Thorpes Ltd v Grant Pastoral Co Pty Ltd

In Dougherty v. Ah Lee [1] a plaint for ten pounds in the Small Debts Court alleged that the plaintiff was possessed of certain land, through which there passed a creek, that he was entitled to have that creek flow by and away from his land, and that the defendant had dammed back and obstructed the creek so that it could not flow by and away from the plaintiff's land, whereby the creek overflowed and flooded the plaintiff's land and did damage thereon. The magistrates having refused to adjudicate on the ground that a "general right" was involved, the plaintiff moved in the Supreme Court for a mandamus. Owen J. said: "This is clearly a case based upon the riparian owner's right to have the water flow past by and away from his land" [1] . And his Honour held the case to be governed by Hanson's Case [2] so that the plaintiff must fail, and the motion was dismissed. Here the claim, as framed in the plaint, seems to have been based on a supposed "riparian" right, and, if it be regarded as so based, Owen J. was justified in treating the case as indistinguishable from Hanson's Case [2] , and on that basis Dougherty v. Ah Lee [1] is just as clearly distinguishable from the present case as is Hanson's Case [2] . But the substance of the two cases (though the facts are not fully stated in the report) would appear to have been different, because it seems probable that the plaintiff in Dougherty v. Ah Lee [1] , like the plaintiff in the present case, but unlike the plaintiff in Hanson's Case [2] , had no need to rely on any special "riparian" right. If this be the correct view of the facts in Dougherty v. Ah Lee [1] then that case was, in my opinion, wrongly decided.

1. (1902) 19 W.N. (N.S.W.) 8. 2. (1902) 19 W.N. (N.S.W.) 8. 3. (1900) 21 N.S.W.L.R. 271. 4. (1900) 21 N.S.W.L.R. 271. 5. (1902) 19 W.N. (N.S.W.) 8. 6. (1900) 21 N.S.W.L.R. 271. 7. (1902) 19 W.N. (N.S.W.) 8. 8. (1900) 21 N.S.W.L.R. 271. 9. (1902) 19 W.N. (N.S.W.) 8.

It is not, I think, strictly necessary, for the purposes of the present case, to consider the correctness of the decision in Hanson's Case [2] . But I feel bound to say that I regard the correctness of that decision as open to grave question.

What was thought to be the object of the statute is stated by Stephen J. as follows: - "Has the plaintiff since the passing of the Water Rights Act any right to bring this action? It cannot be denied that for years and years past the question of the rights of riparian owners in this country, where the conditions are so totally different from the condition of things in England, has been a source of almost insuperable difficulty. There has been a great deal of expensive litigation, and I suppose, for that reason, the Legislature passed this Act, in order to prevent riparian owners above and below from bringing actions against one another. If this Act does not aim to take the old common law rights from the riparian owners and vest them in the Crown, then I do not know what it was passed for nor what it means. It was passed in the public interest to prevent litigation" [1] .

This passage is open to several comments. For one thing, this intention to cure the disease by killing the patient is in itself a very curious intention to attribute to the legislature. I should have thought, with all respect to Stephen J. and Cohen J., that the real object of the Water Rights Act 1896, as revealed by the latter part of s. 1, was to enable the Crown, in a country in which water is a comparatively scarce and important commodity, to exercise full dominion over the water of rivers and lakes and to undertake generally the conservation and distribution of water. For the attainment of that object it was not necessary to destroy anybody's rights, but it was necessary to give to the Crown, or to some statutory authority, overriding rights to which private rights must, if need arise, give way.

The effect given to the statute in Hanson's Case [2] means that a riparian proprietor has no remedy as of right if a river is dammed by an upper owner so that no water reaches him, or if it is polluted and poisoned by the refuse of a factory. There is much to be said for the view that it would be contrary to elementary rules of construction to give to it any such effect in the absence of clear and unmistakable language. The view which I am disposed to take is that the Act does not directly affect any private rights, but gives to the Crown new rights - not riparian rights - which are superior to, and may be exercised in derogation of, private riparian rights, but that, until those new and superior rights are exercised, private rights can and do co-exist with them. However, the question of the correctness of Hanson's Case [2] was not fully argued, and it is perhaps better not to express a concluded opinion upon it in a case in which it is not strictly necessary to do so.

1. (1900) 21 N.S.W.L.R. 271. 2. (1900) 21 N.S.W.L.R. 271.

For the reasons given the argument of the defendant appellant, in my opinion, fails. There is one other matter which should be mentioned. The argument which I have been considering was the only argument put before the Full Court, and was, until just at the very close of counsel's address, the only argument put before this Court. Counsel had indeed more than once expressly disclaimed advancing any other argument. He had expressly accepted the verdict as a finding that the flood waters had followed a defined flood channel which had been obstructed by the erection of the leveés. He had referred to Menzies v. Breadalbane [1] and a number of other cases, but only with a view to showing that the right put in suit by the plaintiff was a "riparian" right, and therefore among the rights destroyed, according to Hanson's Case [2] by the statute. At the very end of his address, however, he made a brief submission, the effect of which I understood to be that flood waters on the defendant's land had not followed a defined course but had merely spread out over its land, that the levée banks had been erected by way of defence against a "common enemy", and that the case was covered by Gerrard v. Crowe [3] . I do not think it possible that any such argument should be allowed to be raised at this stage. It is not merely that it was not raised at all in the Full Court, and not raised until a very late stage before this Court. What is more important, it does not appear to have been raised at the trial. The learned judge directed the jury without reference to it, and no objection relating to this point was taken to his charge. Moreover, counsel for the respondent referred us to certain evidence which, as it appears to me, would, if believed, make the decision in Gerrard v. Crowe [3] irrelevant. I think that counsel for the appellant was justified in his initial decision to confine himself to the one argument, and that no other argument can now be entertained.

1. (1828) 3 Bli. (N.S.) 414 [4 E.R. 1387]. 2. (1900) 21 N.S.W.L.R. 271. 3. (1921) 1 A.C. 395. 4. (1921) 1 A.C. 395.

I agree with my brother Fullagar in his reasons for holding that the appeal should be dismissed. The case appears to me to be covered in principle by Greenock Corporation v. Caledonian Railway Co. [4] . In that case as in this the damage complained of had been done to land which was not riparian, and the judgments delivered by their Lordships and the authorities cited are conclusive, as Lord Maugham remarked for the Privy Council in R. v. Southern Canada Power Co. Ltd. [5] , "to show that, at common law, apart from statute, the duty of one who obstructs the natural flow of a river is to prevent damage, and, if damage results to any persons, he will be liable to them, irrespective of whether or not they are riparian owners" [1] .

1. (1917) A.C. 556. 2. (1937) 3 All E.R. 923. 3. (1937) 3 All E.R., at p. 928.

Accordingly there is no necessity to consider the decision in Hanson v. Grassy Gully Gold Mining Co. [2] as to the meaning and effect of the Water Act 1912-1946.