Supreme Court of Canada
Martley v. Carson, (1889) 20 S.C.R. 634
Date: 1889-04-30
John Martley and Truman Celah Clark (Defendants) Appellants;
and
Robert Carson and Joseph Eholt (Plaintiffs) Respondents.
1888: October 22; 1889: April 30.
Present: Sir W. J. Ritchie C.J., and Strong, Fournier, Taschereau and Gwynne JJ.
ON APPEAL FROM THE SUPREME COURT OF BRITISH COLUMBIA.
Land Ordinance, 1865—Grant of water under—Riparian owners—Right to exclusive use of stream—Unoccupied water—Proof of notice of application for grant.
The British Columbia Land Ordinance, 1865, contains the following provisions :—
44. " Every person lawfully occupying and bonâ fide cultivating lands, may divert any unoccupied water from the natural channel of any stream, lake, or river adjacent to or passing through such land, for agricultural and other purposes, upon obtaining the written authority of the Stipendiary Magistrate of the district for the purpose, and recording the same with him, after due notice, as hereinafter mentioned, specifying the name of the applicant, the quantity sought to be diverted, the place of diversion, the object thereof, and all such other particulars as such magistrate may require.
45. " Previous to such authority being given the applicant shall post up in a conspicuous place on each person's land through which it is proposed that the water should pass, and on the District Court House, notices in writing, stating his intention to enter such land, and through and over the same to take and carry such water specifying all particulars relating thereto, including direction, quantity, purpose and term." In an action by a grantee of water under this ordinance for interference with the use of the same :
Held, affirming the judgment of the court below, that the ordinance was not passed for the benefit of riparian owners only, but any cultivator of land could obtain a grant of water thereunder.
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Held, further, that the water of a stream, &c., may be unoccupied under the ordinance even though there may be a riparian proprietor upon a part of it.
Held, also, Ritchie C.J. and Strong J. dissenting, that the provisions of s. 45 are merely directory but if imperative a grantee of water under the ordinance who has used the water granted to him for several years would not be required, in an action for damages caused by interference with such user, to prove that he gave the notice required by that section as it would be presumed that the same were given before recording the grant.
Held, per Ritchie C.J. and Strong J., that the water records in evidence were imperfect and the grant to plaintiff was not proved thereby, and having failed to prove authority from the magistrate to divert the water his riparian rights either at common law or under the ordinance were not established and the action failed.
APPEAL from a decision of the Supreme Court of British Columbia reversing the judgment for defendants at the trial.
The facts of the case are fully set out in the judgment of Mr. Justice Gwynne.
S. H. Blake Q.C. and Bodwell for the appellants.
Christopher Robinson Q.C. for the respondents.
Sir W. J. RITCHIE C.J.—I do not think the plaintiff has shown that he has any riparian rights, either at common law or under any ordinance or statute of British Columbia, in the waters he now claims the right to diver ; he has no title to any of the lands over or through which the water in question flows and, therefore, could have no common law right ; nor, indeed, does he claim that he has, but rests his right to divert and use the waters in question by virtue of the authority acquired under certain sections of the ordinance for regulating the acquisition of lands in British Columbia, No. 27, passed 11th April, 1865.
The sections are as follows :—
WATER.
44. Every person lawfully occupying and bonậ fide cultivating lands, may divert any unoccupied water from the natural channel of any
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stream, lake, or river adjacent to or passing through such land, for agricultural and other purposes, upon obtaining the written authority of the Stipendiary Magistrate of the district for the purpose, and recording the same with him, after due notice, as hereinafter mentioned, specifying the name of the applicant, the quantity sought to be diverted, the place of diversion, the object thereof, and all such other particulars as such Magistrate may require.
45. Previous to such authority being given the applicant shall post up in a conspicuous place on each person's land through which it is proposed that the water should pass, and on the District Court House, notices in writing, stating his intention to enter such land, and through and over the same to take and carry such water, specifying all particulars relating thereto, including direction, quantity, purpose and term.
46. Priority of right to any such water privilege, in case of dispute, shall depend on priority of record.
47. The right of entry on and through the lands of others for carrying water for any lawful purpose, upon, over, or under the said land, may be claimed and taken by any person lawfully occupying and bonậ fide cultivating as aforesaid, and (previous to entry) upon paying or securing payment of compensation as aforesaid, for the waste or damage so occasioned to the person whose land may be wasted or damaged by such entry or carrying of water.
48. In case of dispute, such compensation or any other question connected with such water privilege, entry, or carrying may be ascertained by the Stipendiary Magistrate of the district in a summary manner, at the option of either of the commanding parties, either with or without a jury of five men, to be summoned as in ordinary cases.
49. It shall be lawful for such magistrate, by an order under his hand directed to the Sheriff or Deputy Sheriff, to summon a jury for such purpose, and in the event of non-attendance of any persons so summoned, he shall have power to impose a fine not exceeding five pounds.
50. Water privileges for mining or other purposes, not otherwise lawfully appropriated, may be claimed, and the said water may be taken upon, under, and over any land so pre-empted or purchased as aforesaid, by obtaining a grant or license from the Stipendiary Magistrate of the District, and previous to taking the same, paying reasonable compensation for waste or damage to the person whose land may be wasted or damaged by such water privilege or carriage of water.
No evidence has been furnished of any written authority by the stipendiary magistrate of the district
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for diverting the water in question, nor any records of the same ; the only evidence we have, taken from the so-called water records, is as follows :
DOCUMENTARY EVIDENCE.
WATER RECORDS.
(Vide certified copies of originals filed.)
Oct. 3rd, 1866.—The right to the water of the creek crossed by the trail running from the 29-Mile House, Pavilion Mountain, to Captain Martley's house at the Grange Pavilion Creek.
A. C. ELLIOTT.
No. 28.
Jan. 4th, 1867.—The right to the water of a creek running from Pavilion Mountain into Pavilion Creek Valley, and running close to Captain Martley's house.
| Per A. C. ELLIOTT. |
T. H. SHARWOOD. |
IMPERFECT WATER RECORD.
1868. May 16. No. 43.—Pavilion Mountain—200 in.
A ditch on Pavilion Mountain coming from a large creek on a mountain to about opposite the 26-mile post, said water ditch for farming purpose on my ranch. I wish to record 200 inches of water
(Signed) E. H. SANDERS, S. M.
No. 35.
Jan. 20th, 1868.—The right to the use of 100 inches water for the purpose of irrigation, to be diverted from a creek on the summit of the mountain known as Pavilion at a point near the 30-m. post.
E. H. SANDERS, S. M.
1868.
May 16—No. 43.—ROBERT CARSON—Pavilion Mountain—200 inches.
A ditch on Pavilion Mountain coming from a large creek on a mountain to about opposite the 26-mile Post. Said water ditch for farming purposes on my ranch. I wish to record 200 inches of water.
E. H. SANDERS, S. M.
Gov. office March 25, 1885. Certified a correct copy.—F. SOUES, Government Agent.
May 18th—No. 44.—The right to 200 inches of water for agricultural purposes to be diverted from a creek crossing the wagon road near the 29-ile Post on Pavilion mountain.
E. H. SANDERS, S. M.
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1870.
May 16th—No. 106.—WILLIAM SAMPSON—Pavilion Mountain—200 inches.
The right to 200 inches of water from a large creek supplying Carson's ditch. The ditch is about six miles east of Carson's farm.
E. E. SANDERS, S. M.
Certified a correct copy.—F. SOUES, Government Agent.
1870.
May 27th—No. 1.—Mr. Gillon, Pavilion Mountain, the right to 200 inches of water for purposes of irrigation, to be diverted from a creek on the summit of the mountain known as Pavilion Mountain, at a point near the 30-mile post, previously recorded by R. Carson, but transferred to M. Gillon.
E. H. SANDERS, S. M.
1876.
March 23rd—LOUIS HOLT—Pavilion Mountain.
The right to 300 inches of water for farming purposes on his ranch, to be diverted from Pavilion Creek, one mile from base of the mountain.
C. E. POPE, Commissioner.
Certified a correct copy.—F. SOUES, Government Agent.
1876.
Dec. 14th—T. C. CLARK—Pavilion—200 inches water from Pavilion Creek, 20 yards below Carson's ditch, for irrigating purposes, on Clark's ranch, Pavilion Mountain.
M. O'CONNOR.
Certified a correct copy.—F. SOUES, Government Agent.
No. 89.
Aug. 27th, 1881.—Recorded this day in favour of Alice Maud Martley, 75 inches of water to be taken from a rivulet which flows above her pre-emption of 160 acres in the S. E. corner of Pavilion Mountain.
F. SOUES, A. C. L. & W., Lillooet District.
1884.
June 2nd—No. 100—Recorded this day in favour of M. Gillon, the water contained in a small creek near the summit of Pavilion Mountain on the north side, said creek crosses the wagon road about half a mile from the summit, the waters to be diverted at some convenient pïint and carried to his farm on Pavilion Mountain for agricultural purposes. This water is to be measured into the 29-mile creek at some convenient point on Pavilion Mountain in compliance with section 52, Land Act 1884, and the same number of inches measured out of said creek where it passes through M. Gillon's lands.
F. SOUES, A. C. of L. & W., Lillooet District.
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1884.
July 17—No. 101—Recorded this day in favour of Michael Gillon, the water contained in a small creek on Pavilion Mountain. Said stream flows from west to east, and empties into the creek known as the 29-mile creek at a point on his farm, Pavilion Mountain. The water to be used for irrigation purposes on his farm, Pavilion Mountain.
F. SOUES, A. C. of L. & W., Lillooet District.
1884.
July 25th—No. 103.—Recorded this day in favour of Robert Carson, Pavilion Mountain, 250 inches of water to be diverted from Pavilion Creek on Pavilion Mountain for irrigation purposes on his farm at the 26-mile post.
F. SOUES, A. C. of L. & W., Lillooet District.
No. 105.
Aug. 7th, 1884.—Recorded this day in favour of John Martley, Pavilion, 200 inches of water to be diverted from Pavilion Creek for the purpose of irrigation either in the grange farm or on the purchased land of the said John Martley, and known as " The Corner," situate on Pavilion Mountain.
F. SOUES, A. C. of L. & W., Lillooet District.
No. 106.
Aug. 18th, 1884.—Recorded this day in favour of M. Gillon, the waters in a small lake about 1/4 of a mile south of his house, Pavilion Mountain, with the right to dam the outlet of said lake for the purpose of retaining the water, said water to be used for the purposes of irrigation on the farm of the said. Michael Gillon, on Pavilion Mountain.
F. SOUES, A. C. of L. & W., Lillooet District.
There does not appear to have been any such due notice given as the ordinance requires before obtaining the written authority of the magistrate and recording the same, specifying the name of the applicant, the quantity of water sought to be diverted, the place of diversion, the object thereof, and all such other particulars as such magistrate may require. Now it is clear, by section 44, that it is only after due notice as hereinbefore mentioned, specifying the above, that the authority can be obtained and recorded, nor is there a particle of evidence to show that, under section 45, previous to such authority
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being given the applicant posted up., &c., the notice provided. No permission, that I can discover, is furnished by these records which, if records they are, are vague, insensible and amount simply to nothing. The granting permission, if it had been granted by the stipendiary magistrate, is a quasi judicial act. Not only must the sanction be obtained but the applicant cannot, under the terms of the ordinance, avail himself of any permission granted until recorded.
