Hill v O'Brien [1938] HCA 48

96 HIGH COURT iat

(HIGH COURT OF AUSTRALIA.}

(PTAs 5 ss - : 7 . APPELLANT DerenpDant, AND O'BRIEN ie Sey BEA ; . . . RESPONDENT PLAINTIFF,

ON APPEAL FROM THE SUPREME COURT OF i SOUTH AUSTRALIA.

H.C, or A. Water—Riparian rights—Action Jor relief against infringement—Parties—I)

1938. in land necessary to support action—Crown lands—Perpetual lease—S) farming agreement by lessee from Crown—Provision for joint occupation possession —Construction of agreement—Statutory prohibition of 'parting with possession—Action by share-farmer—Crown Lands Act 1929 (S.A) (No. 1923) secs. 226,

Wien Dison + 'A lessee from the Crown under a perpetual Crown lease (pursuant to the and McPienwin Crown Lands Acts (8.A.)) entered into a share-farming agreement with his

0. The agreement recited that the father had agreed to let the land to 0. for grazing and to work and cultivate the land and to milk the father's e upon shares for a term of five years. The terms and conditions of working were set out in the agreement, which also provided that nothing in the agree- ment should be construed as in any way constituting a partnership or an agreement therefor but that during the said term the father and O. should be jointly entitled to the occupation and possession of the said land. 0. lived" and worked on the land in accordance with the agreement. The land adjoined_ a river which, at that point, was a natural stream or watercourse. 0. brought an action against H., complaining that H. had erected in the channel of the river a bank which had diverted the water and deprived O. of valuable floodings of the land, and claiming damages and an injunction.

Held that O. had no such interest in the land as would enable him to maintain the action :-—

61 C.L.R.] OF AUSTRALIA.

By Latham C.J., on the grounds that, (1) if the share-farming agreement H. C. or A.