The Argus at KellyGang 2/4/1861 (2)
It may be stated here that the priority of Yackandandah rights is rated as follows:- 1st, washing rights in the creek and flats; 2nd, motive right in the creek; 3rd, washing rights for hill claims. In some other creeks also a few exceptional privileges for motive power have been obtained by usage.
It appears that the only authority possessed by the commissioners to authorize the use of water is contained in the regulations issued in 1853 and 1854 for the management of the gold-fields. By these regulations commissioners were authorized to sanction sluice washing at running streams, but there is not a word relative to the diversion of water. For about nine months after the discovery of gold on the Ovens, cradling was the only means adopted for its extraction, and no distinction was then made between bank and creek, a claimholder on one having as good right to the water as the claimholder on the other, until the creeks and their immediate banks were gradually worked out.
Many miners left the district despairing of payable ground being discovered within a reasonable distance from water. The commissioners seem then to have felt it incumbent upon them, in the interests of the miners, to give the most extended signification to the regulations, and numerous permits to cut races and divert water were accordingly granted. The population again increased rapidly, and large numbers of miners have been, and still are, enabled to earn a comfortable livelihood on ground which would otherwise be utterly unworkable. On the Buckland this has been pre-eminently the case: when the original bed of the river was worked out there were no means of working the adjacent banks without bringing the water from points several miles up the river. Among the races cut for this purpose, one of the most remarkable is the Judge's race, which runs along steep sidelings for 14 or 15 miles, crossing the river on substantial flumes, erected at considerable expense to the projectors, the cost of the works being over £3,000; and it is very clear that the persons undertaking such a work must have had faith in the validity of their rights.
This belief was destined, however, to be severely tried, for his Honour Judge Cope, in the case of Hooper v Mayzen, tried in August, 1858, intimated that in his opinion the use of water, and the diversion also, were illegal, if diverted from a creek or river upon which land had been alienated, or where land had been taken up under miners' right on or in such creek, or rivers. So much has public confidence been shaken by this in the value of permits, that many right-holders who hold by transfer find it impossible to sell out their rights, except at a serious loss; and there is no doubt that much capital which would have been employed in increasing the water resources of the district has, from the uncertain tenure of rights, been withheld or diverted into other channels of speculation.
To show the important nature of the water right interest, it may be stated that the value the rights in the Beechworth district has been variously stated from £150,000 to £200,000 - the works of the Yackandandah Pioneer Company alone, still incomplete, having already cost above £7,000.
The continuous and expensive litigation which has occurred in the Ovens district on the subject of the water supply has, in the opinion of the commissioners, been caused -
1. By the absence of any statute law defining the conditions under which water might be diverted from rivers, creeks, or springs, and the uses to which such water, when diverted, might be applied. This has led to most of the litigation between miners working in the beds of creeks and rivers, and those diverting water
2. The uncertain tenure under which the right to divert water (supposing such diversion be legal) has been and is held-some of the holders of such rights claiming from the date of occupation by verbal permission, others holding under written permits, and others under a system of registration.
3. The confusion which exists with respect to some of the oldest rights, the commissioners of the gold fields having in some instances stated in the written permits issued to the holders that the water was to be returned to the creek or river at a specified point; in others, that the water was to be used in a certain locality, &c; and subsequently, having given verbal permission to extend the races, and convey water to other points and localities not specified-which custom, and the absence of the restriction of rights to specific localities in subsequent permits, have led to the belief among the diverters of water that all such restrictions have actually ceased to exist.
4. The fact that many persons have tunnelled or cut deep drains into hills and the banks of creeks, and obtained a supply of water to which they claim an exclusive right, on the ground that it has been obtained from springs, while other persons assert that the water so obtained is a portion of the natural supply of such creeks.
The law on the subject of water supply, as laid down in the Court of Mines, and the decision lately given in the British House of Lords, in the case of Chasemore v Richards, Law Times Report, vol. , p. , has not tended to lessen the amount of litigation, but rather to increase the difficulties connected with this subject, for the spirit, if not the letter, of the Gold-fields Act legalizes the diversion of water for mining purposes; but the words of the act in connexion with this subject are ambiguous, as they only admit of such water being diverted and used as Her Majesty may lawfully divert and use; while it has been laid down as good law, that Her Majesty; may not lawfully divert and use water for mining purposes, if the water be required in the natural channel for any purpose by the owner of land, or claimholders on or in the stream.
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