With reference to the jurisdiction of persons exercising judicial, or quasi judicial, functions it must be as was said in The Mayor of London v. Cox by Willes J. :—
Willes J.—The conclusion that the Court is inferior has a double application, first, to the construction of the plea in this case, because " the rule for jurisdiction is that nothing shall be intended to be out of the jurisdiction of an inferior Court but that which specially appears to be so ; and, on the contrary, nothing shall be intended to be within the jurisdiction of an inferior Court but that which is so expressly alleged ;"
P. 262. Another distinction is, that whereas the judgment of a Superior Court unreversed is conclusive as to all relevant matters thereby decided, the judgment of an Inferior Court, involving a question of jurisdiction, is not final. If the decision be for the defendant there is nothing to estop the plaintiff from suing over again in a Superior Court, and insisting that the decision below had turned, or might have turned, upon jurisdiction. If the decision were in favour of the plaintiff it is still not conclusive, because " the rule that in Inferior Courts and proceedings by magistrates the maxin omnia proesumuntur rite esse acta does not apply to give jurisdiction, never has been questioned ;" Per Holroyd J., Rex v. All Saints-Southampton ;The Queen v. Bolton; Chew v. Holroyd, per Parke, B.
In the absence, then, of evidence of any compliance, in any particular, with the express provisions gf the ordinance, how can it be said that these indefinite and really meaningless, so-called, water records confer on
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any person any rights whatever in any waters of which they are not proprietors, or give a right of entry on or through the land of others for carrying the water upon, over or under such lands ? The owners of the land through which the water flows are entitled to the common law riparian rights in such waters, which includes the right of using the water for irrigating purposes, unless deprived of them by virtue of some statutory enactment interfering therewith, and subject always to the provision or reservation in said grant with reference to taking or occupying the water privileges in these words :
Provided nevertheless that it shall be lawful for any person duly authorized in that behalf by us, our heirs, and successors to take and occupy such water privileges, and to have and enjoy such rights of carrying water over, through or under any parts of the hereditaments hereby granted as may be reasonably required for mining purposes in the vicinity of the said hereditaments, paying therefor a reasonable compensation to the aforesaid John Martley, his heirs or assigns.
The defendant having pleaded that the written authority of the stipendiary magistrate of the district was never obtained, and certainly the so-called water records do not, in the most remote degree, establish that it was, I am clearly of opinion that tèe plaintiff acquired no rights under the statute to the waters as claimed by him.
It is unnecessary to discuss the question as to the meaning and application of the term " adjacent " in the ordinance.
It is clear that Clark, as the Chief Justice says, was riparian proprietor at the commencement of this action, in the possession of rights entirely irrespective of Martley, or his agreement, or of the award ; and as respects Martley it is equally clear that Carson violently repudiated the award, etc., when, as the learned Chief Justice says, " he wholly cut off Martley's
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supply." The evidence as to the agreement itself is set out by the Chief Justice in his judgment.
I cannot say that the damages awarded on the counter-claim are unreasonable or based on any wrong principle. I therefore think the appeal should be allowed and the judgment of the learned Chief Justice restored.
On the second argument I understood Mr. Blake to assent to a reduction of the damages, but I do not remember to what amount.
STRONG J. was also of opinion that the appeal should be allowed.
FOURNIER and TASCHEREAU JJ. concurred in the judgment of Mr. Justice Gwynne.
GWYNNE J.—Robert Carson and Joseph Eholt, not having any joint interest in the subject of litigation in this cause, united as plaintiffs in bringing an action against the defendants Martley and Clark for an alleged obstruction by them of a certain right to the flow of water to the properties of the respective plaintiffs, situate on Pavilion Mountain in the province of British Columbia, which right the plaintiffs respectively and independently each of the other claim to have by virtue of the statute law of the province. The defendants sever in their defence and each claims the existence of the right to the flow of water as claimed by the respective plaintiffs and pleads a counter claim for damages alleged to have been sustained by each severally by reason of an alleged illegal obstruction and abstraction by the plaintiffs of certain water, the uninterrupted flow of which to and through the properties of the respective defendants is claimed by each of them severally.
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The learned Chief Justice, before whom the action was tried without a jury, pronounced a judgment or decree in the cause, whereby it was ordered that judgment should be entered for the defendants with costs, and that judgment should be entered for the defendant Clark on his counter-claim for $500 with costs, and for the defendant Martley on his counter-claim for $200 and costs, and that the said Martley should allow to the plaintiff Carson " out of any moneys payable to him under the judgment the sum of $100 paid as part consideration of the above agreement of the day of , 1868," (no agreement being mentioned in the judgment or decree). And by the said judgment or decree it was declared that the defendants are entitled to the free and uninterrupted enjoyment of the flow of the waters of Pavilion Creek in their accustomed bed in the same manner as they respectively enjoyed the same before the plaintiffs or either of them interfered with such enjoyment, and that the defendant Clark is likewise entitled to the free and uninterrupted enjoyment of the flow of the waters of Milk Ranch Creek in the same manner as he enjoyed the same before the use and enjoyment thereof by the defendant John Martley ; and it was thereby further ordered that a perpetual injunction be awarded to restrain the plaintiffs and each of them, their and each of their servants, agents or workmen, from interrupting or interfering with the flow of the waters of the said creeks or streams, or either of them, or from permitting the same to continue unrestored, and from permitting to continue on their or either of their lands any ditches, drains, or works whereby the same is or may be wholly or partially diverted or interfered with in such manner as in any wise to infringe on the rights of the defendants or either of them. This judgment is founded upon the opinion which the learned
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Chief Justice entertained that the land ordinance of British Columbia upon which the plaintiff rested their claim was one the benefit of which was conferred only upon riparian proprietors, and that as neither of the plaintiffs was a riparian proprietor neither of them could acquire any title to a supply of water to his property under and in virtue of the ordinance ; and further, as to the claim of Carson, that assuming the ordinance to be applicable to the case of any one but a riparian proprietor the title under which Carson claimed was for other reasons utterly defective and null and void. From this judgment the plaintiffs appealed to the full court of the Supreme Court of British Columbia, and thereby prayed that the above judgment should be reversed or discharged, and that instead thereof judgment should be entered for the plaintiffs, or that a new trial should be granted. After argument of the said appeal it was ordered and adjudged by the judgment or decree of the court bearing date the twentieth day of August, 1885, that—
1. So much of the judgment of the Chief Justice as gives judgment for the defendants against the plaintiff Carson be reversed, and that in lieu thereof the plaintiff Carson do recover from the defendants jointly and severally the sum of eighteen hundred dollars together with the costs of suit, except in so far as such costs are attributable to the counter-claim of the defendants.
2. That the defendants do recover against the plaintiff Eholt so much of their costs of action as were occasioned by reason of the said Eholt being a party plaintiff in the said action.
3. That so much of said judgment as decreed to the defendant Martley, on his counter-claim, damages to the amount of two hundred dollars less one hundred dollars paid on agreement be reversed, and in lieu thereof that the defendant Martley do recover against the plaintiffs Carson and Eholt the sum of one dollar nominal damages together with his costs of his counter-claim against both plaintiffs.
4. That so much of the said judgment as awards to the defendant Clark on his counter-claim, damages to the amount of five hundred dollars against the plaintiffs Carson and Eholt be reversed and in lieu thereof that the defendant Clark do recover against the plaintiffs
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Carson and Eholt the sum of two hundred and fifty dollars together with his costs of his counter-claim.
5. That the defendants do recover against the plaintiff Eholt their cost of the appeal and also against the plaintiff Carson so much of their costs of the appeal as are attributable to the counter-claims of the said Martley and Clark ; and
6. That the plaintiff Carson do recover against the defendants the costs of his appeal except in so far as they are attributable to the counter-claims of the said defendants.
From this judgment the defendants have severally appealed to this court.
Before referring to the pleadings in the action and the matters put in issue thereby and the evidence as given in respect thereof it will be convenient, and indeed necessary, in my opinion, to a proper understanding of the rights and interests of the respective parties, to draw attention first to the condition of things in relation to the properties affected in chronological order, and to refer to several statutes of the province, in order to throw some light upon the matters in contestation on points in which the evidence, as appearing on the appeal case laid before us, seems to me to be defective in view of the magnitude of the damage alleged to have been sustained by each party and the great importance of the matters in litigation, not only as affecting the rights and interests of the respective parties to the present suit but the validity of the titles of all persons similarly situated claiming title under what are called in British Columbia " Water Records " or water rights granted or supposed to have been granted to them under the statute law of the province. To the plaintiff Carson an adverse decision upon the ground of defect in his title arising either from the non-applicability of the statute under which he claims to the circumstances of his case, or from the manner in which the powers conferred by the statute have been administered by the local authorities
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intrusted with its administration, would seem to be little short of ruinous, as rendering utterly value-less the land upon which he has settled upon the faith, as it would seem, that the statute as it has been hitherto understood and administered in the province was effectual to secure to him the benefit of the flow of water which he claims to have been granted to him, and to obtain which as absolutely necessary to the beneficial enjoyment of his land he has, as he testifies upon oath, expended upwards of $ 1,500.
On the 2nd of August, 1858, the Imperial statute 21 & 22 Vic. ch. 99 constituting the province of British Columbia was passed and proclamation thereof was made in the province upon the 19th November, 1858.
By a statute or ordinance duly passed under the provisions and authority of the above act upon the 31st of August, 1859, called the Gold Fields Act of 1859, provision was made for the regulation of gold mining in the province, and among other things for supplying watercourses for the use of persons engaged in mining to enable them beneficially to carry on their work. By this ordinance it was enacted that all persons to whom a certificate called a free miner's certificate should be given by an officer styled a Gold Commissioner should during the continuance of the certificate have the right to enter without let or hindrance upon any of the waste Crown lands not, for the time being, occupied by any other person and to mine on the land so entered upon. At this time all the land in British Columbia belonged to the Crown and gold mining was the staple industry of the province to the free and beneficial cultivation of which all other rights of property, none of which at that early stage of the existence of the province had passed out of the Crown, should be
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subservient. By the ordinance the Governor of the province was also authorized to grant leases of any portion of the waste lands of the Crown for mining purpïses, for such term of years and upon such conditions as to rent and the mode of working, and as to any water privilege connected therewith, as the Governor should deem expedient ; and it was further enacted by the ordinance, among other things, that it should be lawful for the Governor from time to time to make rules and regulations, having the force of laws, concerning all matters relating to claims, and ditch and water privileges and leases of |he auriferous lands in the colony ; and it was further thereby enacted that all disputes relating to any ditch or water privilege, or to any contract or labour to be done in respect of a ditch or water privilege, mine or claim should be investigated by the Gold Commissioner having jurisdiction in the neighbourhood who alone without a jury should be sole judge of law and fact, subject to appeal in certain cases. Under the provisions of this act the Governor of the province did upon the 7th of April, 1859, publish certain rules and regulations whereby among other things it was provided that any person desiring any exclusive ditch or water privilege should make application to the Gold Commissioner having jurisdiction for the place where the same should be situate, stating for the guidance of the Commissioner in estimating the character of the application the name of the applicant, the proposed ditch head and the quantity of water, the proposed locality of distribution, and if such water should be for sale the price at which it was proposed to sell the same, the general nature of the work to be done and the time within which such work should be completed, and that the Gold Commissioner should enter a note of all such matters as of record so that rent should be paid for such water
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privilege as provided in the regulations ; that every owner of a ditch or water privilege should be bound to take all reasonable means for utilizing water granted to and taken by him and that in the case of wilful waste the Gold Commissioner, if the offence should be persisted in, might declare all rights to the water to be forfeited ; that the owner of any ditch or water privilege should be bound to supply all applicants being free miners in a fair proportion, and should not demand from one person more than from another except when the difficulty of supply is enhanced ; that no person not being a free miner should be entitled to be supplied with water at all ; and that any person desiring to carry water through or ov?r any land already occupied by any other person might be enabled to do so in proper cases with the sanction of the Gold Commissioner. By certain other rules and regulations published by the Governor, under the provision of the said Gold Fields Act of 1859, upon the 29th day of September, 1862, it was among other things provided that owners for the time being, not being the Government, of any ditch or water privilege should construct and secure the same in a proper and sufficient manner and maintain the same in good repair to the satisfaction of the Gold Commissioner ; and by a statute or ordinance of the province duly passed, under the provisions and authority of the Imperial statute, upon the 25th day of March, 1863, it was among other things enacted that where application is intended to be made for the exclusive grant of any surplus water to be taken from any creek or other locality every such applicant, in addition to all existing requirements, should affix a written notice of all the particulars of his application upon some conspicuous part of the premises to be affected by the proposed grant for not less than five days before recording the same, and that every exclu-
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sive grant of a ditch or water privilege in occupied or unoccupied creeks should be subject to the rights of such registered free miners as should then be working or should thereafter work in the locality from which it is proposed to take such water.
