The Argus at KellyGang 2/4/1861
BEECHWORTH WATER RIGHTS
REPORT OF THE COMMISSION APPOINTED TO INQUIRE INTO THE SUBJECT OF WATER RIGHTS IN THE BEECHWORTH DISTRICT
Report of the Commission appointed to, inquire into the origin of the system of Water Rights now prevailing in the Beechworth Mining District; the best means of preventing litigation with regard to Water Bights; and the mode in which the right to take water for mining purposes from springs and creeks shall be regulated in future.
The commission appointed by His Excellency the Governor to inquire into the origin of the system of water rights now prevailing in the Beechworth mining district, the best means of preventing litigation with regard to water rights, and the mode in which the right to take water for mining purposes from springs and creeks shall be regulated in future, have the honour to submit the following report:
ORIGIN OF THE SYSTEM OF WATER RIGHTS PREVAILING IN THE BEECHWORTH MINING DISTRICT
The first permit granted for the diversion of water in the Beechworth district was a verbal one from Mr Commissioner Morphy to Reilly and party, authorizing them to cut a race and divert water for mining purposes. The water was obtained from the Nine-mile Creek ( Snake Valley ), and for a short time after the completion of the race was sold by Reilly to the cradlers at Nuggety Gully and other localities, which could not be worked without an extraneous supply, at the rate of from 5s to 7s 6d per cradle for the day, according to the distance from the head of the race. This permit was granted early in 1853, but it was not until the following year that a written sanction was made out by the commissioner, which was dated, not from the period of the original grant, but from the day of its issue in 1854. Mr Morphy stipulated, in giving permission to Reilly's party, that the water should be turned into the creek if required there, and that it should be used for mining purposes only; but no mention is made as to the number of hours per diem the water should run or the quantity to be diverted.
The history of this, the oldest right in the Ovens district, will serve as an example of the majority of those granted up to the establishment of the local courts in 1853, when a regular system of issue and registration was first laid down. Reilly's race has changed owners by successive transfers several times, and is supposed to be worth at present, with a secure title, at least £2,000.
Great diversity of practice existed amongst the commissioners with regard to the conditions under which they sanctioned the diversion of water. Some granted permission to divert free from any restriction, others made the permit depend upon the avoidance of waste from neglect, upon respect for pubic interests, and prior rights.
Some 24 hours' rights were granted, in consideration of the expense the applicants had been put to in constructing the works necessary to render the water available, and the loss they were supposed to be liable to from soakage, leakage, and evaporation. Night and day rights, each for 12 hours, with the exceptions above-mentioned, were made separate grants on the Snake Valley , Three-mile Creek, and Spring Creek divisions..
Permits were also in many instances given to parties to sluice in the beds of creeks, some of which have been subsequently used upon the banks, and are, at the present moment, held as bank rights. An example of this exists at Reid's Creek, in the case of a permit granted by Mr Commissioner Puckle to James and party to cut a race from the head of Reid's Creek to a point a mile below. The water conveyed in it was to be used for sluicing in the bed of the creek. This right is now claimed to be the oldest bank right from Reid's Creek, and is, at the present moment, used as such.
"The only evidence now discoverable as to the system of dealing with water rights by the commissioners consists in a short code of regulations drawn up by Captain Murray, for the Nine-mile Division. Whether these rules were adopted generally cannot now be ascertained, but it appears probable that they were to some extent recognized by the other commissioners in the district. In Captain Murray's regulations, water rights are declared to be transferable under certain conditions, the quantity of water to be diverted if fixed, control over tail water is refused by implication in rule 7, and the circumstances entailing the forfeiture of the right are clearly set forth.
In 1854, some of the commissioners, believing that a greater number of miners might thereby share in the advantages of a diverted water supply, endeavoured to establish what has been termed the 'shifting right system, that is, the restriction of the use of the water diverted to a particular claim or locality, which, being worker out, the applicant next on the roster held the right under similar conditions.
The Yackandandah Local Court , apparently considering that all water rights in their district had been granted on this principle, adopted it as the most suitable, and it was applied by them to all permissions granted antecedently, as well as to those issued under their rules. Judge Noel, however, decided that the local court did no possess power to deal with rights issued prior to its formation, and quashed a conviction in the case of Lafontaine v Smart (General Sessions Beechworth, October 22, 1857), based upon regulation No 9 of the Yackandandah Local Court.
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