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 elure. 
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 I2X 
 
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IN" THE 
 
 SUPREME COURT OF CANADA 
 
 ON APPEAL 
 
 —FROM THE- 
 
 SUPREME COURT OF BRITISH COLUMBIA, 
 
 BETWEEN 
 
 .10H.\- MARTLEY and TRUMA,^r CELAH ('LARK, 
 
 (Defendmita) ApjtolUtn f,s, 
 
 — AND — 
 ROBERT CARSO.A'- and JOSEPH EHOLT, 
 
 (Plainfiffit) Rcspoudcufs. 
 
 O J^ S E 
 
 MESSRS. DAVIE ^- POOLE Y, - - Solicitors for Appellant Martley 
 
 CHARLES WILSO.K Solicitor for Appellant Clark 
 
 MESSRS. McIMTYRE ^- LEWIS, Ottawa Agts for Appellants' Solicitors 
 
 .MESSRS. DRAKE, JACKSOJSf ^- HELMCKEJV, 
 
 Solicitors for Respondents 
 
 MESSRS. STEWART ^- CHRYSLER, Ottawa Agents 
 
 VICTORIA, B. 0. : 
 
 DAILY KVBNINO POST JOB PRINT. 
 
 1886. 
 
INDEX. 
 
 Short Stntement of Cause. 
 FieiulinKH 
 
 Vmw 
 
 4 
 
 4 to 
 
 Countor-Cliiim of Jolm Mnrtley, Rolxirt Cnrsou iind Joseph Eliolt •' '<> 7 
 
 Defence nnd counter-clnim of Tnimmi Celnh Chirk 7 t<> 10 
 
 Statements of Iteply 10 to 12 
 
 Documentary Evidence Water Records 12 to 14 
 
 Land liecords and iNfai) 14 to 15 
 
 Conveyances Mortgage of John Mirtley to Selim and Lumley Franklin 15 to 17 
 
 Crown Grant to John Martley 17 to 19 
 
 Deed under power of sale in mortgrge from H. and L. Franklin to llolwrt Beaven 19 to 21 
 
 Confirmation Deed John Hartley lo Kobert Beaven 21 to 22 
 
 Agreement lx>,tween Robert Beaven .md Truman Celah (^Inrk 22 to 24 
 
 Jndifo's Notes at Trial 24 to 32 
 
 Jutlgment or Sir M. B. Begbie, Chief Justice, April 22nd, 1H85 82 to 44 
 
 Decree Prononnced upon Motion for Judgment made the 22nd April, 1885 41 to 45 
 
 Notice of Appeal and Motion *° 
 
 Judgment of the Full Court, delivered 20th August, 1885 46 to 50 
 
 Notice of Appeal of John Martley ''" 
 
 Order Allowing Security, etc ^ 
 
 Notice of Appeal of Truman Celah Clark 51 
 
 Order Allowing Security, etc "1 
 
 Minutes of Judgment as settled by Registrar 52 to . 53 
 
 Notice of Motion to vary Minutes 58 
 
 Minutes of Judgment as Settled by the Full Court B4 
 
 Order of the Full Court on Appeal 65 t<> 5C 
 
 Notice of Appeal of John Martley 5f> 
 
 Notice of Apiwal of Truman Celah Clark '•'^ 
 
 Order Settling Case on Appeid 68 to 59 
 
 Memorandum as to Order of Supreme Court Enlarging Time for Filing Case 5!) 
 
 199459 
 
SUPREME COURT OF CANADA 
 
 iJetvveeii JOHN MAtlTLKY .u.dTIlUMAN CELAII CI.AUK, Def.nd.uiK 
 
 AM) Al'l'KI.I.ANTS, 
 
 ROMPniT (JAUSON aii(! .lOSElMl EUOLT, I'laiiitiffs, 
 
 Uksi-onhknth. 
 
 ON APPEAL FROM THE SUPREMC COURTJF BRITISH COLUMBIA. 
 
 Thirt irt tin iippcal by Jolin Miirtley ,ni(l Trni'mii <"' l.ili (Mark to tlic Sii|)iTnic Court 
 of Civmuk from a Judi^meiit of tli(> Suprome Co\ni. of Hritiwli Coluiiiltia ruvorKiiifr a decis- 
 ion of tie Houoralde Sir Matthew Hnilllc I' gbie, Knight, Chief Justice, at a trial without 
 a Jury, in favor of the Appeihvnts, rendered .m tlie 22nd (hiy of April, 1HH5. 
 
 II) 
 
 PLEADINGS 
 
 STATEMENT OF CLAIM. 
 
 2(» 
 
 IN THE SUPREME COURT OF BRITISH COLUMBIA. 
 
 IJetween Rohkut Causon and Joski'h Enoi.r, Plaintiffs, 
 
 AND 
 
 John Makti.ky and Truman Cki.aii Clakk, Defendants. 
 
 (Writ issued July 7tli, 1884:.) 30 
 
 1. The Plaintiffs are farmers and reside at Pavili(m Mountain, Hri^ish Columbia. 
 The Defendants reside at the Grange Pavilion Mountain. 
 
 2. The Plaintiff Robert Carson on the 10th May, 1808, recorded the right to 200 
 inches of water f.-om the creek known as Pavilion Creek for farming purposes. On the 
 10th May, 1870, William t^ .mpson recorded the right to 200 inches of water from the 
 s'M creek, who auerwards transferred the right to the Plaintiff Joseph Eholt. 
 
 3 The Plaintiff Robert C^arson in r about the year 1807, constructed a ditch lead- 
 i-T ; oni the said creek passing througli the land of the Defendant Martley, and the land 
 of ""the Plaintiff Eholt, to the land of the Plaintiff Carson. Said ditch is eleven mUes in 
 Ici- h. The Plaintiff Eholt is entitled to use the water in Carson's ditch after allowing ,,, 
 206 inches for the Plaintiff Carson. 
 
 4. Tlie Defendant T. C. Clark on the 14th December, 1870, recorded the right to 
 200 inches of water from Pavilion Creek 20 yards below Plaintiff Carson's ditch for irri- 
 gat''"g pi'-poses and subsequently made a ditch in pursuance of said record. 
 
 5. On the 12th of June, 1884, the Plaintiff Robert Carson put in the ditch of the 
 
HI 
 
I'laintiflF Ri)l»ert Carson a ineasiiring box capable of carrying 200 inches of water. 
 
 6. Owing to a dispnte having arisen between the Defendant Martley and the 
 I'laintiff Carson, respecting the right t<j water in said ditch through Defendant Hartley's 
 farm on Pavilion Mountain, and damages that either may have sustained by loss of water 
 for irrigation in the year 1801), the matters in difference between the parties was referred 
 to three arbitrators who by their award in writing dated June 2nd, 1S70, found that 
 neither party was entitled U) damages: that while Defendant Martley had a sufficient 
 Kupply of water in the two creeks passing into his farm he should not be entitled to any 
 water from Plaintiff Carson's ditch, but in ca,se of scarcity Defendant Martley should be 
 entitled to Imlf the water in Carson's ditch, said half not to exceed in any case Hfty inches, l(» 
 and Defendant Martley would be entitled to get said half for use on his farm round his 
 house and to take it out of the ditch where it joins the Island Creek: Defendant Martley 
 may use said 50 inches of water on Pavilion Mountain if he chooses. 
 
 7. The said Defendant John Martley never recorded any water from the said Pavil- 
 ion C'reek and the Plaintiffs claim that no rights accrued to the Defendant John Martley 
 under the said award in consequence of his neglecting to comply with the statute in that 
 case made and provided. 
 
 8. In and during the month of June, 1884, and thenceforth until the commence- 
 ment of this suit the Defendant John Martley by his agents, servants or workmcTi, and the 
 Defendant Clark obstructed the said ditch of the Plaintiffs and diverted large quantities 20 
 of the water thereof away from the said land of the Plaintiffs by placing a box in the bed 
 
 of the said ditch about three-quarters of a mile up the said ditch and by there making 
 and maintaining a cutting in the said ditcii and drawing off large quantities of the water 
 thereof through the said cutting back into Pavilion Creek, and the Defendants by force 
 and violence prevented the Plaintiffs from repairing their said ditch. 
 
 9. The Defendants thereby diminished the quantity of water which flowed down the 
 said ditch of the Plaintiffs and deprived the Plaintiffs of the flow of water to which they 
 were entitled as aforesaid and from using the said water for the purposes hereinbefore 
 mentioned. 
 
 10. Hy reason of the premises the Plaintiffs have sustained serious injury to their iJO 
 crops an<l land, and have been deprived of the profits and advantages they would have de- 
 rived from the sale of their said crops. 
 
 The Plaintiffs claim: 
 
 1. $5,000 damages for the wrongs complained of. 
 
 2. lliat tlie defendants, their agents, servants and w*)rkmen may be restrained by 
 injunction from continuing or repeating any of the wrongful acts hereinbefore omplained 
 of, and from in any manner obstructing or diverting the water in the said ditch and from 
 in any manner interferring with the Plaintiffs said right. 
 
 3. Such further and other relief as the nature of the case may recjuire. 
 
 Delivered this 8tli day of October, A. D., 1884, by 40 
 
 ROBERT EDWIN JACKSON, 
 
 Plaintiffs Sol. 
 To Messrs. Davie & Wilson, Defendants Sol. 
 
COUNTER-CLAIM. 
 
 IN THE SUPREME COURT OF BRITISH COLUMBIA. 
 
 Between IIoijkkt Carson and JosKi-n Euoi.t, Plaintiffs, 
 
 John Maktlky and Tiuman Cklah (-i.akk, Defendants. 
 (By original action.) 
 
 And the .-^aid John Hartley, Plaintiff, and li(jl)ert Carson and Joseph Eholt, Defendants. 10 
 
 (By Connter-Claini.) 
 
 The defence and counter claim of the above named John Hartley. 
 
 1. The Plaintiff Carson did not cm the lOth Hay, 1808, or at any other time 
 record the right to 200 inches of water fnjm Pavilion Creek. The water of the said creek 
 was not then or at any time since unoccupied. The said 11. Carson did not obtain the 
 written authority of the Stipendiary Hagistrate of the district to divert any of the water 
 of the said creek, nor <lid the said R. Carson at any time post or give notices specifying 
 the name of the applicant, the quantity sought to be diverted, the place of diversion and 
 the object thereof as re<juired by the law relative to the acquisition t)f water rights ; nor 20 
 (lid the said R. Carson at any time post on the land of the said J. Hartley, and on the 
 district Court House notices in writing stating his intention to enter such land and 
 through the sa:ae to take and carry water specifying any particulars relating thereto in- 
 eluding direction, (juantity, purpo.se and term. 
 