From the above provisions as extracted from the Gold Fields Act and the rules and regulations made under the authority thereof, it would seem to have been contemplated that the government of the colony should or might have, or that it in fact had, ditches or watercourses dug and constructed either by the government itself wholly through Crown lands, or dug and constructed by miners under the authority and provisions of the Gold Fields Act, and which by reason of abandonment of their gold claims by the original constructors had come into the possession of the Crown for the purposes of the act. Such ditches or watercourses may, I apprehend, have been made directly by the Government Commissioner of Lands and Works independently of the Gold Commissioner, or they may have been made under contracts entered into by the Gold Commissioner under authority from the government, but however made, being constructed for the purpose of enabling free miners to acquire the use of the water running therein for mining purposes they would, so long as the Gold Fields Act should remain in force, be subject to the right of all free miners to acquire grants or leases from the Gold Commissioner under the Gold Fields Act of portions of the water running in such ditches for mining purposes notwithstanding that a portion of the land through which any such ditch or watercourse should be in part constructed should subsequently be granted to a purchaser or settler.
Now it appears that some years prior to the month of February, 1864, but when in particular or by whom
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does not appear, there had been constructed wholly through the lands of the Crown across some miles of table land, situate at a high level on a certain mountain known as Pavilion Mountain, such a ditch or watercourse from a point in the bank of a certain stream called Pavilion Creek, which flowing from the east to the west descended from the mountain through a deep precipitous gorge therein into a lake below, and from thence flowed westerly through a valley at the foot of the mountain for some distance, until it fell into the Fraser River to the west of the mountain. The reasonable presumption in the absence of any evidence to the contrary appears to me to be that this ditch or watercourse had been constructed by the Provincial Government or by authority of the Gold Commissioner under the authority of the Gold Fields Act, and that it was constructed for the benefit of all free miners mining west of the Pavilion Mountain who had a right to receive grants of the use of the water running therein under the provisions of the act, and that it was dedicated to their use subject to the provisions of the act as to the Gold Commissioner granting or leasing the use of the water therein.
It is said that prior to the month of February, 1864, certain miners who had had the use of the water running in this ditch or watercourse for mining purposes under the act upon claims on the west end of the Pavilion Mountain had ceased to work their claims ; but all the lands of the Crown being open to free miners, any such miners might at some future time acquire a claim which for the due working thereof might require the use of the waters in the ditch. Certain miners abandoning their claims did not divest the Gold Commissioner of the right to let claims in the same locality to other miners, or deprive free miners
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of their right to mine in that locality ; and as such miners might require the use of the waters in this ditch as necessary for mining purposes, the watercourse itself must needs, as it appears to me, have nevertheless continued to remain under the jurisdiction of the Gold Commissioner, and dedicated to the purposes of the Gold Fields Act. In this condition of things and while the ditch remained open and water flowing in it, although it may not then have been in actual use by any free miner in the working of any claim, the Crown by letters patent bearing date 11th February, 1864, under the seal of the province, granted to the defendant Martley in fee a portion of the table land on the Pavilion Mountain by the following description :
All that tract or parcel of unsurveyed land in British Columbia consisting of fourteen hundred and forty statute acres of land, be the same more or less, with the appurtenances situate at or near the southeast extremity of the able land known as Pavilion Mountain and immediately above the homestead occupied by the said John Martley in the valley ; and bounded approximately as follows : On the north by the open range of Pavilion Mountain, the base of which is precipitous and well defined ; on the south by the crest of Pavilion Mountain overhanging the valley, or for greater accuracy an imaginary line between two stakes placed east and west along this southern boundary, on the east by the main creek which, coming through a deep gorge in the mountain, runs through the valley into the Fraser River, on the west by a lesser creek which, running from the mountain, falls close by the house of the aforesaid John Martley, in the said valley.
Now, from the above description and the map laid before us it appears that although the eastern boundary of the piece granted is stated to be a creek descending from the mountain that creek where it forms a boundary of the piece granted is described as descending through a deep gorge in the mountain into the valley below, so that from this, as well as from other matters appearing in the case, it seems clear that the grantee of that piece of land never
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could within the bounds of the piece granted draw off any of the waters of the creek on to the piece granted for irrigation or other purposes. In order to draw water from the creek on to the above piece granted to Martley it would be necessary to take the water from a point high up in the creek a long distance above the nearest boundary of the land granted to Martley where the waters of the creek pass through the lands of the Crown. And for this reason it was that the ditch head of the ditch or watercourse before spoken of as having been constructed wholly through the lands of the Crown on the table land of the Pavilion Mountain was placed at a point in the above creek distant from about one mile and a quarter higher up the stream than the above piece granted to Martley, from whence it follows that Martley in virtue or by force of the letters patent granting to him the above piece of land acquired no right at common law or otherwise in the water running from time to time through the artificial watercourse, so as aforesaid constructed prior to his grant, and that he took the piece granted subject at least to a right subsisting in the Crown to maintain that ditch or watercourse for the public purposes for which it was constructed. In this position matters continued until the following year, 1865 ; for the fact that Martley on the 1st December, 1863, before he had acquired title to the land, mortgaged it to certain persons, who upon default being made in the payment by Martley of a sum of money thereby secured on or before the 1st day of June, 1864, were empowered by a clause in the mortgage to sell the land freed and discharged of all claim of Martley, is immaterial to the consideration of the points in discussion. It may be here observed that the piece of land spoken of in the above letters patent as the " homestead occupied by the said John Martley in
[Page 653]
the valley" consisted of four pre-emption claims of 160 acres each, which had been pre-empted by Martley in his own name and in that of his wife and of a son and of a daughter in 1861, the whole together forming a tract of 640 acres extending in length along the stream flowing through the valley and in depth about a quarter of a mile from the stream to the crest of the table land on the mountain overhanging the valley.
On the 11th day of April, 1865, there was passed a statute called the " Land Ordinance of 1865," certain clauses of which headed " Water " are important and which as interpreted by the 3rd section of another statute or ordinance passed the 31st day of March, 1866, read as follows :
WATER.
44. Every person lawfully occupying and “ bonậ fide” cultivating lands may divert any unoccupied water from the natural channel of any stream, lake or river adjacent to, or passing through such land, for agricultural purposes upon obtaining the written authority of the Stipendiary Magistrate of any District, acting as Assistant Commissioner of Lands and Works, for the purpose and recording the same with him after due notice as hereinafter mentioned specifying the name of the applicant, the quantity sought to be diverted, the place of diversion, the object thereof, and all such other particulars as such magistrate may require.
45. Previous to such authority being given the applicant shall put up in a conspicuous place on each person's land through which it is proposed that the water should pass and on the District Court-house notices in writing stating his intention to enter such land and through and over the same to take and carry such water, specifying all particulars relating thereto, including direction, quantity, purpose and term.
46. Priority of right to any such water privilege, in case of dispute shall depend on priority of records.
47. The right of entry on and through the lands of others for carrying water for any lawful purpose upon, over or under the said land, may be claimed and taken by any person lawfully occupying and bonậ fide cultivating as aforesaid and, (previous to entry) upon paying or securing payment of compensation as aforesaid for the waste or damage so occasioned to the person whose land may be wasted or damaged by such entry or carrying of water.
[Page 654]
48. In case of dispute such compensation or any other question connected with such water privilege, entry or carrying, may be ascertained by the Stipendiary Magistrate of the District, acting as Assistant Commissioner of Lands and Works, in a summary manner at the option of either of the contending parties either with or without a jury of five men to be summoned as in ordinary cases.
50. Water privileges for mining or other purposes not otherwise lawfully appropriated may be claimed, and the said water may be taken upon, under or over any land so (as in the act) pre-empted or purchased as aforesaid by obtaining a grant or license from the Stipendiary Magistrate of the District, acting as Assistant Commissioner of Lands and Works, and previous to taking the same paying reasonable compensation for waste or damage to the person whose land may be wasted or damaged by such water privilege or carriage of water.
The first question which arises upon this statute is : Are riparian proprietors the only persons who come within the operation of the benefits conferred by the above clauses of the act, and can they only draw off water from the streams, &c., upon which they are such riparian proprietors, or does the statute apply for the benefit of all persons requiring the use of water for agricultural or other purposes, whether they be riparian proprietors or not ? And, in my opinion, the answer must be that the act is not limited to riparian proprietors but applies equally to persons who are not such proprietors, and that a contrary construction would make the statute quite useless. Instead of contemplating an addition to the common law right of riparian proprietors to the natural flow of the waters in a stream flowing through their properties, the design of the statute was to make provision for enabling all persons requiring the use of water for agricultural or other purposes to obtain it from all neighbouring streams or lakes from which it could advantageously be brought, thus qualifying the common law right of riparian proprietors by substituting therefor those statutory rights which the conformation of the country made absolutely necessary to the bene-
[Page 655]
ficial use of by far the greater portion of the whole province consisting, as it does, chiefly of mountain ranges and elevated table lands on the mountain slopes through or near which mountain streams flow rapidly down steep descents through precipitous gorges into valleys which are in many places narrow, and where only riparian proprietors could avail themselves of any benefit from their common law right to the natural flow of running water. The provisions made by the statute do no prejudice to the riparian proprietors who can avail themselves equally with all other persons of the benefits of the act, priority of a grant, recorded under the act, of water not otherwise occupied or appropriated alone giving precedence to any one. For my part I can entertain no doubt as to the language of the act. It does not say that any riparian proprietor on any stream, &c., may draw off from the same stream as it flows through the land of some other person, the waters on any part of the waters of the stream and convey them through a ditch or channel constructed on the lands of one or more riparian proprietors to his own land for his own use ; but it plainly says that every person lawfully occupying and bonâ fide cultivating lands may divert the water of any stream, lake, or river adjacent to, or passing through, such land upon obtaining the written authority of the Stipendiary Magistrate of the District acting as Assistant Commissioner of Lands and Works so to do. Then by another section it is plain the lands of more persons than one may intervene between the stream, lake or river from which the water is taken and the lands to which it is conveyed ; then another section enacts that the right of entry upon and through the lands of others for carrying water for any lawful purpose upon, over or under the said land may be claimed and taken by any person
[Page 656]
lawfully occupying and bonâ fide cultivating as aforesaid upon payment of compensation for any damage done to the person whose land is entered upon for such carriage of water.
