S.C.

1901.

In re CARTER, HARDING

V.

CARTER.

66

wick(1) are examples. I think the true conclusion is that it is
in each case a question of the construction of the particular
will, and that if you can ascertain from the will that the
testator intended the words relating to the receipt to refer to
some definite time, and not simply to the time at which the
actual cash might chance to be handed over, the intention of
the testator will be given effect to. That can be done here.
The two children of the testatrix's daughter Sarah Anne are
each bequeathed a legacy of £50, but the will goes on to say
they are not to receive their money until they reach the age
of twenty-five." The other grandchildren are bequeathed £50
each, payable at the age of twenty-five. Then there is the
final gift over of these legacies, and of the legacy to the plain-
tiff.
The grandchildren are entitled to receive their money
at a particular time, and if they die before they receive it it
is to go over.
There can be no doubt as to these that the
words "die before they receive the money " mean "die before
“the time at which by the terms of the will it is made receiv-
"able"--that is, before they attain twenty-five. A similar
construction must, of course, be applied with reference to the
money bequeathed to the plaintiff. I think, therefore, that,
as there is a gift over, .in certain events the executors cannot
be called upon to pay in one sum the £300 bequeathed to
the plaintiff. In arriving at this conclusion I am satisfied
that I am giving effect to the wishes of the testatrix as ex-
pressed in the will. The will is said to be a home-made will,
but the testatrix evidently knew exactly what she wanted, and
has expressed her wishes with rare lucidity. The duty of the
Court in interpreting a will is to try and ascertain from it the
real wishes of the testator, and to give effect to them unless
the way is barred either by clumsiness of expression on the
part of the testator or by some unbending rule of law. Neither
of these is present here.

Solicitor for the plaintiff: E. H. Bruges (Christchurch).
Solicitor for the defendant: J. R. Thornton (Dunedin).

(1) 13 Ch.D. 517.

MACKENZIE . THE WAIMUMU QUEEN GOLD-
DREDGING COMPANY (LIMITED).

"The

S.C. HEARING

DUNEDIN.

1901.

Riparian Owners - Fouling Stream by several Dredges - Easement ·
Land Transfer Act, 1885," Sections 76 and 189-Agreement giving
Limited Right-Dredging by Riparian Owners-Acquiescence-Holding September 16,
Shares in Dredging Company-Tenants in Common.
17, 25.

In order to create an easement over land under "The Land Transfer WILLIAMS, J. Act, 1885," a transfer of the easement must be executed and registered. An agreement by a riparian proprietor to allow one dredge to work does not deprive him of his right to complain of other dredges working, nor does dredging on his own land deprive him of his right to have the water come down in its natural state.

Holding shares in one dredging company is not evidence of acquiescence in other dredges working. Acquiescence by one riparian tenant in common does not bind his co-tenant.

ACTION by J. R. Mackenzie and E. D. Mackenzie, as
tenants in common, for damages and an injunction.
facts are sufficiently stated in the judgment.

Hosking, for the plaintiffs:

The

One action for damages and injunction will not lie against two tort feasors, but each may be liable to damages and an injunction: Sadler v. The Great Western Railway Company(1); Lambton v. Mellish(2); Blair v. Deakin (3); Goodson v. Richardson(4). The motive is unimportant: The Mayor, &c., of Bradford v. Pickles(5). The plaintiffs only ask for nominal damages, but they are entitled to that, and an injunction, even if the enjoyment of the land is not interfered with: Goodson v. Richardson(4). In that case the right was of no intrinsic value. A riparian proprietor is entitled to an injunction as of right: Pennington v. Brinsop Hall Coal Company (6). It is no defence that the plaintiffs bought after the nuisance had commenced: Bliss v. Hall(7); Tipping v. St. Helen's Smelting Company(8). An injunction is the proper remedy. The evidence shows that the land is adapted for grazing, and that since the pollution the stream brings down

S.C. silt and deposits it in the bed and on the banks: Pennington 1901. v. Brinsop Hall Coal Company(1); Clowes v. Staffordshire MACKENZIE Potteries, &c., Company (2). Pollution of the stream is an

v.

WAIMUMU

QUEEN
GOLD-

DREDGING
COMPANY.

infringement of the legal right, even if other riparian owners have sanctioned it: McIndoe v. The Jutland Flat (Waipori) Gold-mining Company (3). Where the legal right is established an injunction must go: Fullwood v. Fullwood (4). Acquiescence to bar a right must be a standing-by while the opposite party has incurred expenditure to its prejudice; but as a matter of fact the Waimumu Queen had started before the plaintiffs bought the land: Wilmott v. Barber(5); Proctor v. Bennis (6); De Bussche v. Alt(7); McIndoe v. The Jutland Flat (Waipori) Gold-mining Company(3); Borton v. Howe(8). The plaintiffs have a Land Transfer title, and an easement cannot be created against them without a transfer duly registered. Acts of acquiescence by prior owners (if any) are personal, and do not bind transferees under the Land Transfer Act. There is no evidence as to E. D. Mackenzie. He has a separate right, and would not be bound by the acquiescence of his co-tenant.