 2. William Samp.son did not on the 10th day of Hay, 1870, or at any other time 
 record the right to 200 inches of water from the said creek. The water of the said creek 
 was not then or at any time since unoccupied. The said William Sampson did not obtain 
 the written authority of the Stipendiary Alagistrate of the District to divert any of the water of 
 the said creek, nor did the said W. Sampson at any time po*t or give notices specifying the 
 name of the applicant, the (juantity sought to be diverted, the place of diversion and the ,^^^ 
 object thereof as recjuired by the law i-elative to the acquisition of water rights, nor did 
 the said W. Sampson at any time post on the land of the said J. Hartley, and on the Dis- 
 trict Court House notices in writing stating his intention to enter such land and through 
 and over tlie same to take and carry water specifying any particulars relating thereto in- 
 cluding direction, quantity, purpose and term. 
 
 3. The said William Sampson did not transfer the alleged right to the Plaintiff 
 Eholt, and the Defendant Hartley submits that the said Sampson had no power to make 
 the alleged transfer. 
 
 4. The Plaintiff Carson did not in the year 1807, or at any time construct a ditch 
 leading from the said creek through the land of the Defendant Hartley, and the land of 
 the Plaintiff Eholt to the land of the Plaintiff Carson, and the Defendant Hartley avers 
 that the ditch in question it not the ditch of Carson or of Eholt, and that neither has the 
 right to use it or any water flowing therein. 
 
 5. Tlie water of the said creek naturally flows through the land of the Defendant 
 Hartley. 
 
6. In the month of August, 18S4, the Defendant Martley duly obtained the right 
 to divert and use 200 inclies of water of the said creek. 
 
 7 The Plaintiff Carson and Defendant Hartley verbally agreed in the year IHOS, 
 that in consideration of Carson paying Martley one hundred dollars, (Larson should have 
 the right to use that part of the ditch running through Hartley's land sulgect to Martley s 
 right to use it in and to the iirst fifty inches of water running through it such water to be 
 taken for use whenever Martley reijuired it. , , t 
 
 8. It was in consequence of the breach of this agreement by Carson tliat the arbi- 
 tration mentioned in the statement of claim was had. i. ,1 i,v 
 
 9 The Defendant Martley has been in undisputed possession of so mucli of the 10 
 water of Pavilion Creek as is necessary for farming purposes and the use of the said ditch 
 
 f(tr over 20 years last past. . 
 
 10 The Defendants Martley and Clark have never acted in concert as m paragraph 
 8 of tlie Statement of (Maim is alleged, and the alleged grievances and trespasses in the 
 said paragraph mentioned so far as the Defendant Martley is concerne.l co.is.sted in the 
 Defendant Martley in exercise of his right to the said water and to the use of the ditch 
 placing a box therein to take fifty inches of water tlierefn.m, and taking it for use upon 
 his farin and not otherwise. The Defendant Martley denies that he directly or indirectly 
 prevented the repairing of the ditch and also denies the use of force ..r violence. 
 
 11 The Defendant Martley denies that the plaintiffs, ,.r either of them have or has been oj » 
 deprived by him of any water to which they or either of them are entitled and further 
 denies that they or either of them have sustained any damage. 
 
 12 The Plaintiff Eholt has no land and has not constructed any ditch. 
 
 13 And by way of counter claim the Defendant Martley repeats the allegatums 
 contained in the statement of defence and also except in so far as they are denied the state- 
 ment contained in the statement of claim, and further says that the Defendant Martley .. 
 possessed of a farm known as the '-Grange," and that in the month of June, July and 
 August in the year 1884, the plaintiff wrongfully diverted and deprived the <lefe-Kl-t of 
 the use o[ his said water whereby his crops became poor. The plaintiffs also broke the 
 W hnni xvSh the defendant's water was taken, and the said .defendant also incumd 
 great eS^^^ endeavoring to prevent the plaintiffs abstracting his water. Ihe Defendant 
 
 Hi=^SS^^"DleXflTSS:ilJcS^ E. Pooley solicitor 
 for the defendant John Martley 
 
 IN THE SUPREMlcSf'rlTlSH COLUMBIA, 
 
 Between Kohkut Caiison and Josfpii Enoi/r, Plaintiffs, 
 
 ;i(» 
 
 Axn 
 
 John Marti.kv and Tkiman Cki.au Ci.akk, Defendants. 
 
 (By original action.) 
 
 And between the said Truman Celah Clark, Plaintiff, 
 
 AND 
 
 The said Robert Carson, Defendant. 
 (By Counter-Claim.) 
 The defence and counter-claim of the above named Truman Celah (31ark: 
 
 40 
 
8 
 
 1. Tlie Defeiuliiiit Tnunaii (,'elah ("lurk is uimwrtre whether tlie tiUegiitious eim- 
 tained in paragraph 2 of tlie statement of claim are true or not. But with respect to the 
 alleged records therein mentioned says that the written authority of the Stipendiary Mag- 
 istrate of the District was never obtained. The said defendant moreover denies that Wil- 
 liam Sampson in the said paragraph mentioned or any other person lawfully assigned any 
 water privnleges to the J*laintiif Eholt. 
 
 2. The said defendant denies that the Plaintiff Carson constructed a ditch as stated 
 in paragraph 8 of the statement of claim and says that the said plaintiff entered upon 
 land then in the pjs^tession of the Defendant Martley and without lawful authority appro- 
 priated the said ditch, which said ditch was at the time of thetrespins and appropriation 10 
 mentioned in possession of the Defendant Hartley and is now in the possessi(jn of the De- 
 fendant ('lark. The Defendant Clark denies that the Plaintiff Eholt is entitled to use the 
 said ditch under any circumstances. 
 
 3. The Defendant (!lark admits the statement contained in paragraph 4 of the state- 
 ment of claim, but says that at the *.ime he constructed the ditch in the said paragraph 
 mentioned he had but recently acquired and entered into possession of his lands an<l was 
 unaware of all his rights with respect thereto. 
 
 4. The Defendant Clark admits that the measuring box referred to in paragra|)h 5 
 of the statement of claim is capable of carrying 200 inches of water, but says that the said 
 box is also capable of carrying a much greater (juantity, and further says that the said box -'" 
 is not cunstruete.i aj3)i"dingt) th3 stitute in suah cn3 mile and provided. 
 
 5. The Defendant (^lark denies that the nnitters mentioned in paragraph (5 of the 
 statement of claim were ever referred to arbitration or that any award was ever made and 
 further says that even if such (or any other) award was made he the said defendant is not 
 Ixiimd thereby. 
 
 t). The said defendant denies each and every the allegations contained in paragraph 
 8 of the statement of claim and with respect thereto craves leave to refer to the statements 
 contained in the counter-claim. 
 
 And by way of counter-claim this dnfendant repeats the allegations contained in his .... 
 statement of defence and further states as follows : 
 
 1. On or abont the ISth day of August, 1862, the Defendant John Hartley entered 
 upini and occupied a tract of land situated on Pavilion Honntain, Lilloett District, and 
 containing 1440 acres, and afterwards namely on the 11th day of February, 1864, the said 
 tract or parcel of land was granted by the Crown to the said John Hartley, his heirs and 
 assigns. ()n the first day of December, 1803, the said John Hartley conveyed the said 
 hereditaments by way of mortgage to Selim and Lnmley Franklin. The said deed con- 
 tained a power of sale in default of payment of the moneys thereby secured and default 
 having been made and in pursuance of the said power of sale the said hereditaments were 
 offered for sale by public auction, and Robert Heaven was declared the purchaser thereof, |,| 
 and on the 10th day of Angust, 1870, the said Selim and Lumley Frankin executed a 
 conveyance of the said hereditaments to the said Robert Beaven, and on the 27th day of 
 August, 1870, the said John Hartley executed a deed of confirmation whereby the said 
 hereditaments became vested in the said Robert Beaven for an estate in fee simple. This 
 defendant holds the said lands under an agreement with the said Robert Beaven, and was 
 
 >^ 
 
at tlie time liereiimfter mentioned and wtiil is in posKeHsion thereof with tlie consent (»f the 
 said Kobert Heaven. 
 
 2. Thirt defendant was at the times hereinafter mentioned and still is entitled to the 
 How of Pavilion Creek for nearly one and one-half miles along the eastern boundary of the 
 said hereditaments and is liketvise entitled to the flow of another stream for a like dis- 
 tance along the western boundary thereof. 
 
 3. The Plaintiff Carson in and during the month of June last past and t'enceforth 
 and until the commencement of this action obstructed Pavilion Creek and diverted large 
 (juantities of the water thereof away from the said land of this defendant, by placing and 
 keeping earth and stones in the bed of the said stream, and placing the box referred to in !'• 
 paragraph 5 of the statement of claim a short distance above the point where the said 
 stream begins to flow along this defendant's land, and by there making and nuiintaiiiing 
 
 a cutting in the bank of the said stream and drawing off all the waters of the said stream 
 through the said box, and cutting and conveying the same in the ditch mentioned in 
 paragraph 3 of the statement of claim to the land of the Plaintiff Carson. 
 
 4. The said Plaintiff ('arson thereby diminished the (juantity and at times complete- 
 ly arrested the water which flowed down the said stream and deprived this defendant of 
 the flow of the water to which he was entitled as aforesaid. 
 
 ."). By reason of the premises this defendant has been deprived of the use of the 
 water of the said stream his land has been greatly damaged and liis crops injured, and he " 
 has been unable to depasture cattle upon his said lands and has lost the proflts and advan- 
 tages he should have derived from his crops. 
 
 (i. The Plaintiff Carson has continued such obstrr jtion and diversion as aftiresaid 
 up to the present time, and although requested by this defendant to discontinue the same 
 has threatened and intends to continue such obstruction and diversion. 
 
 1. This defendant claims that the injunction granted by this Honorable Court on 
 the 25tn «'t.iy of July, 1884, may be dissolved. 
 
 2. A declaration that this defendant is entitled to the flow of the waters of the two 
 streams referred to in paragraph 3 of the counter-claim. 
 
 3. That the Plaintiff Carson, his agents, servants and workmen may be restrained 
 by injunction from continuing or repeating any of the wrongful acts hereinbefore com- 
 plained of, and from in any manner obstructing or diverting the water of the said stream, 
 and from in any nuinner interferriug with the defendant's said rights. 
 
 4. $5000 damages for the wrongs complained of. 
 
 5. Such further and other relief as the nature of the case may reijuire. 
 Delivered the 4th day of November, 18H4, by Charles Wilson, of Langley street, 
 
 V^ictoria, Solicitor for the Defendant Clark. 
 
 To Messrs. Drake, Jackson «fe Hehncken, Solicitors for Plaintiffs. 
 
 30 
 
nil 
 
 ill! 
 
 
10 
 
 STATEMENTS OF REPLY. 
 
 IN THE SUPREME COURT OF BRITISH COLUMBIA. 
 
 Between I^)BKKT Cakbon and Johki'ii Eiidlt, IMaiiitiffu, 
 
 AND 
 
 John Maktlky hucI Tri-man ('ki.ah Ci.ahk, Defeiiclaiits. 
 (By origirml action.) 
 
 And the said John Martley, Plaintiff, and Ilobert Carson and Joseph Eholt, Defendants. ''* 
 
 (By Co\inter-Chiiin.) 
 