Then another section provides in general terms that water privileges may be claimed for mining and other purposes, an expression large enough to include all lawful purposes, and that the said water may be taken upon, under or over any land pre-empted or purchased under the act by obtaining a grant or license from the Stipendiary Magistrate of the District acting as Assistant Commissioner of Lands and Works—and previous to taking the same paying reasonable compensation to the person whose land may be damaged thereby.
There may be some difficulty at first sight in construing the act by reason of an apparent repetition of powers which upon a careful consideration appear to me not to be repetitions. That, however, the act is not confined in its application to riparian proprietors there can, I think, be no doubt.
In construing the act we must attribute a distinct purpose to the several sections of the act above referred to. The true construction of the act appears to me to be, that by the 44th section leave to divert any unoccupied water may be obtained upon the written authority of the Stipendiary Magistrate acting in the capacity of Assistant Commissioner of Lands and Works. In that case the magistrate as such Assistant Commissioner is directed to see that before he gives the leave the provisions of the 45th section have been complied with ; but these provisions are merely directory, for in a province only opened to settlement in 1859 the lands to be affected in the greater number of cases would be the lands of the Crown under the control of the Assistant Commissioner himself of Lands and Works in the
[Page 657]
district, so that in those cases there would be no person to whom the notice referred to could be given. Then by the 47th section the privilege may be claimed, that is to say as I read the act, before the Assistant Commissioner of Lands and Works who must determine whether, and to what extent, the water sought to be diverted is unoccupied, and what would be a reasonable quantity to allow to the applicant for the purpose for which the water is required by him, but the questions of compensation and as to the course the channel for conducting the water shall take through the lands in which it has to be dug, &c., &c., may be left by the Assistant Commissioner to be agreed upon by the parties concerned either of whom, if they fail to agree, may by the 48th section require the Assistant Commissioner himself to determine the questions either with or without a jury, and lastly, by the 50th section, provision is made that water privileges for mining or other purposes may be obtained by a grant or license made by the Stipendiary Magistrate, acting as Assistant Commissioner of Lands and Works, a higher species of right than the " leave " in the 44th section. In that case it appears to be left to the discretion of the magistrate acting as aforesaid to determine the propriety of making the grant in each case, but the making it is of no avail to the party obtaining it until he shall have made reasonable compensation for the waste or damage to the person or persons whose lands may be wasted or damaged by such water privilege ; and the propriety of making such grant cannot be questioned after it is made, nor is there any reason why it should be as it cannot be acted upon on the lands of any person which may be affected by it until the parties whose lands may be damaged thereby are compensated. In case the parties should fail to agree as to the compensation,
[Page 658]
I apprehend that the decision of the Assistant Commissioner could be invoked in this case under the 48th section equally as in the case mentioned in the 47th section. The object of the statute, as it appears to me, plainly was to provide means by which, in a country of such peculiar conformation as British Columbia, water required for the beneficial use of land or for any other lawful purpose, including mining might, be obtained with the greatest facility and in the most speedy and summary mode possible, and that no common law grant of the easement is at all necessary. That the statute should be construed as an encroachment upon that venerable embodiment of all wisdom, the common law, is really no hardship but quite the reverse in a country of such modern origin and of such peculiar conformation as British Columbia. The legislature of that country are the best judges of what is most suitable to the condition of the country, and they have, in my opinion, in clear language enough expressed their intention to be as above stated, and that authority to determine in what manner the waters in all the streams, lakes and rivers in this mountainous country shall be distributed among all persons requiring the use of such water, whether for mining or any other lawful purpose, is confided to the discretion of the Stipendiary Magistrate of the district in which such water is, acting in his capacity of Assistant Commissioner of Lands and Works which, as well as Stipendiary Magistrate he is.
No one has any right to complain of its provisions ; it does no prejudice to any one, for all Crown grants in the colony have been and are made subject to it.
It would be useless to expect that the table lands upon the mountain ranges stretching throughout the colony should ever attract settlers upon them, or that the staple wealth of the colony could ever be worked
[Page 659]
beneficially, if riparian proprietors of land should be permitted to set up the common law of England against the advancement of the material interests of the colony. To my mind the act is infinitely more suited to the condition of the colony and better calculated to promote the interests of all persons becoming settlers in it than the common law of England, however admirable it be, and however entitled to the designation of " perfection of wisdom," when applied to the condition of a country like England.
To carry out the provisions of the act a book appears to have been opened in each district of the colony in which the custom was to enter all grants of water privileges made under the act as a record of the transaction. This book in which the grants are entered under the heading " Water Records " is preserved as a public record of such grants in the office of the Assistant Commissioner of Lands and Works in the district in which the water privilege granted is situate. The defendant Martley availed himself of the act by having recorded in the book opened for the purpose in the district in which the streams under consideration in the present case are situate, grants of water privileges made to him for the benefit of his aforementioned location in the Pavilion Creek Valley called the Grange, as follows :
WATER RECORDS.
No. 22.
| Octr. 3rd, 1866. |
John Martley. |
The right to the water of the creek crossed by the trail from the 29-mile house Pavilion Mountain to Captain Martley's house at the Grange Pavilion Creek.
A. C. ELLIOTT.
No. 28.
January 4th, 1867.—The right to the water of a creek running from Pavilion Mountain into Pavilion Creek Valley, and running close to Captain Martley's house.
| Per A. C. ELLIOTT. |
T. H. SHERWOOD. |
[Page 660]
The first of the above entries relates to a creek now called Gillen's Creek which flows down from a part of the table land north of Martley's location in the valley into and through a portion of the location lying west of his house on the Grange farm until it reaches Pavilion Creek, and the other of the above entries relates to a creek now called Milk Ranch Creek, which also flows down from another part of the table land north of the Martley location, but at some distance east of Gillen's Creek, and flowing through a portion of the Martley location east of the house thereon also falls into Pavilion Creek. This Milk Ranch Creek is supplied at a point above the table land overhanging the easterly section of the Martley location in the valley with the waters of another creek descending from the mountain and called now " Island Creek."
On the 20th January, 1868, the plaintiff Carson acquired, by right of pre-emption under the provisions of the above mentioned Land Ordinance of 1865, 160 acres of land called a ranch situate upon a part of the table land of Pavilion Mountain which overhangs the Martley Valley location ; the southerly limit of Carson's ranch constitutes part of the northerly limit of the westerly portion of the Martley location, so that Carson's land or ranch although on a much higher elevation abuts upon the Martley location in the valley, and by reason of its elevation, although it is separated from Pavilion Creek by but a short space across the Martley Valley location which is there narrow, can have no benefit from any water in the Pavilion Creek, nor as it appears from any creek in the neighbourhood, to supply his farm otherwise than by obtaining water to be drawn from the Pavilion Creek at a point high up and at the distance of some miles easterly of his land where the Pavilion Creek descends from the mountain, and before it enters the gorge by which through precipitous
[Page 661]
banks it descends into the valley. The most suitable if not the only point in the Pavilion Creek from which water could be drawn to Carson's land appears to be that where the ditch head of the ditch or watercourse hereinbefore mentioned to have been constructed through the lands of the Crown for mining purposes was situate, and as this ditch or watercourse was still open and passed a short distance to the north of Carson's ranch it presented a favourable channel, if not the only one, by which Carson could procure a supply of water which was absolutely necessary for the beneficial enjoyment of his land.
The same person who by the Land Ordinance of 1865 was authorized to make grants of and to distribute unoccupied water flowing in all streams, lakes and rivers for agricultural purposes was, as already shown, the person who was also by that act authorized to grant and distribute unoccupied water for mining or any other lawful purpose, namely, the Stipendiary Magistrate in the district in which the water sought to be diverted was situate, acting in his capacity of Assistant Commissioner of Lands and Works.
He was the person who alone was competent to determine whether water required for agricultural purposes or any lawful purpose other than mining, could be spared as unoccupied and should be granted from the waters supplied by the Pavilion Creek to the ditch or watercourse so as aforesaid originally constructed for mining purposes. That was a question with which none but persons engaged or authorized and intending to be engaged in carrying on mining operations had any concern and the Stipendiary Magistrate acting in his capacity of Assistant Commissioner of Lands and Works had, as it appears to me, the fullest authority in the exercise of his sole discretion to determine it.
[Page 662]
Accordingly Carson made application to Mr. Sanders, who as Stipendiary Magistrate, acting as Assistant Commissioner of Lands and Works, had in January, 1868, recorded his pre-emption grant of his land, for a grant of 200 inches of water to be conveyed to his farm though this ditch which in his application he appears to have described as—
A ditch on Pavilion Mountain coming from a large creek on a mountain to about opposite 26-mile post, said water ditch for farming purposes on my ranch. I wish to record 200 inches of water.
This from the entry made in the record book of grants of water privileges would seem to have been the form of Carson's application. Upon this application Mr. Sanders, as and being then the Stipendiary Magistrate acting as Assistant Commissioner of Lands and Works in the district, entered in the water record book a record of a grant to Carson of 200 inches of water, describing the ditch through which the water is to be conveyed in the above terms as seemingly extracted from Carson's application, and then signed the record thereunder with his own name as stipendiary magistrate ; the mining ditch already referred to corresponded with the description of the ditch mentioned in Carson's application through which he desired to get the water required ; there was no other ditch of any description then in the neighbourhood, and there never has been entertained any doubt that the said mining ditch was, and alone could be, the ditch referred to in the application of Carson, and in the record of the grant, which latter as certified by a certified copy from the government record in the custody of and under the hand of the Assistant Commissioner of Lands and Works is as follows, under the heading " Water Records " :—
[Page 663]
1868, May 16—No. 43.
Robert Carson, Pavilion Mountain, 200 inches to ditch on Pavilion Mountain coming from a large creek on a mountain to about opposite the 26-mile post. Said water ditch for farming purposes on my ranch. I wish to record 200 inches of water.
At the foot of the above record of grant the magistrate signed his name.
E. H. SANDERS S.M.
These letters S. M. meaning stipendiary magistrate.
