Thorpes Ltd v Grant Pastoral Co Pty Ltd [1955] HCA 10

High Court of Australia Dixon C.J. McTiernan, Webb, Fullagar and Kitto JJ. Thorpes Ltd v Grant Pastoral Co Pty Ltd [1955] HCA 10

ORDER Appeal dismissed with costs including the costs reserved.

Cur. adv. vult.

The following written judgments were delivered:—

15th Mar., 1955 Dixon C.J.

I have had the advantage of reading the judgment of Fullagar J. and agree in it. All I desire to add is that I think that the question whether the decision in Hanson v. Grassy Gully Gold Mining Co. [5] can be supported should be reserved for further consideration, that is to say until a case comes before us in which its correctness is directly in issue and it is fully argued.

1. (1900) 21 N.S.W.L.R. 271. McTiernan J.

I agree that the appeal should be dismissed. There was ample evidence upon which the jury could find for the respondent upon the causes of action declared upon. The appeal really turns upon the question whether those causes of action were barred by the Water Act 1912-1946. Upon reading the two counts in the declaration, it is clear that neither of them falls within the scope of the Act. Kinsella J. said:

The complaint in the present case is not of interference with the flow of water in the river, but of inundation of lands by overflow of water which having left the channels has ceased to be part of the flow of the stream contemplated by s. 4A (1).

Hanson's Case [1] , in my opinion, is not authority for the proposition on which the appellant's case depends, that the Act in abrogating the riparian rights of riparian owners has also divested those owners of their common law right to enjoy their lands outside the natural channels of a stream without unlawful interference with their possession, if that interference be in the form of inundation by water diverted from a river. At common law riparian rights are not and never were the only rights of riparian owners in relation to riparian lands, but were of a special class super-added to the ordinary rights incident to the possession of the land. The right to freedom from wrongful diversion of water out of the channel and on to his land is distinct from and independent of the right of a riparian owner to the uninterrupted flow of water in the channel.