 1. The plaintiffs join issue with the Defendant Truman Celah Clark on his state- 
 ment of defence and, except in so far as it contains admissions in reply to statements 
 alleged by the Defendant Truman Celah Clark by way of co\mter-claim, the Plaiiitiffs say 
 that on the first of December, 1803, the Defendant John Martley had no power to mort- 
 gage the lands on the first paragraph of the counter-claim mentioned under the land laws 
 of the Colony of British Columbia, and the plaintiffs do not admit the allegations con- 
 tained in the said first paragraph or any of them. 
 
 2. The Plaintiff Robert (Jarson denies that the defendant is entitled to the flow of 2<> 
 water in Pavilion Creek except subject to the Plaintiff's right to the water recorded by 
 him in the month of May, 1868. 
 
 S. The Plaintiff Carson admits that he did in the month of June last endeavor to 
 obtain from Pavilion Creek water recorded by him, but he was forcibly prevented from so 
 doing by the Defendant Clark, but the plaintiff denies that he at any time obtained more 
 water from the said creek than 200 inches recorded by him. 
 
 4. The Plaintiff Carson deniei that the defendant ha"! sustained the damage or any 
 damage whatever from the act of the plaintiff as in the fifth paragraph alleged. 
 
 5.' The Plaintiff Carson does not admit the allegations in the Gth paragraph of 
 the said counter-claim contained or any of them. 
 
 Delivered this 16th day of February, A. D., 1885, by 
 
 ROBERT E. JACKSON, 
 
 Plaintiffs Solicitor. 
 To Messrs. Davie & Wilson, Defendants Solicitors. 
 
 30 
 
 The plaintiffs join issue on the statement of defence of John Martley, save in so 
 far as it contains admissions. 
 
 1. In reply to the statements alleged by the Defendant John Martley, by way of 
 counter-claim, plaintiffs repeat paragraphs 2, 3, 7, and 8 of the statement of claim. 
 
 2. Plaintiffs do not admit that the Defendant John Martley is possessed of a farm 
 known as the "Grange," but say that the said land is in the possession and occupation of 
 Mrs. John Martley, Miss J. Martley, Arthur Martley, and one John Martley. 
 
 40 
 
II 
 
H PlaintiffH du not .uln.lt tlmt tliv Ih.f.n.lH.,t Join. Murtl.-y wa. at tlu- thm. of tl... 
 ,..,.,„u.„c..M.u.nt ..f tl.i. Hctio,. eitl.or l.y (.-.ssion or u. ow.rt or l.y n-cor.l .nntl..l to th. 
 
 "'"f "lC;i^f..tlu...,lo not udnut the allegations in tl. .ounter-Hai f tin- Do- 
 
 fi.n.lant Martley c-ontaint-d or any ..t tli"in. 
 
 ,>„liv.re.lthi.ll.th .lay of February, A. 1>.. ^'^^^^^ ,, _,^^,^,^,^^ 
 
 IMaintiffV Solicitor. 
 
 To MoH«rH. Davio .S: l'o..U-y, S..rK-itorH for Defen.laut Martley. . 10 
 
 I I 
 
il '' 
 
 ■ .feUwifir^-Tm 
 
12 
 
 DOCUMENTARY EVIDENCE. 
 
 WATKK KKfORllH. 
 
 • (Vide certified copien of ..riginal. ttle<l.) ^^^^^^^ ^i^^,,ti,kV. 
 ^Oc? 3rd 1800 -The right to the water of the creek en >sml hy the trail ru.n.inj, 
 r..J^ S^ House, PaSlion Fountain, to Captain Hartley. ^^^^-^^^^^^^^^^^^ 
 Pavilion Creek. 
 
 ,,„ 4tu 1807 -The right to the water of a creek running fro.n Pav.ln.n Mounta.n 
 i„to Paviliou'creek Valley, and running ch.e to (Captain Martley. ^^ ^^^,^,^^ 
 Per A. C. Ei,i,iorr. ■"• '^- " 
 
 ^ J^'^'Oth 1808.-The right to the u.e of 100 inche. water for the purpose of irri- 
 gathl:: lirlerted fro. a Lk .u the .n.nit of the n.u.^in^ -----;! ^^ 
 a point licar the 30-ni. post. 
 
 1808. 
 
 IMPEBFECT WATEU KEOOIiD. 
 
 1808 May 10. No. 43.— Pavilion Mountain— 200 in. 
 A ditch on Pavilion Mountain coming from a large creek on a mountain to al.out 
 
 opposite the 20-nule post, said water ditch for farn.ing purposes on ;"y '•;;•«' '• ' ^^"'^'^ *" 
 ve ord 200 inches of water. (Signed): E- H. SaNDKKN S. M. 
 
 Ue diverted from a creek crossing the wagan road near the .>M.n.e ^^.^^ --on 
 mountain. 
 
 Carson, hut transferred to M. G.llon. 
 
 1870. 
 HIT 1 oQ..,i TOUTS HOLT Pavilion Mountam. 
 
 J:S;tt ^:r ^\lr for farmmg purposes on h. -^^^^ --::^ :'" 
 
 Pavilion Creek, one nule fr.>M, hase of the nu)unta.n. C. L. 1 OIL, (.omnuss.onu 
 
 Certified a w.rrect copy.-K. Souks, Government Agent. 
 
 De^Uth-T. C. CLAEK-Pavilion-200 inches water from Pavilion Creek. 20 yanls 
 
 -Kt 
 
i 
 
 ii:-v 
 
12 
 
 DOCUMENTARY EVIDENCE. 
 
 WATKU KKCOBDS. 
 
 (Vide certiiied copies of originals tiled.) 
 
 No. 22. 
 
 JOHN MAllTLEY. 
 olf 3rd 1800 -The right to the water of the creek cro.ssed l.y the trail runuiug 
 ^.J^ Sii;: House, PaSlion Mountain, to (Captain Mart.ey's '-« ^ -^;^;-;;^^' 
 Pavilion Oeek. 
 
 ^ Ja^ith 1«07.-The right to the water of a creek running frou. Pavilion Mountain W 
 into Pavilion Ch-eek Valley, and running close to (..ptain Martley ^^^^^^^^^^^^^^^ 
 Per A. C. Ei.Liorr. • " 
 
 a point near the 30-ni. post. 
 
 Mav lOth-No. 43.--Il()BEUT CAKSON- Pavilion Mountain -200 incht^. 
 A di ch r Pavilion Mountain conungfnnn a large creek on. a n.ounta.n to a hou 20 
 .,;::!;:the 20-Mile Po.. ^.d water ditch for fanning FH- ^•;;;;y ^^ ^^ -^^ 
 ^"T"!S:'t:-;'riBB. C.rti«ed a correct copy.-. So.-., tWrnn.ent 
 Agent. ROBERT C ARSON. 
 
 Ti/TRtl. No 44-Theritrht to 200 inches of water for agricultur-il purp..ses t.. 
 May 18th-^o. 44. ^''^ng ..„„.. tl.« 2!t-niile Post, on Pavilion 
 
 I n 
 
 )ad 
 
 near the 2!t-niile Post, on Pavilion 
 E. II. SANDERS, W.M. 
 
 be diverted from a creek crossing the wagai 
 jnountain. 
 
 "?v27tl,-X.. 1 -Mr. (iillou, IVili.... M,.,mt«i„, tl,e right t.. 200l.id,» ..I ~t.r 
 
 Oarson, but transferred to M. Gillon. 
 
 1870 
 \r 1 0Q..,i TOUTS HOLT — Pavilion Mountain. -10 
 
 J:S;t^^;;r "w^er ... farming purposes on h. -;^^'-:;;-::^ :"" 
 
 PHvilion Creek, one nule fron. base of the nu.unta.n L. E. 1 ( E, Conun.ss.onu 
 
 Certiiied a correct copy.-K. Soiks, Government Agent. 
 
 Del' Uth-T. C. CLARK-Pavilion-200 inches water from Pavilion Creek, 20 yards 
 
\ II 
 
 III 
 
I? 
 
 below Carson's ditch, for irrigating purposes, on Clark's ^-^^^^'^j^^^^^^''''''^^ 
 Certified a correct copy.— F. Soueb. Government Agent. 
 
 No. 89 
 
 Aue 27th 1881.-Recorded this day in favor of Alice Maud Hartley, 75 inches of 
 water to be taken from a rivulet which flows above her pre-emption of 1(50 acres m the 
 
 S. E. corner of Pavilion Mountain. 
 
 F. SOUES, A. C. L. & W., Lillooet District. j^ 
 
 1884 
 Tune 2d-No 100-Recorded this day in favor of M. Gillon, the water contained in a 
 .mall creek near the summit of Pavilion Mountain on the north side, said creek crosses the 
 ^:^lria abouthalf a mile from the suu^nut, the waters to be diverted at -'- conven- 
 ient point and carried to his farm on Pavilion Mountain for agncultnral purp.se. Th . 
 vaLri to be measured into the 29 mile creek at some convenient po.ut on Pav.hon 
 MoTntlin in compliance with section 52, Land Act 1884 and the same umnber of ,nches 
 measured out of said creek where it passes through M. (tiUou s lauds 
 measu.ea F SOUES, A. C. of L. & W., LiUooet District. 
 
 20 
 
 HO 
 
 TuW 17th-No 101-Recorded this day in favor of Michael Gillon, the water contained 
 iu a sniu creek on Pavilion Mountain. Said stream flows from west to east and empties 
 ;:: U^lek Inown as the 29 mile creek at a point on his farn. Pavilion Mountain. The 
 w,.tPr to be used for irrigation purposes on his farm, Pavilion Mountain, 
 water to be used g P pJ^gQUES, A. C. of L. & W., Lillooet District. 
 
 Jur2tth-No. I03.-Recorded this day in favor of Robert Carson, Pavilion Moun- 
 tain 2^ inls of water to be diverted from Pavilion Creek on Pavilion Mountain for 
 
 irrigation purpses on his farm ^ ^^^ ^^ ^^ , ^ ^^ ,,,,,, district. 
 
 ^Aur'7th 1884.-Recorded this day in favor of John Martley Pavilion, 
 » ..The Oo„,er", .U„».e o„ l"«vi'-'^M— ^^ ^ ^ „, ^ ^ ^., ,,„„^. uu.ric. 
 " A,ri8tl. 1884.^1teco,d.d .1,1. d,y In f.v»r ..t M. Oillou, the .•..er» in . ....»ll 
 
•n ! 
 
 Itl, I 
 
 !li' 
 
 . I 
 
 11 
 
 (lin 
 
 ""m.'.'jiu ."wiJ^iMaiMdJiui 
 
u 
 
 10 
 
 1870. 
 
 May 27tl» 
 
 LAND RECORDS. 
 