Now, although the form adopted for recording these water grants might certainly have been more perfect than that which by the record book appears to have been originally made use of we cannot, for imperfections in form, pronounce the record to be void. In a new colony having a very sparse population, and whose officials have had little experience, imperfections of this nature which time and experience remove are very common and should be regarded leniently, and we must be careful not to frustrate manifest intention by too acute verbal criticism. There can be no doubt that the entries made in this book were intended to serve as a record, and the only record, of grants of water intended to have been made by the officer having sole authority under the statute to make them. With respect to this record of Carson's grant, which is more perfect than some others (notably those of the defendant Martley himself in which no quantity is mentioned), if instead of inserting at the foot of the grant of Carson's application in the first person, as made by him, the magistrate had used the third person so as to adapt the phraseology which was suitable in an application to the purpose for which the magistrate was using it, namely, insertion in the record of the grant made by him to Carson, the record would not have been open to the criticism to which it has been subjected ; thus—" said water ditch for farming purposes on his ranch," " he wishes to record 200 inches
[Page 664]
of water." With a refinement of criticism more specious than sound it has been contended, however, that the record of this water grant (although entered in the book kept for the special purpose of recording water grants, and although by its heading it appears to have been intended to be the record of a grant of 200 inches of water on Pavilion Mountain to Robert Carson, and although it is signed by the stipendiary magistrate, the only officer competent and authorized by the statute to make the grant), is utterly null and void and is in fact an application merely for a water grant by the stipendiary magistrate himself.
Now the ditch or watercourse through which the water was to be conveyed to Carson's farm, as already pointed out, was constructed by or for the government wholly through lands of the Crown and was under the administration and control of the Gold Commissioners prior to the passing of the above Land Ordinance of 1865, and then by section 50 of that act came under the administration and control of the Stipendiary Magistrate of the district acting in his capacity of Assistant Commissioner of Lands and Works. The defendant Martley had not in virtue of his letters patent of February, 1864, any interest whatever in the waters entering and running in the ditch, nor any right in law to the use of, or to obstruct the free and uninterrupted flow of, the water in this artificial watercourse which was by statutory authority under the sole control and administration of the Stipendiary Magistrate of the district acting in his capacity of Assistant Commissioner of Lands and Works. He had no claim or right to compensation for the ditch which had been constructed before he obtained the grant specified in his letters patent. There was no intention to grant to Carson any right to enter upon Martley's or any other person's land for the purpose of making any new chan-
[Page 665]
nel by which the water should be conveyed to Carson's farm. There seems therefore to have been no necessity or occasion that Martley or any other person should have had given to them the notice mentioned in the 45th section of the act. But however this may be, and assuming Martley to have been entitled to some compensation by reason of the land granted to him having been, if it was, exposed to damage by reason of dirt taken out of the ditch in the course of any cleaning of it which may have been necessary being thrown upon it, which seems to me to be the utmost he could claim, still the grant to Carson was perfectly good, if not under all at least under some or one of the three sections 44, 47 or 50 of the act ; and, moreover, for reasons appearing further on, it is not open to either of the defendants to make any objection to it in the present action.
Carson appears to have proceeded under his grant to perform some work in the ditch so as aforesaid already in existence, whether of the nature of taking dirt out of it and cleaning it, or of laying a flume in it to measure his 200 inches of water at the ditch head or what else does not appear. The greater part of his work would necessarily be in that part of the ditch which passed through lands still belonging to the Crown. When, however, he came to that part of the ditch which was within the bounds of the lands granted to Martley by the letters patent of February 21, 1864, Martley made some objection, the nature of which or the reasons upon which it was founded do not appear. The defendant Martley says that he brought an action of trespass against Carson before Mr. Sanders (who as stipendiary magistrate aforesaid had given to Carson the grant which is as above stated recorded in the record book) and that Mr. Sanders gave judgment in his (Martley's) favour, and suggested an
[Page 666]
arrangement which as he says did take place. This statement cannot be accepted as evidence in the sense in which Mr. Martley plainly intends it to be understood, namely, that Carson's title to the use of the water in the ditch consists solely in a verbal arrangement with him, Martley, as the recognized and only person who was competent to give to Carson a grant of such use as of an easement in and upon his, Martley's, land, and that such right not having been granted by a deed executed by Martley it is void. That an arrangement was made between Martley and Carson there can be no doubt, and that it consisted in Carson paying $100 to Martley and in agreeing that Martley might take 50 inches of water out of the flume Carson was making and laying in the ditch, and that in pursuance of such agreement Martley put into Carson's flume a box to take such 50 inches of water may be admitted, but this admission is susceptible of a very different construction from that part of the transaction as represented by Martley. In 1868 the only character in which Mr. Sanders could have taken cognisance of any complaint made by Martley against Carson was either as a judge of the County Court under the County Court Ordinance of 1867, or as Stipendiary Magistrate acting as Commissioner of Lands and Works under the Land Ordinance of 1865, section 48. Now if Martley's complaint was the subject of county court action, and if, as Martley says, Mr. Sanders gave judgment in his favour, the subject matter of such action as well as the judgment therein could only be proved under the provisions of section 111 of the Imperial statute 9 & 10 Vic. ch. 95, which is incorporated into and made part of the County Court Ordinance of 1867, namely, by copies of the proceedings of the court certified under the seal of the court, and signed and certified by the clerk of the court. In the ab-
[Page 667]
sence of such evidence it is impossible to assume that Martley's complaint took the form of an action in the county court. Indeed there is the strongest possible presumption, as it appears to me, not only that it did not assume the form of an action in the county court, but that it was a complaint made under the 47th section of the Land Ordinance of 1865.
There is no evidence of the committal by Carson of any act over which the county court could have assumed cognizance. That whatever Carson did was in assertion of a right claimed by him under the water grant in his favour recorded by the Stipendiary Magistrate acting as Assistant Commissioner of Lands and Works, and that such act was done in the ditch or watercourse so as aforesaid constructed, there is not raised any doubt. That this ditch was by the Land Ordinance of 1865 under the control and administration of the Stipendiary Magistrate of the district acting as Assistant Commissioner of Lands and Works there can, I think, be no doubt ; that it was in the assertion of his right to make the grant to Carson under the Land Ordinance that Sanders acted when he made and recorded the grant to Carson there can be no doubt. The assertion by Carson of his right and title under the water grant to the enjoyment of the easement he was claiming in the ditch or watercourse, and Martley's assertion on the contrary of sole title in himself to grant the easement as being one to be enjoyed on land of which he claimed to be seized in fee, if such a claim had been asserted by him, must of necessity have raised a question of title to the land in which Carson was asserting his claim to an easement under his water grant so as to have excluded the jurisdiction of the County Court, if Martley had asserted in the County Court a right to interfere with Carson's proceedings upon such ground ; whereas Martley may
[Page 668]
have deemed himself to be, whether in point of law he was or not under the circumstances is immaterial, entitled to compensation under the Land Ordinance Act before Carson should interfere with that portion of the ditch which passed through the land granted to Martley by the description contained in his letters patent of February, 1864 ; and in truth and in fact he would, I apprehend, have been entitled to compensation if, as possibly may have been the case, any dirt which in cleaning the ditch it may have been necessary to remove had been, or had to be, thrown upon Martley's land. That would have been a matter over which Mr. Sanders as the Stipendiary Magistrate who had made the water grant to Carson had undoubted jurisdiction, and he might have suggested to the parties that they had better come to an agreement as to compensation. What may have been actually passing in his mind it is difficult after the lapse of twenty years now to determine. The fact that the arrangement which was made was verbal was quite consistent with its having been made under the 48th section of the Land Ordinance of 1865, whereas it is quite inconsistent with its having been intended to be, as is now contended, an imperfect grant of an easement over Martley's land made by him to Carson. There is, therefore, in my opinion, the very strongest possible presumption that the arrangement was, and was intended to be, an arrangement under the 48th section of the Land Ordinance. There can be no doubt that the intention of the parties was that the arrangement should be an honest, perfect and effectual one for both parties to it. At the time of its having been entered into Carson had his water grant recorded entitling him to 200 inches of water to be taken from the Pavilion Creek by a flume to be laid by Carson in the ditch so constructed as aforesaid. If the lands through which the ditch was
[Page 669]
constructed were all of them still Crown lands there was no person to be compensated under the statute before the grant should be acted upon and the water taken. If, however, there was any person whose lands through which the water should be so conducted to Carson's farm would be wasted or damaged thereby Carson's grant although made to him would, by a provision in the statute, be of no avail to him as to such lands until he should make an arrangement with such person as to compensation. Carson was claiming the benefit of his grant and was proceeding to avail himself of it, under the impression no doubt that as the ditch was constructed in manner aforesaid, and as he had a grant under the statute and recorded by the Assistant Commissioner of Lands and Works, the officer of the government having control of all public lands and works and the making of water grants under the statute, there was no person to be compensated for his laying his flume in the ditch and doing any necessary repairs in it to enable him to do so. Martley, however, (whether or not under an erroneous impression as to his rights, does not now matter) objected to Carson's interfering in any manner with that part of the ditch where it lay through his land, and Carson (whether under any obligation or not so to do) agreed to pay Martley and did in fact pay him $100 and agreed also to let him have fifty inches of water from his, Carson's, flume and thereupon proceeded under his water grant to do all work necessary to the laying of his flume from the ditch head at the Pavilion Creek to his farm at a cost of $1,500, as he says, and suffered and permitted Martley to put a box into his flume to take the 50 inches of water at a place where the ditch and flume therein crossed the Island Creek. Now as this arrangement could only be good and effectual by regarding it as one made under the Land Ordinance
[Page 670]
by way of compensation to Martley thereunder it must be so regarded ; and Carson's grant of the 200 inches of water made to him by the Assistant Commissioner of Lands and Works became thereby absolutely indefeasible as against Martley and all persons claiming under him the land granted by the letters patent of February, 1864, who cannot now be permitted to call in question Carson's right to the benefit of the water grant made to him under the statute for any real or supposed defect either in form or substance. Martley having, under the arrangement made by him with Carson, put a box into Carson's flume so as to draw off his 50 inches of water differences arose in 1870 between them as to the use made by each of the water during 1869, which was a dry season ; each party seemingly complaining of the other having done damage by a use of the water contrary to the arrangement. Now these differences had plainly no relation whatever to any question as to the terms upon which Carson should acquire, or had acquired, a grant of any easement from Martley. Neither Carson nor Martley can be assumed to have contemplated submitting any such question to arbitration, nor in point of fact was any such arbitrated upon ; but differences as to any damage which either may have sustained, or may have supposed that he had sustained, in the dry season of 1869 by a greater use of the water than was in accordance with the arrangement, treating it as one made under the Land Ordinance as above suggested, and for the purpose of regulating in future the use of the water under the arrangement so as to prevent the recurrence of such differences, were matters which well and reasonably might have been submitted by both parties to arbitration and by a parol submission ; and this is what, judging from the award, appears to have been done. The award was produced in evidence
[Page 671]
at the trial but is not in the appeal case as an exhibit ; it is however quoted in full in the judgment of the full court on the appeal to it from the judgment of the learned Chief Justice who tried the case. It is as follows and is dated the 2nd June, 1870 :
We have been appointed arbitrators in a cause between Captain Martley and Robert Carson respecting the right to water in a certain ditch passing through Captain Martley's farm on Pavilion Mountain and damages that either may have sustained by the loss of water for irrigation in the year 1869. We find that neithe? is entitled to damages. That while Captain Martley has a sufficient supply of water in the two creeks passing into his farm he shall not be entitled to any water from Carson's ditch, but in case of scarcity Captain Martley shall be entitled to half the water in Carson's ditch, the half not to exceed in any case fifty inches and he will be entitled to get this for use on his farm round his house, and to take it out of the ditch where it joins the Island Creek. Captain Martley may use these fifty inches on Pavilion Mountain if he chooses.
| Signed, |
GEORGE A. KELLEY. |
JOSEPH L. SMITH.
