amending Act and which now contains the material provisions. Section 65 of this Act provides that, subject to rights lawfully held on 18th January 1930, the sole right to use waters in lakes falls rivers or streams vested in the Commission by s. 49 of the Act of 1929 shall be held by the Commission for the purposes of the Act. Sub-section (2) provides that the Commission may, with the consent of the Minister, purchase rights to the use of water in lakes falls rivers or streams existing on 18th January 1930, and sub-s. (3) provides that the Commission may, with the consent of the Governor, acquire such rights compulsorily. Sub-section (4) provides that, if rights are acquired compulsorily, compensation is to be paid. Sub-section (5) provides that the provisions of s. 65 are not to apply to or in respect of any rights directly granted by any Act. That is to say, such rights are preserved and cannot be compulsorily acquired by the Commission. Section 66 provides that no right to the use of water in lakes falls rivers or streams shall be capable of coming into existence after 18th January 1930 by reason only of the enjoyment of such use for any period or of any presumption of a lost grant based upon such enjoyment. Section 67 provides that, to the extent to which the right to the use of water in any lakes falls rivers or streams is vested in the Commission, the Commission shall, if the Governor so directs and subject to such conditions as the Governor may determine, permit any person to be designated by the Governor to use such water for any purpose other than the generation of electrical energy. Section 68 provides that nothing in the relevant Part (Part XIV.) of the Act shall affect the right of any person to the supply of water for stock or domestic purposes or under the Mining Act 1929.

[107]

With regard to the second contention of the defendant, it appears that on 28th September 1945 the Commission granted permission to the defendant "to draw from the North West Bay River approximately one quarter million gallons of water per day." It does not, however, appear that the Governor directed that this permission should be granted. This, however, is not fatal to the contention, because a direction from the Governor may be forthcoming, and an injunction should not go unless it is clear that a direction will not be given. I have felt difficulty and doubt over the question whether s. 67 operates to enable the Commission to authorize statutory bodies to exercise powers in respect of water, the sole right to use which is vested in the Commission by its Act. The power given by s. 209 of the Local Government Act is given to the council of a municipality. The word "person" is defined by s. 41 of the Acts Interpretation Act 1931 Tas. as including any body of persons, corporate or unincorporate, but the "person" to whom the permission may be given is a person "to be designated." It is not easy to regard a fluctuating body of persons, such as a council, as a "person" capable of being "designated." The whole framework, indeed, of s. 67 appears to me to be inapt to convey an intention that statutory powers in respect of water may be exercised if, but not unless, the Governor directs the Commission to grant permission for those powers to be exercised. I have, nevertheless, formed the opinion that s. 67 does authorize the giving of such a permission to use water as will authorize a council to exercise the powers given by s. 209 of the Local Government Act. The legislature has left that section standing on the statute book alongside s. 65 of the Hydro-Electric Commission Act, and there must be a strong presumption that it regarded the two sections as capable of working together and intended that they should work together. I do not think that any assistance is to be derived from the maxim generalia specialibus non derogant, but I do not think it is impossible to regard s. 67 as enabling the two sections to work together, and, unless it is actually impossible so to construe it, I think that it ought so to be construed. After all, when one is dealing with legislation so loosely conceived and drafted, a strict scanning of language is perhaps likely to miss what is intended to be conveyed. It may be said that s. 67 enables a right to be conferred upon a council in order that a power may be exercised, and, albeit with considerable doubt, I think that s. 67 should be so construed.

[109]

The rights of riparian owners in Tasmania in respect of water flowing through or past their lands are not governed by statute as they have been in Victoria since the passing of the Water Act 1905. They are governed by the common law. As to the common law, the statement in Halsbury's Laws of England, 2nd. ed., vol. 33, at pp. 593-594, is, I think, entirely accurate. The learned author says: - "Every owner of a riparian tenement on a natural water course flowing in a known and defined channel, has as incident to his property in the riparian land a proprietary right to have the water flow to him in its natural state in flow, quantity, and quality, neither increased nor diminished, whether he has yet made use of it or not." He has also the right that the water shall go from his land without obstruction, but we are here concerned only with his right to have the water come to his land. Questions as to the nature and extent of this right commonly arise as between upper and lower riparian owners, and the prima-facie absolute right of the lower owner stated in the passage quoted is qualified by certain rights which every upper owner has at common law. Every such owner has, as against every lower owner "the right to take water from a natural stream for all ordinary purposes, namely ad lavandum et ad potandum, or for domestic purposes, such as drinking and culinary purposes, cleansing, and washing, feeding, and supplying the ordinary quantity of cattle on his land, etc." (op. cit. p. 595). So Parke B. in Embrey v. Owen [1] , said: - "The right to the benefit and advantage of water flowing past his land, is not an absolute and exclusive right to the flow of all the water in its natural state; but it is a right only to the flow of the water, and the enjoyment of it, subject to the similar rights of all the proprietors of the banks on each side to the reasonable enjoyment of the same gift of Providence." The right of an upper owner as against a lower owner would seem to extend beyond the "ordinary" use of water described above and to extend to some uses, such as irrigation, which are sometimes called "extraordinary" uses. Some doubt seems to attach to the extent of the "extraordinary" user which an upper owner is entitled, as against a lower owner, to make. I do not think, however, that for the purposes of this case it is necessary to consider this question: it may be noted that it was discussed in Embrey v. Owen [2] and in Sampson v. Hoddinott [3] .