 MATTHEW HilADY. 
 Julv 20th-x\o. 3U.-Matthew Brady, Pavilion Mountain, 160 acres. I hereby 
 ,„ake application to record 160 acre, of land, a rough sketch of which accon.pan.e. tus 
 iLIn; Baid land iB situated on Pavilion Mountain, inunediately adjo.n.ng and he- 
 tween the claims of R. Carson and Richard Hoey. M. HUA1>1. 
 
 ^^Say 25th-No. 36y.-Matthew Brady, Pavilion Mou.itain, 320 acres of land situate 
 .. p!;I; Mountain, ..d hounded on the northwest hy M.-. ^n^. ^ ^^; the 
 southeast by Mr. Beaven s farm. 
 
 WM. SAMPSON. 
 May. -u.- 331.-160 acres, William Sampson, situate on Pavilion Mountain and 
 ... the I n.ile creek, opposite the pre-en.ption of Messrs. ^-y ;"^^^— ^^ , ^ 
 
 Certificate of improveu.ent granted 18th Jan., 1873, C. E. Po.k, A. C. of L. & W. 
 
 160 acres, WILLIAM SAMPSON. 
 '^L lOth-No. 356.-I request permission to pre-en.pt 160 acres of land a,l- 
 Aug. iUtn no. '^•^ „ „ fi.p 27tl. of May 1870, s tnated on Pavilion 
 
 Joining the 160 acres recorded by me on the 27th May,^ ^^ SANDERS, S. M. 
 
 Mountain, as pcr-anne-xed plan. of L. & W. 
 
 Certificate of improvement granted 18th Jan., 1873, C. L. Io.k, A. 
 
 ROBERT CARSON. 30 
 
 ^"; ^^\a 1868 Robert Carson, Pavilion Mountain, 160 acres-Sir,-! beg leave to 
 Jrn. 2d l^««;-r.7jjp,^^^^^^^^^ .,f ,,„d situated on Pavilion Mountain, opp<.s.te the 
 
 im; in^r brow of thf hill to a large rock northwest, thence ^^^^^ 
 
 Recorded by me this 2nd day of Jan., 1868 K II. Sam.kks, S. M. 
 Certificate of improvement issued this 2yth May, 1869, E. H. Sani.khs, S. M. 
 
 '20 
 
 ROBERT CARSON, Pavilion Mountain. 
 
 ^';^ lotl. 1871 -I request permission to pre-empt 55 acres of land for agricultural 
 Aug. 12th, 1871 ^3;; P^^ . . I, „„ li^e 2Hd January, 1868, situated on 
 
 purposes adjoining the IbU acres pre empie j E. H. SANDERS, S. M. 
 
 Pavilion Mountain. 
 
 T. C. CLARK. 
 ' «y 9.1,-^No. 460.-Tr,„n«„0el«l,CUrk,P»vnio„Mo.„.«in 320 «r.., bended 
 „„ ,,„ n' W. ^.y S».np»„'. .-,„, .ndon .he S. E. by ^-"^^«;^; Commi»™er. 
 
 M) 
 
■ ! i 
 
 11 11 ill 
 
 \0£ 
 
 J 
 
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 R.CA 
 
 / 
 
 C 't ^! I.*— ^^■i^i^**' 
 
 ■ .^^ W l^lli— » 1»IW» ■«ri* 
 
 
 \i 
 
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 '•V. 
 
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 f3ST^^^^f^ 
 
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 5«£2; 
 
 
 
 . ^1 i»vK»>i<MK«*.*«*ft«»-**-»'*v *i*|*^;^if;jKr!^.T'~-' -" ■ - 
 
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 ^A 
 
M/a 
 
 ^. 
 
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 Carson vs Martley 
 
 Mke 
 
 HIGOINS DTK CO ViC. 
 
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 ir«j33»a8iiBKK((MS(t>jiS^jjtijjjaa^gi^iaj^^ 
 
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CONVEYANCES. 
 
 15 
 
 MOBTOAOK — JOHN MAinj.KV To HKI.IM AMi l.l MI.IV lUANKI.IN. 
 
 This indenture nmdo the tir«t day of DeceniluT, A. I)., ISUiJ, liutweeii .lohii Miirtli-y, 
 of Victoria, V. I., of tiie one part, iind Selini Franklin and Luinlty l''ranl<lin of fiic otlii-r 
 part, witnesrtetii that in consideration of tiiu sum of tivo hundred dollarK, V. I. currency, 
 paid by tiio Maid Selini Frani<lin and l.iinilcy Fraiiivlin to the Haid .lolin Martley, tiie re- 
 ceipt whereof he, tlie said .lolm Martley, dotii iierei)y acluiowied}^t.'; lie, tiie waid .luiin 
 Martley, dotli liereby for liiinself, iiirt heirs, execntorn, and ailniinintrat(irrt covenant with lU 
 the naid Selini Franklin and li. Frankiti, thi'ir exccntur* and adniinintrator.-i that he, 
 the naid .John Martley, his heirs, executors, and ailniinistrat.irs will p.iy to th'.' said Selini 
 Franklin anil L. Franklin, their heirs, executors, administrators and assijrns the sum of 
 five luuuh-ed (lollarH on the first day of June, A. I)., 1S(5^. and will pay interest for the 
 same, in the meantime after tiie rate of two per cent, per month, payaltle ninnthlv without 
 any deduction. And this indenture also witnesseth tii.it for the consideration aforesaid 
 the said John Martley doth hereliy jfrant hy tht^se presents unto the said Selim I'"raiiklin 
 ai\d L. Franklin, and to their heirs all that ( icce or pan-el of land Hituate near the 
 Pavilion, in the Colony of Hritish Coluinliia, an. I coiitainiiiif fnurteen hundred and sixty 
 acres (I-KIO), more or less as per plan hereunto annexed the raiil land havinjr lu'eii taken 2<i 
 up by the said John Martley under the Naval and Military Settlers' Act. T()irether with 
 all riifhts, privileires, easements and a|)purteminces, thereunto helonifing or in any wise 
 appertaining and all the estate, iiitereU, le;f il or epiit liile of tliu saiil John Martley in the 
 premises. To hold the said hereditaments unto the saitl S. Franklin and L. Franklin, 
 their heirs and assigns to the use of the said S. Franklin and L. Franklin, their heirs and 
 assigns for ever. Provided alway.s that if the said John Martley, his heirs, executors, ud- 
 niinistrators and assigns shall pay unto the said S. Franklin and L. Franklin, his execu- 
 tors, administrators and assigns the said suMi of five liundred dollars on the first day of 
 June, 180-4, and will pay interest as aforesaid, then the .said S. Franklin and L. Franklin, 
 their heirs and assigns will at the re(iuest and charges of the said John iVLartley, his heirs, ;;() 
 executors, administrators and assigns reconvey the said premisui unto the said J.)I'.;i Mart- 
 ley, his heirs and assigns, as he or they shall direct free from encumbrances by the said 
 S. Franklin and L. Franklin, their heir.-', executors an 1 assigns and the said John Martley 
 for himself. Ids heirs, executors, administratoi-s c )venants with the sai<l S. Franklin and 
 L. Franklin, their executors and administrators covenants with the said S. Franklin and L. 
 Franklin, their executors and administrators in case the said principal sum of five hun- 
 dred dollars or any part thereof shall remain due, pay to the said S. Franklin and L. 
 Franklin, their e.xecutors, administrators, and assigns interest for tiie sum )f five hundred 
 dollars or of so much thereof as sliall then remain unj)aid after the rate of two per cent, 
 per montli witliout any deduction. And that the said J. Martley now liath power to i(( 
 grant the premises unto and to tlie use of the said S. Franklin and L. Franklin, their 
 heirs, and assigns in tlie manner aforesaid free from encumbrances, and moreover that he, 
 the said John Martley, and his heirs, and all otlier persons lawfully or equitably claiming 
 any estate or interest in tlie premises will at all times at the request and charges of the 
 said S. Franklin and L. Franklin, their heirs, executors, administrators and assigns do and 
 
I. 
 
 Illllilil 
 
 a a 
 
16 
 
 execute all such acts and assurances in the law for the more perfectly assuriiifr all or any 
 of the said premises unto or to the uses of the said S. Franklin and L. Kranklin, their 
 heirs or assigns in manner aforesaid as by him or them shall i)e reasonably recjuired, and 
 it is hereby declared that if default shall be made in the payment of the sum of tive hun- 
 dred dollars on the day before mentioned, or any of the monthly interest it shall be lawful 
 for the said S. Franklin and L. Franklin, their executors, administrators and assigns at 
 any times or times after without any further consent of the said John Martley, his heirs 
 and assigns, to sell the premises or any part thereof either by public auction or private 
 contract with full power to buy in or rescind any contract for sale thereof, and to resell 
 without being answerable for any losi wiiich may happen thereby and to do and execute 10 
 all such acts and assurances for effectuating any such sale or as the said S. Franklin and L. 
 Franklin, their executors, administrators and assigns shall think fit and upon a sale by 
 any person or persons in which the legal estate shall be vested, sliall do and execute stich 
 acis and assurances for the purpose of carrying the sale into etfect as the person or persons 
 by whom the sale shall be made shall direct. Provided always and it is hereby agreed 
 that no purchaser shall be b((und to see or enquire whether any money remains on the 
 security of those present, or as to the propriety or regularity of such sale and notwith- 
 standing any irregnlai'ity or impropriety in such sale the same shall be as far as regards 
 the purchaser or purchasers deemed to be within the aforesaid power and to be valid ac- 
 cordingly, and it is hereby declared that the receipt or receipts of the said 8. Franklin and 2<> 
 L. Franklin, their executors and administrators shall be sufficient discharge for the money 
 in such receipts expressed to be, received, and that no such purchaser shall be bound U> 
 see to the application of his or their purchase money or to be answerable for any loss 
 non-application or mis!?pplication Ihereof, and it is hereby agreed that the said S. Frank- 
 lin and I^. Franklin, his executors, administrators or assigns shall hold the monies to 
 arise from any such sale in p;.rs;;anco with the aforesaid power upon trust in the lirst 
 place t(. pay thereout aU costs and expenses incurred in or about such sale or in re- 
 lation to the premises, and in the next plact to apply and pay unto !iim f.ll such 
 money for the time being due on the securitv ^i' these presents, and then to pay the 
 surplus If any such there be unto the said Jolr.i Alartlcy, his heirs and assigns. And ;{() 
 it is here'oy declared that nothing herein ontaisied shall affect the right of fore- 
 closure, and that the said S. Franklin and h Franklin, shall not be ansivenible for 
 any involuntary loss which may happen in or about the exercise of the aforesaid 
 power. 
 
 In witness thereof, the said ,f. Martley, and the said S. Franklin and L. Franklin, 
 liave set ther hands and seals on the day, and year first above written. 
 