J. S. SWART.
In the above award it is to be observed that the ditch is called Carson's ditch, and what the award recognizes Martley to be entitled to is 50 inches of water from Carson's ditch (not that Carson is entitled to any water from a ditch of Martley). Indeed it appears that from the time of the water grant to Carson the ditch through which the water was conveyed to his farm became known, not only popularly throughout the country, as Carson's ditch, but that it was also recognized as such by the Assistant Commissioner of Lands and Works in other grants of water made and recorded by him. In the water record book a grant is recorded on the 16th May, 1870, as having been made in favour of one William Sampson of a right to 200 inches of water from a large creek supplying Carson's ditch.
Upon the 10th of August, 1870, two months after the above award was made, the mortgagees in the herein-
[Page 672]
before mentioned mortgage executed by Martley sold and conveyed the land therein comprised, under the power of sale therein contained, to one Beaven in fee, and upon the 27th of the same month of August Martley, by a deed of grant and confirmation reciting that sale, granted, confirmed and assured the land to Beaven in fee by the description contained in the letters patent to Martley of 7th February, 1864.
Now, bearing in mind the facts that the ditch head of this ditch (now called Carson's ditch) was situate on the lands of the Crown about one mile or one mile and a quarter above the land granted to Martley, and that the ditch was dug for that distance from its ditch head before it entered that part of the Crown lands which, subsequently to the construction of the ditch, was granted to Martley ; and that Martley had never acquired any water grant whatever under the Land Ordinance, it follows, in my opinion, that he never had at any time a legal right to draw water from that ditch on to his land ; but however this may be, if he ever had any such right in virtue of his letters patent such right absolutely ceased and determined, if not on the 10th August, 1870, at least upon the execution by him of the deed of the 27th August, 1870, to Beaven ; so that after that date he could have had no claim whatever or pretense of claim to draw off water from the Carson ditch where it crossed Island Creek or any other point unless under Carson's recorded water grant, and the agreement for compensation made with Carson and the award. He did, however, draw off his 50 inches of water out of the Carson ditch at the place specified in the award, namely, where it crossed Island Creek, continuously until 1878, when, as he says himself, he told Carson that he would be content with 30 inches, and that Carson accordingly put in a 30-inch box through which Martley received water until the diffi
[Page 673]
culty arose which was the cause of this action having been commenced on the 7th July, 1884. We have thus arrived at the conclusion, which I confess appears to me to be incontrovertible, that as during all this period from the 27th August, 1870, to the occurrence of the difficulty which was the cause of the commencement of this action on the 7th July, 1884, a period of fourteen years, Martley had no legal right whatever entitling him to draw water from the Carson ditch unless in virtue of Carson's water grant and his agreement with Martley for compensation and the award, it must be presumed that the water was taken under this the only title which Martley had and could assert, and that in this action he must be concluded from disputing a title the benefit of which he has so long enjoyed. It seems, therefore, to me to be clear that as against him, and Clark also as claiming under him the land granted by the letters patent of February, 1864, Carson's right to draw his 200 inches of water from Pavilion Creek under his grant is indisputable, and any interference by Martley or Clark with such right constitutes an actionable wrong to Carson entitling him to recover satisfaction for such damage as he may have sustained which is reasonably attributable to such interference.
Now as to the defendant Clark he obtained no title to any land until the 9th July, 1875, when he had recorded a pre-emption title to 320 acres of land on the Pavilion Mountain, bounded on the north-west by Sampson's farm and on the south-east by Beaven's land ; this latter land is that conveyed to Beaven by Martley. This land so pre-empted by Clark is, equally as is Carson's, situate on the table land north of Martley's location in the valley, but through it flows Milk Ranch Creek, which upon Clark's farm is joined by Island Creek and
[Page 674]
flows down the crest of the mountain across Martley's grange from and to the east of his house into Pavilion Creek. Through the westerly part of Clark’s pre-emption land there flows another small stream into Gillen's Creek where it flows through Martley's location in the valley. Clark would seem to have found these streams so flowing through his land to be insufficient for his farming purposes, in consequence probably of Martley having claimed to have acquired by his hereinbefore mentioned water records of 3rd October, 1866, and the 4th January, 1867, a right to have the uninterrupted flow of all the water in these streams down from the mountain into and upon the location in the valley, a claim which I presume was founded upon the last sentence in the 48th section of the Land Ordinance of 1875, which is a repetition of the last sentence of the 30th section of the Land Ordinance of 1870, which seems to enact that no person shall have exclusive right to the waters of a natural stream, even though running through his land, unless under a water grant recorded under the act. Clark therefore applied under this Land Ordinance of 1875 for a grant of water from Pavilion Creek which is recorded on December 14, 1876, as granted to him in these words :—
T. C. Clark, Pavilion, 200 inches of water from Pavilion Creek 20 yards below Carson's ditch for irrigating purposes on Clark's ranch, Pavilion Mountain.
This grant, it will be observed, as did that to Sampson in 1870, mentions Carson's ditch as one recognized, by the authorities alone having authority to make water grants, as belonging to Carson, and this in so very marked manner as to make the reference to the Carson ditch form such an essential part of the grant to Clark by defining the precise point from which he is permitted to take the water granted to him as to seem to attach to his grant a necessary obligation upon
[Page 675]
him to recognize the Carson grant as one with which he cannot interfere, for he is permitted only to take the water at a point " 20 yards below Carson's ditch." Under this water grant Clark made a ditch from the Pavilion Creek placing his ditch head as directed in his grant at a point 20 yards below the ditch head of Carson's ditch. The ditch so constructed by Clark is a little to the south of and nearly parallel for some distance with Carson's ditch ; it runs first through the lands of the Crown, then through Beaven's land formerly belonging to Martley, and then takes a southerly course and crosses Island Creek some distance south of the point where Carson's ditch crosses that creek, then it crosses Milk Ranch Creek in Clark's pre-emption lot through which it passes and discharges its waste water into the small stream which falls into Gillen's Creek, and so through Martley's location in the valley into Pavilion Creek. Through this ditch Clark from the time of its construction has conveyed, and at the time of the commencement of this action did convey, and still conveys the waters which he takes from Pavilion Creek to his said pre-emption lot, as the only course by which water can be conveyed from Pavilion Creek to his said lot. Now it is obvious that Clark can claim a right to water running in this ditch only in virtue of the same title as that under which Carson claims, namely, a grant under the Land Ordinance, and it appears to me the reference to " Carson's Ditch " in the record of Clark's water grant so imports into this latter a recognition of Carson's grant as to conclude Clark from disputing its validity, even if it was open to impeachment for any cause, which for the reasons already given in discussing Martley's case I think it is not. If, however, either Carson or Clark should wilfully waste any of the water acquired under the grant to either the case is brought within the 55th section of the Land Ordinance of 1875, which enacts that :
[Page 676]
Any owner of any ditch or water privilege who shall wilfully waste any quantity of water heretofore or hereafter acquired by record or otherwise by diverting any more of it from its natural course, through any ditch or otherwise, than the quantity actually required by him for irrigation or any other purpose, shall be punished by a fine not exceeding one hundred dollars for each such offence to be recovered before a justice of the peace, stipendiary magistrate, or commissioner in a summary manner, and in default of payment by distress, or by imprisonment for any period not exceeding six months.
Now upon the 7th July, 1884, this action was commenced and the pleader in the statement of claim filed on behalf of Carson (I omit all reference to Eholt for the present) asserts title under his water grant of the 16th May, 1868. He inaccurately avers that in 1867 Carson made the ditch which, as already stated, was some years previously constructed by, or by authority of, the government for mining purposes ; he then sets out the award made in 1870 in the arbitration between Carson and Martley, and avers that Martley never had obtained any water grant recorded in his favour entitling him to take water from Pavilion Creek and insists that by reason of his not having done so he could acquire no interest under the award. This contention was presumably based upon the construction put by the pleader upon the 30th section of the Land Ordinance of 1870, which became law upon the 1st of June, 1870, the day before the making of the award, and which is repeated in the 48th section of the Land Ordinance of 1875 and is still in force, to the effect apparently that no person can have exclusive right to the waters, even of a natural stream running by or through his land, except under a water grant recorded under the act. The statement then avers the cause of action as follows :—
In and during the month of June, 1884, and thenceforth until the commencement of this suit the defendant, John Martley, by his agents, servants or workmen, and the defendant Clark obstructed the said ditch of the plaintiff and diverted large quantities of the water
[Page 677]
thereof away from the said land of the plaintiff by placing a box in the bed of the said ditch about three-quarters of a mile up the said ditch, and by there making and maintaining a cutting in the said ditch and drawing off large quantities of the water thereof through the said cutting back into Pavilion Creek, and the defendants by force and violence prevented the plaintiffs from repairing such ditch ; that the defendants thereby diminished the quantity of water which flowed down the said ditch and deprived the plaintiffs of the flow of water therein to which they were entitled as aforesaid.
The plaintiffs claimed $8,000 and an injunction and such further and other relief as the nature of the case might require. The defendant Martley in his defence and counter-claim denied that Carson had ever in point of fact obtained any right to 200 inches of water from Pavilion Creek, or that the waters of that creek were at any time unoccupied. He denied that Carson ever got the written authority of the Stipendiary Magistrate of the district to divert any of the water of the said creek, and that Carson did post or give notices to the effect mentioned in the 45th section of the Land Ordinance of 1865.