W. C. MacGregor, for the defendants:

The right to an injunction is discretionary: Kerr on Injunctions (9); Doherty v. Allman(10); Smith v. Smith(11). As nominal damage only is claimed, the plaintiffs are not entitled to an injunction. They knew there were other dredges at work when they bought, and they bought the land for dredging purposes. By that time the use of the land for any other purpose than dredging had become obsolete. Mining was the ordinary use. The remedy, therefore, is damages, if damages are proved: McIndoe v. The Jutland Flat (Waipori) Goldmining Company(3); Sayers v. Collyer(12); The Jutland Flat Gold-mining Company v. McIndoe(13); Shelfer v. City of London Electric Lighting Company(14); Ormerod v. The Todmorden Joint-stock Mill Company(15). As to acquiescence, the plaintiffs have joined in the pollution that they claim to be injurious to them, and are not entitled to an injunction:

S.C.

1901.

The Duke of Bedford v. The Trustees of the British Museum(1);
Rundell v. Murray (2); Saunders v. Smith(3); Williams v.
The Earl of Jersey(4); Lockwood v. London and North-western MACKENZIE
Railway Company(5); Holland v. Worley(6).

Hosking, in reply:

The acts of which we complain are calculated to ripen into an adverse right: Young v. The Bankier Distillery Company (7). As to acquiescence: Booth v. Eagle(8). Eagle (8). As to an injunction where there is no damage: Siddons v. Short(9).

WILLIAMS, J. :—

The plaintiffs are tenants in common of 186 acres of land bounded by a stream called the Waimumu. The plaintiffs have the rights of riparian proprietors, and are owners of the bed of the stream to the middle of it. Higher up upon the same stream several dredges are working, and amongst them the dredge of the defendant company. The effect of the working of these dredges has been proved to be that the stream has been fouled, that the bed of the stream is raised by silt coming down, and that when the stream is flooded and overflows the plaintiffs' land silt injurious to the land is brought upon the land. The rights of the plaintiffs are therefore being infringed, and it is competent for the plaintiffs to proceed against any one of the parties who are infringing them. It would not, indeed, be competent for the plaintiffs in the same action to make more than one of the parties a defendant. The plaintiffs are therefore entitled to relief against the defendant unless it can be shown that they have parted with these rights, or by acquiescence or otherwise have lost their right to insist on them as against the defendant. The plaintiffs became registered proprietors of the land in August, 1900. They had apparently arranged to buy it some two months before. It was bought by them from Messrs. Hawson, Gilkinson, and Instone, who had become registered proprietors of it in March, 1899, by a transfer from one John Thomson. One ground of suggested acquiescence is that in December, 1897, John Thomson, the plaintiffs' predecessor in title, was a party to an agreement with the Waimumu Gold-dredging Company not

(1) 2 My. & K. 552.

(2) Jac. 311.

(3) 3 Myl. & Cr. 711,

(4) 10 L.J. Ch. 149. (5) 19 L.T. 68.

(6) 54 L.J. Ch. 208.

(7) [1893] A.C. 691.

(8) N.Z. L.R. 2 C. A. 294.

(9) 2 C.P.D. 572.

v.

WAIMUMU

QUEEN

GOLDDREDGING COMPANY.

S.C. 1901.

V.

WAIMUMU

QUEEN GOLDDREDGING COMPANY.

to object in any way to that company or its successors proceeding with its mining operations and thereby fouling the MACKENZIE waters of the creek. The defendant alleges that the plaintiffs had notice of and were bound by this agreement. I do not think it is shown that they had notice of this agreement. The only evidence we have is a statement by Denniston that he told J. R. Mackenzie that all had signed an agreement to allow dredges to start except Allison and another man. There is no evidence of any such agreement having been signed. The only agreement shown to have been in existence relates to the Waimumu dredge exclusively. The plaintiffs, however, are registered proprietors under the Land Transfer Act. The right given by this agreement would, if it existed as against the plaintiffs, amount to an easement. The right to use or to affect the water of a natural stream in any manner not justified by natural right is an easement. So also is the right to discharge water or other matter on to a neighbour's land: Gale on Easements(1). In order to create an easement over land under the Land Transfer Act, section 76 requires that a memorandum of transfer is to be executed and registered. In the absence of such registration, even if the plaintiffs had notice of the existence of the agreement, they would be protected by section 189: But Thomson's agreement related only to the Waimumu Dredging Company. Even if the plaintiffs are bound by Thomson's agreement with the Waimumu, that does not deprive them of their right to complain if other dredges send down silt to their land. If that were so, it would mean that if a landowner granted an easement of the kind to one dredge it would be equivalent to a grant of the same easement to an unlimited number of dredges. Because a landowner raises no objection to the working of one dredge, which turns over some 60 tons of stuff an hour, it does not follow that he cannot object to a number of others, each of which turns over about the same quantity. A considerable amount of evidence was adduced to show that the plaintiffs themselves, or, rather, the plaintiff J. R. Mackenzie, had it in contemplation in purchasing the land to use it for dredging purposes. Whether they had or had not is entirely immaterial. The fact remains that it has not been used for dredging, but for depasturing stock; and if it had been used for dredging it would not have given the parties above any right to send down foul water. If it had been used for dredging the plaintiffs might have had to make arrangements with the landowners

(1) 7th ed. 20.