 J. MARTLFY, 
 SELIM FRANKhlN, 
 LUMLEY FIIANKLLN. 
 Signed, sealed and delivered in the presence of II. WnniNd. ^^) 
 
 I hereby certify that John Martley, personallj known to me, appeared before me and 
 acknowledged to me that he is tlie person mentioned in the annexed instrument as 
 the maker tliereof, and whose name is subscribed thereto as party that he knows the 
 contents thereof, and that he executed the same voluntarily. 
 
 sa 
 
In testimony whereof, 1 have hereto set my hand and seal of office at Lillooet, this 
 . ^ lOth day of August, A. D., 1808. 
 
 i Skal. i 
 
 E. II. SANDERS, 
 
 Deputy Registrar of Deeds. 
 
 Deposited for registration the 18th day of August, A. D., 1868, at 11 a. m. 
 
 1 
 
 I 
 
 Registered in hook number two of mortgages at pages two hundred and forty-five to 
 ^sZ. two liundred and forty-eight, on the eigliteeuth day of August, in the year 
 i* *} of our Lord one thousand eiglit hund-ed and sixty-ei^dit, at eleven a. m. W 
 
 \ Skal. [ A. T. HrSlIHi, 
 
 Registrar General of 1>. C!. 
 
 ^ 
 
 No 68 A Registered 26th September, 187(», in absolute fee's book, vol. H, fol. (imt. 
 ^ E. GRAllAxM ALSTON, 
 
 Retfistrar (leneral. 
 
 17 
 
 (KOWN ()I4ANT TO .loHN MAKTLKV. 
 
 ,.„. % 
 
 20 
 
 i Seal of the Colony of ( 
 I British Columbia. J 
 
 JAMES DOr(iLAS. 
 
 No. 1. 
 
 Colony of British Columbia. 
 
 Victoria, by the Grace of (i..d, of the Unitcl King.lom of Great Ih-itain and Ireland, 
 and of the Colonies and dependencies thereof in Europe, Asia, Africa, An.erica Austrad- 
 asia. Queen, defender of the Faith and soforth. To all to whom these presents shall c.ne 
 
 "^^Tnow ye that we .lo by these presents for for us, our heirs, and successors f'"^ ''ivers 
 good causes and considerations us thereunto n.>ving, give and grant unto John Mar le;j, 
 ti Pavili.>n Mountain. British (Columbia, and late a captain in our i)th I egnnent of I-.ot, 30 
 his heirs and assigns, all that parcel or tract of nnserveyed land in Br.t.sh ( olun.b.a con- 
 sistin. of fourteen hundred and forty statute acres of land be the same more or les. u.th 
 the appurtenances situate at or near the southeast extrenuty of the table-land known a 
 Pavilion Mountain, and imme.liately above the honiestead occupied by he sau Jo 
 Martley in the valley and bounded approximately as follows : On the north by the open 
 ranae li Pavilion Mountain, the base of which is precipitous and well dehned , on t e 
 souUi by the crest of Pavilion Mountain overhanging the valley, or for greater accuacy 
 u niaJinary line between two stakes placed east and west al.mg this southern boun.lary ; 
 he east by the main creek which coming through a deep gorge on the "-untain run 
 through the Jalley into the Eraser ; on the west by a lesser creek which running fu.m tin ^,, 
 niountin falls close by the house of the aforesaid John Martley in the said valley. E - 
 c , t and always reserved out of this grant the sites of all Indian villages, gardens and fish- 
 Z pounds (ff any). To have, and to hold the said parcel or lot of land, and idl and 
 :S;;; and the pllses hereby granted with their appurtenances (but subject as herein- 
 after mentioned) unto the said John Martley, his heirs ami assigns forever. 
 
11 V 
 
 i i 
 
 I :'l 
 
 I 
 
 P |i' 
 
18 
 
 Provided nevertheless tliat it shall at all times he lawful for us, oui- heirs and succes- 
 sors or for any person or persons acting in that hehalf hy om- or their a\ithority to resume 
 any part of the said lands which it may l)e deemed necessary to resume for making roads, 
 canals, hridges, towing j)aths or other works of puhlic utility or convenience, so neverthe- 
 less that the lands so to he resumed shall not exceed one twentieth part of the whole of 
 the lands aforesaid, and that no such resumption shall he made of any lands on which any 
 huildinirs may have heen erected or which nuiy he in use as gardens, or otherwise for the 
 more convenient occupation of any such hiiildings. 
 
 Provided nevertheless that it shall at all times he lawful for us, our heirs and suc- 
 cessors, or for any person or ])ersons acting under oiu- or their authority to enter into and 
 upon any part of the said lands, and to raise and get thereout any gold, or silver, ore 
 which may be there upni or thereundtir situate and to use and enjoy any and every part of 
 the same land and of th,) easements and privileges thereunto helonging for the purpose of 
 such raising and getting and every other purpose connected therewith paying in resj)ect 
 of such raisin"' and getting and use reasonable com[)ensation. 
 
 Pi'ovided nevertheless that it shall he lawful for any person duly authorized in th.it 
 behalf by us, our heirs, and successors to take and occupy such water privileges, and to 
 have and enjoy su<'h rights of carrying water over, through or under any j)arts of the here- 
 ditaments hereby granted as may be reasonably recpiired for mining purposes in the vicin- 
 ity of the said hereditaments paying therefor a reasonable compensation to the aforesaid 
 John Martley, his heirs or assigns. 
 
 Provided nevertheless and these presents are upon this express ct)ndition that the 
 limits or boundaries of the lands and hereditaments hereby granted shall be subject to 
 such alteration, variation and rectification as shall be hereafter made (without altering the 
 total amount of acreagt') by or on behalf of the ]>erson or persons for the time being, act- 
 inir as Surveyor-Ueneral of the said colony upon the government survey overtaking the said 
 lands and the 1)oundaries so to l)e fixed by any writing under the hand of such person or 
 persons shall thenceforth be deemed and taken to be the limits included in this grant and 
 sucli decision so expressed shall be final to all intents and purposes whatsoever. 
 
 In testiinoney whereof, we have caused these, our letters, to be nuule patent and the 
 great seal of the Cohmy of British Columbia to be hereunto fixed. 
 
 Witness our right, trusty, and well beloved Sir James Douglas, Knight Commander of 
 the most Honorable Order of the Bath, (iovernor of our Colony of British (^)luml)ia, and 
 its Dependencies and Vice-Admiral of the same, A:c., &c., in our Colony of Vancouver 
 Island, this eleventh day of February, in the year of our Lord one thousand eight hun- 
 dred and si.xty-four, and in the twenty-seventh year of <uir reign. 
 
 10 
 
 2(1 
 
 ;jo 
 
 By Couimaud, 
 
 WILLIAM A. a. YOUNCi. 
 
 4(> 
 
 No. 68 A. Registered the IGtli day of September, 1S70, in absolv.te fee's book, vol. 
 3, fol. 639. K. GUAIIAM iU.STON, 
 
 Registrar General. 
 
i f i'p 
 
 ' ' li 
 
 ! if 
 
 i! 
 
 iH' 
 
 iSii 
 
 ill m 
 
 i 
 
1 
 
 DEKD UNDKB POWKB (IK 8ALE IN MOKTOAOE FROM SKMM AND Ll'Mr,KY KRANKr.IN TO UOIIEKT 
 
 BEAVEN. 
 
 19 
 
 TluH indenture made tlie tenth day of August, in the year of our liord one thouwand 
 eight hundred and seventy, between Selini Franklin, formerly of Victoria, in the ('olony 
 of British Columbia, but now of London, England, and Lumley Franklin, of Victoria, 
 aforcRaid of the lii'st pai-t, and llobert IJeaven, of Victoria, aforesaid of the second 
 part. 
 
 Whereas, by an indenture of mortgage dated the first day of December, A. D., 18()3, 
 and expressed to be made between John Hartley of the one part, and the said Selim 10 
 P^-anklin and Lumley Franklin of the other part in consideration of the sum of Hve hun- 
 dred dollars paid by the said Selim Franklin and Lumley Franklin to the said John Mart- 
 ley, the lands, tenements and hereditaments hereinafter mentioned, and hereinafter granted 
 were granted unto the said Selim Franklin aiul Lumley Franklin, and their heirs subject 
 to a proviso in the indenture now in recital contained for redemption of the same premises 
 by the said John Hartley, his heirs or assigns on payment by the said John Hartley, his 
 heirs, executors, administrators or assigns, to the said Selim Franklin and Lumley Franklin, 
 their executors, administrators or assigns, of the sum of five hundred dollars on the first 
 day of June, one thousand eight hundred and sixty-four, with interest at the rate of two 
 per cent, per month, payable monthly. 2(l 
 
 And whereas, by the said indenture it was further provided that if default should be 
 made in the payment of the sum of five hundred dollars on the day therein mentioned, 
 or any of the monthly interest it should be lawful for tlie said Selim Franklin and Lumley 
 Franklin, their executors, administrators and assigns at any time or times thereafter with- 
 out any further consent of the said Jt)hn Murtley, his 'leirs and assigns to sell the 8ai<l 
 premises or any part thereof either by public auction or private contract, antl to do and 
 execute all such acts and assurances for effectuating any such sale as the said Selim Frank- 
 lin and Lumley Franklin, their executors, administrators or assigns should think fit and 
 to give receipts for the purchase money. 
 
 And whereas, default has been nuide in payment of the said sum of five hundred ;>() 
 dollars, and of a large portion of the interest that has accrued due thereon, and the said 
 Selim Franklin and Lumley Franklin in pursuance of the power contained in the said 
 mortirat'c and hereinbefore recited, caused the lands and tenements therein and hereinafter 
 mentioned, to be exposed for sale at public auction (of which intended sale due notice was 
 given) on the ninth day of August, A. D., 1870, at Victoria, aforesaid, and the said 
 Robert Heaven offered the highest bid for the said lands and was thereupon declared the 
 purchaser thereof. 
 
 Now this indenture witnesseth that the said Selim Franklin and Lumley Franklin, 
 in consideration of the sum of five hundred and eighteen dollars and forty cents of money 
 lawful and current in British Columbia to them in hand paid by the said Robert Beaven, j^j 
 at or before the ensealing and delivery of tlie presents, the receipt whereof they hereby 
 acknowledge. Have and by these presents do grant and convey unto the said Robert 
 Beaven, his heirs, and assigns, all and singular that certain parcel or tract of land situate 
 near the Pavilion, in British Columbia, and containing about fourteen hundied and forty 
 acres more or less, the said land luwing been originally taken up by the said John 
 
Hi 
 
20 
 
 Martley, under the NiivhI ami Military Settlers' Act, and described in the grant thereof 
 from the (^rown to the said John Martley, as situate at or near the southeast extremity of 
 the table-land known as Pavilion Mountain, and immediately above the homesteail occu- 
 pied by the said John Martley in the valley, and bounded approximately as follows : On 
 the north by the open range of Pavilion Mountain, the base of which is precipitous and 
 well defined ; on the south by the crest of Pavilion Mountain overhanging the valley, or 
 for greater aeciiracv, an inniginary line between two stakes placed east and west along 
 this southern boundary ; on the east by the main creek which coming thmugn a deep 
 gorge on the mountain runs through the valley into the Fraser ; on the west by n 
 lesser creek which running from the mountain falls close by the house of the afore- 10 
 said John Martley, in the said valley, subject nevertheless to the reservations, limita- 
 tions and provisoes expressed in the origiiuil grant thereof from the ('rown, to have, 
 anil to hold the same unto and t»» the use of the said Robert Heaven, his heirs and assigns 
 forever freed and discharged from all right and ecjuity of redemption, and all claims and 
 demands under the said indenture of the first day of December, one thousand eight h\in- 
 dred and sixty-three. 
 