Under this averment is sought to be raised the contention that a right, if any could be obtained by Carson, to the use upon his farm of any water from Pavilion Creek could only be obtained under the 44th section of the Land Ordinance of 1865, and that it is necessary for a person claiming such a right to be prepared during all time with evidence of the fact that the notices mentioned in the 45th section were given before the leave to take the water was given by the Assistant Commissioner ; but for the reasons already given the 45th section is merely directory ; and moreover it is not, in my opinion, necessary for Carson to rest upon the 44th section to maintain his water grant recorded as it has been ; but assuming him to be obliged to rest on the 44th section alone it is, in my judgment, impossible that it could be
[Page 678]
expected, or that it could have been intended by the statute, that a person who had obtained from the duly authorized ministerial officer of the government named in the statute permission to take to his farm a supply of water from a stream should during all time and after enjoying the benefit of such permission, it may be for 15 years as here, be required to prove that such notices were given before he could succeed in an action then brought for an interruption and encroachment upon his right. The case has been compared to that of a person justifying or claiming under a judgment of a court of interior jurisdiction, in which case it has been held to be necessary upon all such occasions for such person to plead and prove all matters necessary to show his case to have come within the jurisdiction of the inferior court upon whose judgment he relies. That was an old rule of pleading merely which owed its existence to another rule adopted by the superior courts to govern their own procedure, namely, that they would not take judicial notice of the jurisdiction of inferior courts, and that therefore, if a judgment of such a tribunal was relied upon, it was necessary for the party relying on it to plead and prove that the case came within the jurisdiction of the inferior tribunal. But between such a case and the present there is no analogy. Here no claim is made under the judgment of a court of inferior jurisdiction or anything analogous thereto. The present is the case of a grant made by the ministerial officer of the government authorized by statute to make the grant, which grant when made and recorded cannot be questioned upon an allegation that notices which he was directed to see had been given before he should make and record the grant had not been given. To such a case the old rule of pleading mentioned has no application. Martley then avers that the waters of the Pavilion Creek
[Page 679]
naturally flow through his land ; he avers that in the month of August, 1884, he duly obtained the right to divert and use 200 inches of water of the said creek ; he says that Carson and he verbally agreed in the year 1868, that in consideration of Carson paying him one hundred dollars he, Carson, should have the right to use that part of the ditch running through his, Martley's, land subject to Martley's right to use the first fifty inches of water running through it to be taken for use whenever he, Martley, required it, and that it was in consequence of a breach of this agreement by Carson that the arbitration mentioned in the statement of claim was had ; he avers that at the time of filing his statement by way of defence he has been in undisputed possession of so much of the waters of Pavilion Creek as is necessary for farming purposes and the use of the said ditch for over twenty years then last past ; he denies that he ever acted in concert with the defendant Clark as in the statement of claim is alleged, and he avers that in so far as he is concerned the alleged trespasses and grievances in the statement of claim mentioned consisted in the exercise by him of his right to the said water and to the use of the ditch, placing a box therein to take 50 inches of water therefrom and taking it for use upon his farm and not otherwise; and he denies that he directly or indirectly prevented the repairing of the ditch, and he denies the use of force and violence, and he denies that either of the plaintiffs has been deprived by him of any water to which he is entitled or that either of them has sustained any damage ; and he makes a counter-claim for damages alleged to have been sustained under the averments following : He says that he is possessed of a farm known as the Grange, and that in the months of June, July and August in the year 1884 the plaintiffs wrongfully di-
[Page 680]
verted and deprived him of the use of the said water whereby his crops became poor ; that the plaintiffs broke the box through which he, Martley, took the water, and that he incurred a great expense in endeavouring to prevent the plaintiff's abstracting the water. It is to be observed as to this defence and counter-claim :
1st. Upon the averment that at the time of the water grant the waters of Pavilion Creek from which the water was granted to him were not unoccupied has been founded the argument that the Land Ordinance as regards water grants was not intended to apply to any one but a riparian proprietor, an argument which, upon reflection, appears to be suicidal. The contention is that as by the common law of England every riparian proprietor is entitled to the flow of the waters of every stream running along or through his property in its natural course without interruption, therefore the waters of no stream upon any part of which there is a riparian proprietor can be said to be unoccupied. If this be so then as a matter of course when there are two or more riparian proprietors upon any stream, as according to the argument none of the waters of that stream can be said to be unoccupied, no riparian proprietor can claim to have or can have any exclusive use of any part of the waters of that stream taken from it in the lands of another riparian proprietor granted to him under the Land Ordinance, any more than a stranger not a riparian proprietor could ; for by the Land Ordinance it is only unoccupied water which can be granted under its provisions to any one ; and so the Land Ordinance, so far as water grants are concerned, becomes nugatory and inoperative.
The term " unoccupied," in my judgment, on the contrary plainly means what the terms " unrecorded and
[Page 681]
unappropriated " mean in the Land Ordinances of 1870 and 1875, and the term " unoccupied water " in the Gold Fields Act, and so read the Land Ordinance becomes, what it was intended to be, sensible and operative.
2ndly. It is not true that the Pavilion Creek naturally flows through or along the land of the defendant Martley at any place which is material to the consideration of the points in difference in this action, although it is true that the creek runs along, and is the southern boundary of his pre-emption location in the valley at the foot of the mountain called the Grange Farm ; but this is wholly immaterial to the present case, for none of the waters so flowing in the creek have been interfered with, nor does Martley complain that it has been, nor does he pretend that he could make use of the water in the creek, as it flows through the valley, for irrigation upon his Grange Farm, or that he has been prevented from so doing by any act of Carson's ; all that he claims is a right to draw off water from the ditch called Carson's ditch by a box therein to his Grange Farm in the valley, and the obstruction complained of by him is the alleged removal by Carson of a box in his ditch which Martley had at the place where it was directed by the award to be kept, namely, where Carson's ditch crosses the Island Creek.
3rdly. As to the allegation that in the month of August, 1884, Martley obtained a right to divert and use 200 inches of the water of the said creek to be recorded as granted to him. This allegation, although it is quite immaterial and irrelevant in the present case, because the right, if acquired, was acquired subsequently to the commencement of this suit, was not proved in the sense of showing that any right was acquired under the grant, or if acquired had been inter-
[Page 682]
fered with. This grant, although recorded, does not indicate any point in the Pavilion Creek from which the water is authorized to be drawn, and having been made under the provisions of the Land Ordinance of 1875 was of no avail to the grantee until he should construct a ditch for conveying the water to the place authorized by the grant, and it is not alleged or pretended that any such ditch was ever constructed or that Carson interfered with any right acquired under the grant.
4thly. As to the setting upan undisputed possession of so much of the water of Pavilion Creek as is necessary for farming purposes, and the use of the ditch (the Carson ditch) for upwards of twenty years next before the defence pleaded, it is utterly inconceivable how this allegation, which is so singularly rash and recklessly inaccurate, should have been pleaded and relied upon, or that being so relied upon it should have escaped notice in the court below and at the trial.
As already shown Martley had never, prior to August, 1884, recorded any grant authorizing him to divert any water from Pavilion Creek by the Carson ditch or otherwise, and since the 27th August, 1870, at any rate, he had no pretense of claim to the waters of the creek in its natural flow along the boundary of the land granted by the letters patent of February, 1864, through which the ditch passed ; nor had he any right to divert any of the waters of the creek through the Carson ditch or otherwise, or to have or take any water running through that ditch otherwise than in virtue of Carson's water grant, the agreement with him and the award ; and as to that agreement, as also already shown, it had no rationally conceivable raison d'être whatever, unless it was by way of compensation to Martley (whether entitled to it or not) to terminate all possible right of objection upon his part to Carson
[Page 683]
availing himself of his water grant through the ditch in question, and to render it perfect and indefeasible as against Martley and all persons claiming or to claim under him the land granted by the letters patent of February, 1864 ; and his counter-claim is only for damage alleged to have been done to the Grange Farm in the valley by reason of the want of water which could be conveyed to it from Carson's ditch only through the box which Martley was permitted to have there and, ever since the 27th August, 1870, had there by no title whatever that can be shown or suggested unless under Carson's water grant, the agreement with him and the award ; which title after having enjoyed the benefit of it for fifteen years Martley has now by this defence and counter-claim utterly repudiated.
Clark in his defence and counter-claim, while he admits the water grant made to him which was recorded in his favour on the 14th December, 1876, and his construction thereunder of the ditch in the plaintiffs' statement of claim in that behalf mentioned, pleads by way of counter-claim that the estate which Martley acquired by the letters patent of February, 1864, and which was vested in Beaven as hereinbefore stated, is now held by Clark under an agreement with Beaven ; this agreement appears in evidence to have been entered into on the 8th January, 1883, whereby Beaven agreed upon payment of a sum of money therein mentioned by three annual instalments on the 1st days of December, 1883-4-5, to sell the said land to Clark. He then avers that at the times thereinafter mentioned he was and still is entitled to the flow of Pavilion Creek for nearly one mile and one-half along the eastern boundary of the said land, and that the plaintiff Carson in and during the month of June, 1884, and thenceforth until the commencement of this action obstructed Pavilion Creek and diverted large quantities
[Page 684]
of the waters thereof away from the said land by placing and keeping earth and stone in the bed of the said stream, and by placing a box as in plaintiffs' statement of claim is alleged (that is to say, as there alleged, " in the ditch of the plaintiff Robert Carson a measuring box capable of carrying 200 inches of water,") and there making and maintaining a cutting in the bank of the said stream, and taking the waters of the stream through the box and carrying the same through the ditch leading therefrom to Carson's land ; and he further avers that Carson thereby diminished the quantity, and at times completely arrested the waters which flowed down the stream and deprived him, Clark, of the flow of water to which he was entitled as aforesaid ; and he avers that the plaintiff Carson has continued such obstruction as aforesaid up to the present time, and he prays a declaration of the court to be made in this cause that he is entitled to the flow of tèe waters of the said stream, and that the plaintiff Carson may be restrained by injunction from in any manner obstructing or diverting the water of the said stream and from in any manner interfering with his, Clark's, said rights.
The obstruction above complained of, it will be observed, is in that portion of the creek which is situate in the Crown lands about a mile (as appears by the evidence) above the land granted to Martley by the letters patent of February, 1864, and it consisted in making a dam of some kind in the stream to divert water into Carson's ditch for the purpose of enabling him to take his 200 inches of water granted to him. The 55th section of the Land Ordinance of 1875, under which alone Clark by his water grant of December 14, 1876, obtained any right affecting the waters of the stream, provided abundant means to enable him to divert the waters of the stream
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from the place without any interference with the means necessary to be employed by Carson to enable him to enjoy the benefit of the water granted to him, namely, by constructing a dam or breakwater below Carson's ditch to retain the waters crossing Carson's dam, which it is quite possible may for a short time in a dry season necessarily keep back all the water flowing down the stream until sufficient is obtained to supply his 200 inches. This 55th section of the Land Ordinance of 1875 provides that—
No owner of any first record to any ditch or water right shall have any right to interfere with or prevent the construction of any dams, breakwaters, or other improvements made or hereafter to be made for the purpose of saving or economising the water of any creek, lake or water-course of any kind, provided that the construction or use of such dam or breakwater does not nor will divert such water from its proper channel at the point or place where such owner takes the water used by him into his ditch or channel. Provided also that the construction and use of such dam or breakwater shall not injure the source from which such water is taken or the property of any person by backing water, flooding or otherwise ; provided also that all disputes arising upon any matter or thing in this clause contained shall be decided in a summary manner before any justices of the peace, stipendiary magistrate or commissioner who shall have free power to make such decision as shall seem to him just and equitable.
By this statute ample means are provided to enable Clark to enjoy the full benefit of all the water of the river he was entitled to divert and the most speedy and effectual redress for any infringement of such, his rights. But what Clark asserts is, and this is his sole contention, that he is entitled to the natural flow of all the water in Pavilion Creek in virtue of his agreement of January, 1883, made with Beaven for the purchase of the land granted to Martley by the letters patent of 4th February, 1864, and that Carson had no right whatever to any of the waters of the stream to be taken through his ditch as claimed by him, and that under the above assertion of title what he seeks to obtain plainly
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appears to be, not that the waters of the Pavilion Creek may be suffered to flow in their natural course down the steep mountain gorge by which it descends along the land which Clark has agreed to purchase from Beaven into the valley at the foot of the mountain where the stream flows along Martley's pre-emption called the Grange farm, but to prevent Carson from taking his 200 inches of water or any water through his ditch head situate 20 yards higher up the creek than that of Clark, in order that Clark may obtain and through his ditch take the whole of the waters of the creek to his pre-emption land, and may be able to discharge as much as he pleases, or as may be agreed upon between him and Martley, down Milk Ranch Creek into the Grange Farm. Clark's defence and counter-claim, however, establish that Clark's complaint against Carson is not of any waste by him of the waters of the creek in excess of what he is entitled to, (in which case the 55th section of the act of 1875 would afford a most complete, prompt and effectual remedy), but an absolute denial that Carson has any right to divert any water by his ditch, and that all that is complained of by Clark is Carson's taking through his ditch head in the manner stated in his statement of claim the 200 inches claimed by him under his water grant, and that this diversion of the waters of Pavilion Creek by Carson is what has caused to Clark the damage of which he complains ; so that if Carson's right to draw 200 inches of water from the creek under his water grant be established the establishment of such right, while entitling Carson to recover for any damage which may have been sustained by him by reason of Clark's interference with such right, also displaces wholly Clark's counter-claim which rests solely upon the success of his contention that Carson is not entitled to divert any of the waters of the creek
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and that he, Clark, is entitled to the whole of the water flowing in it ; and thus all necessity will be removed of endeavouring to ascertain from the evidence, which I confess seems, to my mind, very imperfect and confused, where or how precisely it is contended that the damage of which Clark complains could have been and was occasioned.