 And each of them the said Selini Franklin and Lundey Franklin, so far as relates to 
 his own acts an<l deeds, doth hereby for himself, his heirs, executors and administrators 
 covenant vith the .said Rul)ert Heaven, his heirs and assigns, that they, the said fSelini 
 Franklin and Lumley Franklin, resj)eetively have not executed, or done, or knowingly 2** 
 suffered or been part or privy to anything whereby the said premises hereinbefore ex- 
 pressed to be hereby granted and released or any part thereof are, is, or nniy be impeache<l 
 affecte<i or incumbered in title, estate or otherwise, howsoever or whereby the said Selim 
 Franklin and Lumley Franklin, respectively are in anywise hindered from respectively 
 granting and releasing the same premises or any part thereo' in nuinner aforesaid. 
 
 In witness hereof, the said parties have liereto set their hands and seals tlie day, and 
 year first liereinljefore written. 
 
 KKl.IM FRANK I.I N, 
 I'v liis Attorney in fact, Lumley Franklin. 
 H'MLKV FRANKLIN. 
 
 Ml 
 
 Signed, sealed and delivered in the i>.'*eHence of A. I^><:KK Roiikktso.n. 
 
 I{eceived from Robert Heavei;, the within named vendee, the sum of live hundred 
 atid eighteen dollars and forty cents, being the consideration mentioiuMl in the written 
 .lee<l. 
 
 Victoria, lOth August, A. I)., ISTO. 
 
 Witness, A. 1^>(KK Roiskutso.n, 
 
 8p:lim franklin, 
 
 Hy Ids Attorney in fact, Lumley Franklin. ^^ 
 
 LIMLKV FRANKLIN. 
 
 No, ('>H A. Ri'gistenHl the 10th <Iay of S«!ptemiH!r, in absolute fee's book, vol. !{, fol. 
 mu. K. (JRAMAM ALSTON, 
 
 Itegistrar (Jenera' 
 
fi' ! 
 
 I III H 
 
 ! ! 
 
 I i ! ! 
 
 li i! 
 
 M Ih 
 
I liereliy certify tliat Alexutider It. Ilobertson, perrtonally kimwii to iiii', iippt'tirwl 
 before me and acknowledged to me, that he is the person wiiose name is HiibHcriijeil to tlie 
 annexed instrument as witness, and liaving been <liily sworn by me, did prove to me that 
 Lumley Franklin, and also as attorney for Selim Franklin, did execute the same in his 
 presence voluntarily. 
 
 In testimony whereof, I have hereunto set my hand and seal of oftice at Victoria, 
 this fifteenth day of September, in the year of our Lord one thousand eiifht hundred and 
 seventy. 
 
 [L S.J E. IHIAHAM ALSTON. 
 
 Keifistnir (»enci'al. ]() 
 
 21 
 
 roNFIIJ^MATroN DKKI) .lOU.N MAKTI.KV To IIOIJKKT IlKAVKN. 
 
 This indenture, made the 27tli day of Auirnst, in the year of our Lord one thousand 
 eiidit hundred and seventy, between John Martley of Pavilion mountain, i:i I'ritish (!ol- 
 umbia, of the one part, and Uobert lieaven of the City of Victoria, in British Columbia 
 aforesaid, of the other part. 
 
 Whereas, by an indenture of mortgage l)earing date the first day of December, A. I). 
 1803, and made between the said John Martley of the first part anil Selim Franklin and 
 Lumley Franklin of the second part, the said John Martley did grant unto the said Selim 2(1 
 Franklin and Lumley Franklin all and singular the hereinafter meutione<l and descrilu'd 
 premises, to have and to luild the same untti the said Selim Franklin ami Lumley Frank- 
 lin, their heirs and assigns, to the use of the said Selim Franklin and Lumley Franklin, 
 their heirs and assigns, forever; subject neverthless to a certain proviso for retlemptiim, 
 as by reference to the said indenture of mortgage will more fully appear. And whereas 
 default was made in payment of the principal money and interest secured by the said in- 
 denture at the times therein limited for the payment thereof, and the said Selim Franklin, 
 ill pursuance of a power contained in the said mortgage, caused the lands and tenements 
 therein and hereinafter mentioned to bo exposed for sale at public auction at the city of 
 Victt)ria aforesaid on the ninth day of Avgust, A. D. 1870; and whereas the said Robert 
 Beaven offered the highest bid for the said lands and tenet , ai i, and was thereupon de- 
 clared the jmrclmser thereof : and whereas the said Robe.' I'aven hath applied to the 
 said John Martley for a deed confirming his title as such purchaser to the said lands and 
 tenements, and the said John Martley hath consented to give the same. Now this indent- 
 ure witnesseth, that in consideration of the i)reniises, and in further consideration of the 
 sum of five dollars by the said Robert Beaven to the said John Martley in hand well and 
 truly paid at or before the ensealing and delivery of these presents, the receipt whereof is 
 hereby acknowledged, he, the said John Martley, doth hereby grant and confirm unt<i the 
 said Robert Beaven. his heirs and assigns, all and singular that certain parcel or tract of 
 land situate near the Pavilion, in British Columbia, and containing about fourteen hundred 
 and forty acres, more or less, the said land having been originally taken up by the said 
 John Martley under the Naval and Military Settlers Act, and described in the grant there- 
 of from the Crown to the said John Martley as situate at or near the southeast extremity 
 of the table land known as Pavilion Mountain, and immediately above the homestead oc- 
 cupied by the said John Martley in this valley, and bounded approximately as follows: On 
 the north by the open range of Pavilion mountain, the base of which is precipitous and 
 well defined; on the south by the crest of Pavilion mountain overhanging the valley, or for 
 
 .".() 
 
 40 
 
'ill 'i 
 
greater accuracy an imagiiirry line between two HtakeH placed east and west along thw 
 southern boundary; on the east by the main creek which, coming through a deep gorge on 
 the mountain, runs through the valley into the Fraser; on tiie west by a lesser creek which, 
 running from the mountain, falls ch)8o by the house of the aforesaid John Martley, in the 
 said valley, subject nevertheless to the reservations, limitations and provisoes expresse*! in 
 the original grant tnereof from the Crown. To have and t«) liold the same unto ami to 
 the use of the said Kobert Beaven, his heirs and assigns forever. 
 
 In witness whereof the said parties have hereto set their hands nr-l «eai8 the day and 
 year first above written. J- MARTLEY. 
 
 Signetl, sealed and delivered in the presence of (the name "Beavan" being altere«l 
 into "Beaveu" throughout.)- A. B. Ff.houson. 
 
 10 
 
 22 
 
 Livud Ilegistry Ordinance, IH70" -For wihuM^. 
 
 I hereby certify that Adam IJ. Fergii> .11. pers >nal!y known t) me, appe.ired before 
 tne and acku..wle(lj>;e,l to me thiU lie U tlie pLTson wli .so name is subscribed to tlie an- 
 nexed instrument as witness, an.l liavinjr Iiclm. duly sworn l)y me, <ii(l prove to me that 
 •John Martley did execute the same in his presence voluntarily. 
 
 In testimony whereof, I have huretu set my hand and seal of ottice at Llllooet, this 
 tirst day of September, in the year of our Lord one thousand eight hundred and seventy. 
 ^ ' E. 11. SAXDEIIS, 
 
 Stipendiary Magistrate. 
 
 2(1 
 
 A<»KKEMK.\T BKTWKKN UoniOUT IlKAVKN ANI> TIU'MAN CKLAU CI.ABK. 
 
 \u atrreement made tlie eighth day of January, one thousand eight hundred and 
 eiahty-three, between the Honorable Robert Beaven, of the (5ity of Victoria, hereinafter .^^^ 
 caUed Ihe vendor of the one part, and Truman (3elah (Mark, of I'avillon, Lillooet District, 
 farmer, hereinafter called the purchafer of the oth^r part. Whereby it is mutually agreed 
 between the parties as follows : 
 
 1. The vendor will sell, and the purchaser will purchase at the price of one thousand 
 dollars, the feesimple in possession of all that piece or parcel of land known aB lot 22, 
 group 1, Lillooet District, said to contain fourteen hundred and forty acres (more or less) 
 with the appurtenances. 
 
 2 The purchaser shall pay three hundred and thirty-three dollars, part of the said 
 purchase money and interest on the said purchase money of one thousand dollars, at the 
 rate of twelve per cent, pr annum fom the first day of Decend)er, one thousand eight ^,, 
 Imndred and eighty-two, on the fir.t day of December, one thousand eight hundred and 
 
 eighty-three. x « i.i 
 
 3 The purchaser shall pay three hundred and thirty-three dollars other part of the 
 said purchase money of one thousand dollars, and interest on six hundred and sixty-seven 
 dollars, part of the said purchase money at the rate of twelve per cent, per annum from 
 
ill IS 8, 
 
 l!i! 
 
 I" 
 
 1, lllffl ' 
 
23 
 
 111 
 
 thu first day of December, one thousHiid eight liundred und eigiity-three, on tlie iirst day 
 of I)ecem])er, one tliousand eiglit Imndred and eighty-four. 
 
 4. The purchaser shall pay three hundred and birty-iour dollars, the balanw; of the 
 said purchase money of one thousand dollars and interest '.hereon, at the rate of twelve 
 percent, per annum' from the lirst day of December, one th.msand eight hundred and 
 eiahty-four, on the tinst day of December, one thousand eighv hundred and eighty-tive. 
 
 "^ 5. The purchaser shall pay all taxes in respect of the premises before the 3()th day 
 of June, in each year, and if he shall fail to do so the vendor may pay the same and re- 
 cover the amount thereof with interest thereon, at H., .-ate of twelve per cent, per annum 
 from the purchaser. 
 
 C> If the purchaser shall make default in payment of any instalment of principal or 
 interest money the vendor shall be at liberty to cancel this agreement, resume possession of 
 the premises, and th: Mrincijml and interest money already paid shall remain forfeited to 
 
 the vendor. , 
 
 7 Upon payment of the whole of the purchase money, interest and taxes to the 
 vendor, he shall execute to the purchaser a proper assurance of the premises to be pre- 
 pared by and at the expense of the latter. 
 
 In witness whereof, the parties to this agreement have liereunto set their hands and ^^^ 
 seals the day, and year tin*t above written. c\ Mi 
 
 Signed, sealed and delivered by Truman Celah (^lark, in the pi-e..ence of Frederick 
 
 Soues. 
 
im 
 
 Mil 
 
24 
 
 10 
 
 JUDGES NOTES AT TRIAL. 
 