We find then the position of the parties as contended by the defendants to be this, that while Clark has two streams flowing through his pre-emption land and a water grant under the Land Ordinance of 1875 authorizing him to take and by which he takes 200 inches of water from the Pavilion Creek to the same land, and while Martley has the same two streams and another flowing down from the mountain to his Grange Farm besides the Pavilion Creek which flows along the whole length of that pre-emption location, and the plaintiff Carson has no means of irrigating his location unless by water taken under his water grant from Pavilion Creek at the point where his ditch head is 20 yards above the head of Clark's ditch, he, Carson, is not to be permitted to take any of such water, but that all the waters of the Pavilion Creek are to be applied to the exclusive use of Martley and Clark, upon the principle, no doubt, that to him alone who hath shall be given, and this is contended to be the true intent and meaning of the land ordinances of British Columbia passed by the legislature by way of invitation and inducement to persons to come into the province and settle upon the said table lands in the mountains who, without water provided by statute for irrigation purposes, have no possible means of procuring water for such purpose, and upon this construction of the said acts or ordinances a decree has been made adjudging the defendants to be entitled to the natural flow of the waters of
[Page 688]
Pavilion Creek as claimed by them and restraining the plaintiff Carson by perpetual injunction from interrupting or interfering with the flow of the waters of the said stream, and from permitting the same to continue unrestored and from permitting to continue on his land any ditch, dyke or watercourse whereby the waters of the stream may be wholly or partially diverted or interfered with so as to infringe upon the said rights of the defendants ; and that he should also pay the defendant Martley $200 as herein aforesaid and the defendant Clark $500.
This judgment and decree cannot for the reasons already given be, in my opinion, sustained. On the contrary I am of opinion that the plaintiff Carson is clearly entitled to recover in this action, and that every principle of law and equity requires that judgment should be rendered in his favour for such damage as he may have sustained which can be reasonably attributed to any acts or act of the defendants or of either of them.
The sole question which now remains is to determine the amount of such damage. Now as to Clark his conduct has been, in my opinion, most wanton, vexatious and selfish. So far as I can collect from the evidence as appearing on the appeal case it appears that early in May, 1884, Carson proceeded to clean the ditch of which he had been in possession for fifteen years, claiming under his water grant of May 1868 ; about the 7th of that month he had completed such work as may have been necessary to enable him to draw off water from Pavilion Creek to his farm through his ditch under his grant; at first the water ran freely ; in a day and a half it stopped ; upon the 9th he went up to his ditch head and found it obstructed, and the water in the creek flowing down to Clark's ditch head ; he removed the obstruction and let the water again into his ditch ; again the obstruction was repeated, and
[Page 689]
again he repaired it ; afterwards he found a box let into his ditch by which all water coming into the ditch was let back again into the creek, thus again supplying Clark's ditch ; subsequently he found another box put into his ditch at a point further from the ditch head by which the water was taken direct into Clark's ditch ; these boxes Carson removed, but all his efforts to obtain water were fruitless for his ditch was again opened by Clark in different places so that the water was taken into Clark's ditch ; at last as a final effort Carson put a new flume into his ditch head on the 12th June, 1884 ; upon this occasion Martley and Clark went up to the ditch head where Carson was at work, and Clark claimed the ditch and all the water in into be his, and insisted that Carson had no right whatever to any of the water, and he again drew off the water into his ditch by openings made by him in different places in the Carson ditch ; and in fine the result is that during the whole period in which the water was a necessity to Carson he was deprived of all benefit from his ditch, and of the water which in virtue of his grant of May, 1868, he claimed title to, and notwithstanding Clark, who beyond all doubt did or caused to bå done the acts above mentioned, makes a counter-claim for damages said to have been caused by Carson's fruitless endeavours to repair, and prevent the full force and effect of, the injury done to him by Clark's acts. Carson is in my opinion entitled to recover from Clark substantial damages, and the only danger, I think, is lest a keen sense of Clark's wanton and selfish conduct should induce a judgment which might be excessive. It is difficult to make a just estimate of what loss Carson may have sustained from the want of water in the season of 1884, which is said to have been very dry. Its excessive dryness made the water a greater necessity,
[Page 690]
but at the same time it increases the difficulty of determining what might have been the result upon Carson's farm if the water he was entitled to draw from Pavilion Creek had not been cut off. I think that a judgment in Carson's ?avour for $600 against Clark, and dismissing his counter-claim with costs will not be excessive, and will at the same time afford reasonable compensation to Carson for what he may have suffered from Clark's conduct. Then as to Martley, he says that he never did any of the acts complained of as having been done by Clark ; that he did nothing whatever in concert with Clark, and that in fact he did nothing at all but put into the ditch where it crossed Island Creek a box to draw off from the ditch 50 inches of water in the place and stead of a box which Carson had removed. If this be so he should not of course be held responsible for Clark's acts.
Why he should act in concert with Clark unless they had come to an agreement that they should divide between them the waters of Pavilion Creek it is difficult to conceive. If Clark should succeed in his contention that the ditch called Carson's ditch and all the water therein belonged to him, Clark, as his absolute property, and that Carson had no right to have had any water conveyed thereby to his farm, Martley's claim to 50 inches drawn from the ditch would be utterly gone also unless he should make an agreement for it with Clark. Martley's interest, in truth, depended on his maintaining as against Clark the Carson water grant and the agreement with him, in the sense hereinbefore pointed out to have been its reasonable construction, and the award, for it is plain that his assertion of title to the ditch and the water therein in himself could never be supported, as the only foundation of any title, if any he ever had, in the
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ditch was claimed in virtue of his estate in the land granted to him by the letters patent of February, 1864, and since August, 1870, that title was vested in Beaven, and in 1884 was claimed by Clark to be in him under his agreement of February, 1883, with Beaven. Martley, therefore, if not claiming the 50 inches of water from Carson's ditch under Carson and his water grant, could have no means whatever of obtaining any water to be diverted from Pavilion Creek into his Grange Farm unless through Clark's ditch by arrangement with him or by means of a ditch to be constructed by himself under a water grant to be obtained by him under the Land Ordinance of 1875. I find a difficulty upon the evidence, in the absence of any agreement between Martley and Clark for a partition between themselves of the waters of Pavilion Creek above the gorge by which it descends into the valley, to find Martley to have been a party with Clark in the committal by him of the injurious acts which Clark undoubtedly committed, although he was present on one occasion with Clark when the latter asserted title in himself in the Carson ditch and the waters therein, and that Carson had no interest whatever therein and committed acts which could only be justified by his succeeding in maintaining such his assertion of title to be well founded. What appears most singular in the case is, that while Clark asserts title in himself in the ditch and the water therein in virtue of the title of Beaven, the owner of the land granted to Martley by the letters patent of February, 1864, and that Carson has no right to any of such water, Martley also asserts the title to be in himself, and that Carson never had any title save under him and by an agreement which, being verbal, he contends is valueless, and it is in virtue of this absolute right claimed to be in himself that Martley justifies
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putting into the ditch at the Island creek the box which he admits he did put in in June, 1884.
A letter of the 13th May, 1884, from Carson to Martley, and a letter of the 19th May from Martley to Carson, and a notice of the 30th May from Martley to Carson were produced at the trial but are not in the appeal case before us. If we had them they would probably throw some light upon what Martley did. He says that up to the receipt by him of Carson's letter of the 13th May it was a matter of indifference to him whether Clark had a sufficient supply of water or not, but that from the receipt of that letter he let Clark have all the advantage he could—that is to say by his box in the Carson ditch. That letter I understand contained an objection made by Carson to Martley letting Clark, in addition to the streams on his, Clark's, own farm, have the water taken from his, Carson's, ditch by Martley's box, insisting that under the award Martley had only a right to draw it for his own use.
I collect also from the short notes of evidence before us that Martley's letter of the 19th May conveyed notice to Carson that he would terminate after the 1st June what he considered to be Carson's title to have any water from the Carson ditch, namely, his, Martley's, verbal permission to take the water from his ditch. I gather also from the notes of evidence that some time in the month of June Martley's supply of water from the Carson ditch at the crossing of Island creek was cut off, and Martley admits that he opened the Carson ditch and put in another box capable of taking 50 inches of water in lieu of the one so removed ; and although this act in itself would be open to the construction that it was done in assertion of a right acquired under Carson in virtue of his water grant, the agreement and award, Martley admits on the record that it was not done upon any such ground but was
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done under a claim of absolute right and title in himself wholly independently of Carson whose right and title he utterly denies and repudiates.
Now if it clearly appeared that Carson's reason for removing the box which had been in his ditch at Island Creek was Martley's sharing with Clark the water so drawn off, and if Martley had replaced that box by putting in the one which he admits having put in, in assertion of a right to do so in virtue of Carson's water grant, his agreement and award, the case would have been very different and he might have some show of justice in support of his claim ; but instead of so doing (in accordance, as it appears to me, with his true position and his interests) he asserts title in himself to all the water in the ditch to the exclusion of Carson, and denies and repudiates the title under which Carson had enjoyed the ditch for 15 years, and under which alone Martley himself could substantiate any claim to the 50 inches of water. This assertion of title in himself and repudiation of Carson's appears to have been made before Carson removed the box which Martley replaced, and was naturally calculated to irritate Carson and to invite his interference in assertion of his title ; and now Martley puts upon the record that absolute assertion of the title in himself.
This his contention of title being incapable of being sustained judgment must be against him upon that point carrying all costs ; and as the evidence does not, I think, sufficiently bring home to Martley complicity with Clark in the committal of the wrongful acts which he committed the ends of justice will, I think, be obtained by rendering judgment in favour of Carson against Martley for $10 and dismissing his counter-claim with costs.
As to Eholt he failed to show any water grant ; he might therefore have been non—suited and as the whole
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matter in dispute was in reality as to Carson's title to the ditch and his 200 inches of water under his water grant, and the consequences resulting from its being or not being established, I think it will be sufficient simply to dismiss Eholt's claim with such costs to be paid by him as either of the defendants may have been, if either of them was, put to solely attributable to Eholt being a plaintiff, in excess of the costs occasioned by and having relation to the contention between Carson and the defendants. Our judgment therefore, in my opinion, must be to vary the judgment as above, and to dismiss the appeals of the defendants with costs to be paid to the plaintiff Carson.
Appeal dismissed with costs.
Solicitors for appellant Martley : Davie & Pooley.
Solicitor for appellant Clark : Charles Wilson.
Solicitors for respondents : Drake, Jackson & Helmcken.
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