 IN THE SUPREME COURT OF BRITISH COLUIBIA, 
 
 Between Eobebt Carson and JosKPir Eholt, Plaintiffs, 
 
 AND 
 
 JoHK Hartley and Truman Cki.ah Ci.ark, Defendants. 
 
 (By original action.) 
 
 And Truman Oelah Clark and John Martley, Plaintiffs. 
 
 AND 
 
 Robert Carson and Joseph Eholt, Defendants. 
 (By Connter-Claini.) 
 
 Friday, March 20th, 1885. 
 
 Mr. Drake for Plaintiff. 
 
 16tli May 1868, plaintiff recorded 200 lnche.s water at ditch head (A.) 
 
 16th May, 1869, Sampson recorded 200 inches water, same creek, assigned W. 2(, 
 
 Eholt, old mining ditch. 
 
 About '67 plaintiff constructed ditch. 
 
 Plaintiff Carson sworn : . , , *• 
 
 Took up land 1868, have no Crow,, grant, [certified copy of recorded pre-emption 
 
 and certificate improve.nent admitted I found ditch from 26 mile post, old m.n.ng 
 
 ditch — cleared it. 
 
 Mr. Attoiuey-General objects. . 
 
 It was a small ditch; it required widening „.„! I had to put ,n flum.ng m our 
 places, I had to go to expense §1500 or $1600 ; the distance to m.N ,anch of the whole .,„ 
 ditch is about lol miles by niy estimate, never chained it. Ditch iicad about 1^ miles 
 
 above S. E. corner of "Military Grant." . 
 
 This is a copy of my ditch record, 16th May, R. C, Pavilion Mountain, 200 inches 
 
 from large creek of to opposite 26 mile post. (Document put n..) 
 
 C. J.-That is a record of a desire by somebody, by E. H. Sanders literally, to record 
 water, not that anybody has recorded any. . 
 
 iarson continuing-No cultivation by Martley of Military Grant, h- was cultivating in 
 valley below. In 1869 we had some dispute about water, he was . itting my ditch. So 
 lone ago 1 forget the details we went to arbitration : award produced. 
 
 Martlev did use water after that out of my ditch, he generally notihed me when he 
 wanted it, trough produced model. From time of dispute I was in continuous occupation 
 of ditch I had about 300 to 400 acres of land, 170 acres hay, and 100 acres grain, 5 acres 
 turnips and potatoes, and some considerable land under summer fallow every year. It is 
 all worth nothing without irrigation. 
 
 Brady from whom Clark bought had a small ditch. That ,s below my ditch No 
 dispute till last year with Clark or Martley ; Clark was using Hartley's water from Island 
 and Milk Ranche Creeks. My ditch crosses Island Creek near where the arbitration box 
 is placed. I found a notice 15th May, 1884, addressed to Carson and Eholt. I have 
 
i 
 
 )ll' 
 
>■ '« 
 
 25 
 
 permission from Hartley to keep this box open as Martley has exclusive right. No scar^ 
 dty then. I found the box broken, perhaps 70 or 80 inches running out of . Iiteh. I tu m 
 cityiiien. remained for one and a half days. Bound 
 
 lltTulltion I V^^^^^^^ it for aLall space; it was again obstructed an.l I then 
 
 JouncHtrnotLri^^^^ After that everyday short of water, nj June 
 
 Srshoxi Afte;'"at I found a box in ditch 3 mile up, water was then running all ove 
 pririe and back into Pavilion Creek, probably 70 or 80 inches was thus -"-"f ,- J^ 
 CsTonW 40 or 60 inches, after middle July we don't want water. We l-^^-yl-'^ 
 ^M hay-, it - dried up hay worth S20 net; 70 -.s ou.di to -er^ge ^^^^ ^^^ ^ 
 acre- some of it not 00 lbs. per acre, some never cut at all. Fully 7o tons «'»""/"' "J j,, 
 in st;v k at 1 ouse $20 net over expenses, $300 damages. Had to leave «--«- J^^J- ;. "^ 
 pCtd land, to keep one man on ditch all the time ^^^^^^^^^^^^^S. 
 able to plough, et«. Gillon and Martley have previously recorded all the water m Uiiu 
 
 Creek, 
 
 New cut to serve Mill at 21 mile post. 
 
 Cross-examined by Mr. Attorney-General for Martley. ■ 
 
 Ditch will carry 4.50 inches not GOO inches. After I put the dam "ever had 600 or 
 
 500 ^. not moie than ^ or 60 niches^ ^^^.^^ZT'^r!^ ^ tiU ^i 2 . 
 niid P.nitinued richt along, found notice about 15th oi i()tli Maj. /i'"" ^^"> 
 J^ie dlatij obstruction continued. Summer-fallow requires irrigation or ground be- 
 comes t^o hard to plough, roots, hay, grain all require it. 
 
 Whole quantity of my land is nearer 400 acres than 300 acres. 
 
 Hoev is north of me, he had some grain I believe last year, I never had any inten^st 
 
 ,„ ,"T - . - ■ir.r-^»" :rxr Scat: r ^''^ ^' 
 
 award to be for Hartley's own use on his own land. 
 
 Cross-examined by Mr. WDson for Clark-The last box I put in was 12th J ane, 1884 
 
 the w»ter Mclmivel, o.i my o>vn Jiloh and on i>0 other plMe. 
 
 .,™.ephEholt,.wor„--I bought from Loui,Ehol. who h«d |»«gM^^^^^^^^^ 
 
iifiM! 
 
 'itei 
 
 ill III 
 
 ti'.-'j 
 
26 
 
 Hartley nfterwiirds snid he had told Clark he might have it, not wanting it himself ''riglit 
 away." Several times afterwards found ditcli broken, water ran into Clark's ditidi perhaps 
 40 or 50 inches at first, but water makes its own way, and at last it was porhajjs 100 im-hos. 
 Found a box in ditch about middle of Military Grant. Took it out. Describes quarrel on 
 ground with Manson, Hartley's son-in-law: he replaced it, etc., many quarrels, etj., etj. 
 Damage for want of water 70 acres barley only ^ crop, ordinarily 2000 lbs. to an acre, 
 worth 2 J cents in Clinton. Hay not good 30 acres ought to b3 2 or 2^ ton-t par ajrti, now 
 not 20 tons in all. There was n(,i in that year so much witar a^ in othar yeirs. Did not 
 get any water from Gilhm's Creek. I afterwards did; in May I got about 10 inches from 
 Gillon's Creek by Hartley's permission, but tliat was insufficient. If Carson's ditch had 
 not been broken I should have had enough. 
 
 Cross-examinetl — I bought the land two years ago from Cousin Louis Eiiolt. I took 
 out the box in the middle of the military grant and trod on it, the water tlinmgh it would 
 go back into Pavilion Creek and so on to Hartley's land. I think it would have carried (50 
 inches. The first dispute was in 1881, none in 1883, plenty for all, 1884 was a dry year 
 scarcity of water in all the creeks. I have a Crown grant at home. It is not only a pre- 
 emption record'!* (C. J. — Witness does not know difference). I used about 20 acres of 
 Hoey,8 land; on 18 acres I u.ied water from Giilon's Creek; but Hartley receded from hi.-i 
 promise, I used some from Carson's ditch: that, water I did n<it use on my own land I 
 bought out Louis Eliolt on 1st March, 1883. 
 
 Louis Eholt — Know Joseph's pre-emption. In January, 1873, Sampson wfis in pos- 
 session of that land. He moved out and I moved in; alter negotiations with him there 
 was a bill of sale. I have said to Joseph; I know the ditih ever since Cirson male it 
 and before. It would not hold water tlien. Ditch cost much money to repair and widen 
 and construct— ; I and Car.son worked: there was high flume; I have always used water 
 through Carson's ditch : Know Hartley's farm called the Grang?, I don't think he can 
 use the water on the Grange; I don't think he does at least. I think he has no flume. 
 
 Cross-examined — Took oath of allegiance before John Saul, Tom. Humphreys and 
 another, and they gave me certificate of naturalization. 
 
 To the Court — This was mar^aged by the three: Can't say as to certificate don't re- 
 collect when, think before I bought Sampson out. The ditch in 1873 was quite useless. 
 It was filled up broken etc., required repairs Gillon's Creek at the biggest may have 75 or 
 perhaps 80 inches. In August or September not more than 10 or 15 inches. 
 
 Dennis McGee, farmer, worked for Carson about 20th March, 1884, stayed near six 
 months, worked on ditch C'eanin" lut, turned water <m in first i)art of Hay. ran freely first 
 day then took off, went up to j why, at head of diti;h it ran off back into creek for the 
 oi)ening I had made had beea broken and filled uj) with a few stones, etc. It stopped 
 again, I watched two or three n»,;;hts with Joseph, 4 a. m., two Chinamen, Joseph asked 
 who authorized'!* They said Clari; lh^ n Hartley. We stopped it; several times after in 
 other places, Then we found another box J mile from Hartley's old box. It ran 50 or 60 
 inches out of ditch, ran down one gulch to another. Cut from Carson's ditch to Clark's 
 at the springs tt)ok about one-third of the water, Joseph closed that up, Clark was there 
 and opened it again. There was some altercation, at last we left, went to Hartley's new box, 
 that was running out also. Hartley told us that as he did not want the water himself he 
 had given Clark leave tt> use it for the present. 
 
 10 
 
 21 » 
 
 ;;() 
 
I !i 
 
 19 l|t| 
 
 i 
 
 irt ! I II! 
 
9.1 
 
 Cross-examined by Mr. Attorney-General. 
 
 Josepli broke box deliberately, that was the box nearest the springs. 
 
 Cross-examined by Mr. Wilson When I saw the water coming on ('lark's land 
 there were not I think lOJ inches left in the ditch. Tliero may have been 50 inches. 
 
 Humphreys — Examined crops for Carson. 
 
 To Mr. Drake — Some 70 acres badly damaged want of water, damage to barley 
 $1000; examined hay 6 acres good 20 or 25 acres was damaged to extent of $500 for want 
 of water. 
 
 Cross-examined — Not from bad farming. 
 
 To the Court — This is only Joseph's land, I was not on Carson's. 10 
 
 Cornelius O'llalloran, farmer, examined Carson's crops July, 75 acres timothy ^ crop, 
 20 acres hay no crop at all, did not go over grain ; cause want of water. If you have no 
 water the land is useless. 
 
 Cross-examined — ^The higher you go up the less water you rcijuire. Hut all of us 
 de{)end on water. 
 
 Eliza Jane Carson, wife of the plaintiff, keep farm account. Loss 100 tons of hay 
 beyond other years, last year it was W()rth §40 per ton, in general $25, could not summer- 
 faUow at all. Never been short water before except from accidents: 7tli May water on, 
 8th iu)ne and husband and men went to look. This happened ivgain and again, and on 12tli 
 June water entirely stopped, even for house purposes, chickens, etc. Then mended, then 2<> 
 broke again, 2 or 3 men irrigating co\ild not work. 
 
 Mr. Atforney-Cireneral for Defendant Martley. 
 
 John Martley, Defendant, sworn — Ileside iVvilion Mountain, wife, son, and two 
 daughters. 1861 took up Imd pre-emption clainn of family, defendant, wife and children, 
 4 miles long, J mile wide. Later 1883, land office pl.in of 4 claims, certificate of improve- 
 ments on 640 acres. We all look on thu farm fn a '.'Huiily farm for benefit of all. In 
 
 1861 I acquired, bought out lieynolds. He steppeil out, I stepped in he had not any 
 title. There was a company of French miners whosa c'aini nearly worked out in 1861 or 
 
 1862 who then took water from Pavilion Creek ; that claim was then abandoned. In 1863 
 very dry: Gillon's Creek and Milk Ranche ran dry. I repaired the abandoned mining j{(( 
 ditch between head of Pavilion and Island Creeks and so supplied Island Creek with water 
 for my farm. In the same year I took military grant and in November saw Governor. I 
 did not again use that ditch till 1868, but I did take water from other points in Pavilion 
 Creek. I had generally enough from Gillon's and Milk Ranche. In 1868 I went on 
 military grant, in the spring I found some work being done there by Carson, I brought 
 
 an action of trespass agains' him before Sanders at Lillooet, '.vork ordered to be stopped, 
 Sanders gave judgment for me, and suggested arrangeinent, luxt day Carson agreed to 
 pay $100 for use of ditch and I wa^ to have 50 inches ; he paid $100 ; I put box in and 
 took what water I wanted, 1869 very dry ; box taken from ditch and Carson refused t(t 
 carry out t'le arrangement, arbitration, award, thenceforth I drew water, not through a a{) 
 box. In "878 or 1877 Carson was at my house getting hay. I thought I would raopen 
 question of box, I told him to put in a 30 inch box and I would l)e satisiied : he cid so. 
 That was the box put in in 1878. Thenceforward I got water all the time, box never 
 removed, we got along tolerably till last year, 1884, then there was another drought. In 
 May at the lowest estiniate 600 inches in Pavilion Creek Carson and Eholt dammed the 
 
28 
 
 20 
 
 creek Imek iit tliu heitd and took hII the water. Olurk wiih in great want, lie liad however, 
 second elaiin on (rillou'rt (!reek. I waived my first riglit of that and opened tlie Imx to 
 hei|) niyneif out of Pavilion ('reek, OarHoii was indignant at my helping a ruined miin and 
 stop|)ed me, so I notified him I should revert to the oO inch box arrangement and sent 
 him a letter to that effect. 
 
 Mr. Drake ohjected. 
 
 The verbal agreement of 18()H was to ije reduced to writing and signed h\ both. I 
 accordingly nuide it out in duplicate aiul signed one. I sent to Carson f<ir signature 
 (several applications) for n>y copy but he always evaded subject. At arbitration 1S7(), 
 these documents wei'C (!alled for by me or the arbitrators. ('ar.son said they wei'c lost 10 
 (letter loth May, IHS4, Carson to Martley, referring to enclosed coj)y of a document 
 and objecting to Martley allowing ('lark to use 50 inches, etc.) Up to the receipt of 
 that notice, inililference to me whether supply to Clark's farm sufficient or not. but 
 from tone of letter I gave Clark all the advantage I could. ^^"py poduced ^[artley 
 to Carfion, 19th May, 18H4. Notice to re.seind verbal agreement after Ist June, and stating 
 effect of the verbal agreement. [N. 13. The memoranda in nnl ink on thiH diKuiment wore 
 made subsequently.] Injunction asked in June; Mr. Justice Walkeni refused it. Head 
 noti(!o 30th May, 1884. It was a 50-inch box but had a gate, and I only took itO inches. 
 One evening in June, 1884, my supply of 50 inches cut off; sent up Manson to turn on 
 water; I took steps to prevent any breach of the peace. Where the creek falls on ray 
 ranch average amount at midsummer in Ixtth creeks, Gillon's and Milk Ranch, 30 or 40 
 inches. There is a considerable supply of waste water from three farms on mountain 
 which comes on my wife's pre-emption from 29-Mile Creek (Gillon's). That is in addition 
 tq the 80 or 40 inches. In some years I have enough, last year it was to some extent in- 
 sufficient but I had much near the house in fallow, which does not require continuous irri- 
 gation. My crops near the lake were damagetl by tl) ^ olistruction of the 50 inches in 
 Pavilion Creek 3 acres of wheat altogether lost and tin crop over all the land was light, 
 about 300 lbs. per acre diminution, 24 acres nil wheat 1500 lbs. is an average crop, 11,70^ 
 lbs. thoit of wheat worth 3 cents a pound, minus J cent expenses, equal 2J cents net. Re- 
 corded water 18H4, 200 inches record put in. The "Corner" was purchased land south of 
 Pavilion Creek bordering on Military Grant. Loss of men's time $50, for watching creek 
 S5, for broken box (cost and labor of putting it in.) I never acted in concert with Clark 
 in any way whatever with reference to nets on the ditch, never took water except from my 
 box. There were about 35 acres Hoey watered from the ditch, habitually for years, China- 
 men were supplied in 1875, can't say the terms on which the supply was granted. The 
 part of the old mining ditch between Carson's and the head was in 1868 put in repair, be- 
 h)w it remained out of repair. Hoey's farm nud the Chinamen were supplied from the 
 ditch far below my box where I did not assume any right or interest. 
 
 Cross-examined by Mr. Eberts— Mr. Gore's letter of 1884 I consider semi-official. 
 My pre-emption was the second counting from the West Indian reserve ; is on western 
 boundary of all our pre-emi)tion. Gilhni's Creek runs into my pre-emption. The house 
 is (m my pre-emption. My wife's is the next eastei'ly: then my daugliter's. 40 
 
 I have not recorded water for any particular pre-emption 200 inches from Pavilion the 
 whole of the water in Gillon's Creek. I have about (50 or 70 acres under farm. I do not 
 recollect stating only 5 acres. Mine is not the most westerly of the four pre-emptions. In 
 1884, in May and June, there were sometimes 15 inches to 70 inches, not natural water, in 
 the creek ; all the water there was, Gillon had cut off the natural water. There was an in- 
 
 30 
 
29 
 
 Bulficioncy of wnter, but I liml oiioi^jli to g^t on witli Ixttwonii thn two cronkH. It wouKI 
 viiry from 25 inclieH to 70 iiiclips in ai hour. In Milk Uancii Crot'k. iit nii(lHnnunt>r, IT) or 
 20 infhoH imtunil qunntity. KIioHm w«Ht<> wut<*r hIwiij-h i'oni(>M down (HIIou'h C!ri>ok, but 
 CarHoHH wante HoniotimfH go«H into Gillon'H Creek, HonietiineH iiwiiy below, ami where it 
 goeH to I (mnnot Hay. My Hon hnn no amble land; lie haH If) acres cleared. Hin hay land 
 iH watere<l from Pavilion Creek by a ditch ; not the Ueynold'H ditch. My Hon takes no 
 water out of (JiUon's Creek. I liave not for Home yearn jmnt t»iken water direct from Pavil- 
 lion (Jreok. I did do ho from IH(!H to lH(iH. The dit<di I UHed in not abandoned. I could 
 run water in it to-morrow, if I chose, with a little cleaning. I remember a freshet on 
 Pavilion Creek, last year, July or August. Water came down with a great force on eaHt 
 pre-emption ; crops wero injure!, but not by the fre.shet ; not much damage ; the dwelling '*' 
 house can hardly be damaged nnudi, but we were inconvenienced. 
 
 From the house (Mill Kancli (Jreek) tt< the bluffs east of the Inmse is half to three- 
 quarters of a mile. I ran the 50 inches which I took last year into the dittrh. 
 
 In l8(iH I had put a box at Island Creek crossing, (!arHoii did not put a box there in 
 1875 ; remember Lawson ; do not remend)er his making a box in 1875 ; perhaps he made 
 box in 1878 ; he was at my place when ('arson and I made verV)al arraiigeincMits in 1878. 
 
 In May, 1884, there waH (JOi) inches at ditch head in Pavilion Creek ; in (lillon's C'reek 
 not more than 00 or 70 inches up at (lillon's j)lace. In Milk lianch Creek, 40 inc^hes. 
 Both run nearly dry ; one year both quite dry. The water from the two creeks was used 
 by me on about seventy acres on l)oth sides of the valley. 90 
 
 I know from my own knowledge that Chinamen were supplied by Carson in the sum- 
 mer ; cannot say as to aJiy i)articular nu)nth. In December no mining is going cm. The 
 Chinamen told me they used it for mining. I saw it running in the ditch, down towards 
 their claim ; there was no other purpose for which it could be used. I never was (h)wn at 
 the miners camp. Military (Irant occujjied up to time of confirmation, to Beaven ; cut 
 wild hay ; never cultivate<l. 
 
 I did last summer authorize the opening of Carson's ditch in order to i)ut in my box — 
 by ii;y son and Manson, my son-in-law. I did not authorize the diversion of water int<i 
 Clark's ditch. The w(.*er that I autiiorized Clark to t»ike was from Milk Ranch Creek. 
 Clark and I had no communication ; crop of wheat nearly half a mile ; about ten acres on 
 north. o(t 
 
 lie-examined — I gave leave t<i Clark early in May ; box through which I took water 
 was box at Island Creek crossing. I had first right to Milk Banch Creek, Clark second 
 right ; no doubt some of what 1 got through the box drained into Milk Ranch Creek. The 
 arrangement was between Clark ank my son. 
 
 Mr. Wilson, for DefendantClark. 
 
 Defendant Clark sworn. — Farmer, Pavilion Mountain ; pre-emption claim Ist June, 
 1874 : and 1,400 acres military grant I produce certificatB of improvement on pre-emption 
 11, 2, ()4, Crown Grant to Martley, of military grant, (defining boundaries). Mortgage 
 John Martley to 8. & L. Franklin, 1, S), (58 ; conveyance 18, 8, 70, under power of sale ; 
 deed of confirmation, 27, 8, 70. Agreement 8, 1, 83, Beaven to Clark to jmy $1000 by in- 
 stalments of $333, interest at 12 per cent. ; copy signed by B. is lost. This is a counter- 40 
 part, (admitted). Coramencetl irrigating about middle of April; commenced work 8th 
 April clearing: suffered from want of water after first week of May ; 13th May, McGee 
 came and said he was going to turn water off. I said I was rather dry ; be said he was 
 o: lered to take all he could. In the afternoon I told Martley's son I was quite dry ; that 
 Carson left me quite dry : next day I had no water, not for horses ; next afternoon, 14th, I 
 
ill 
 
 mm 
 
30 
 
 saw Arthur Martley ^gain. I took water tliat night *roin Milk Ilanch Creek and opened 
 Capt. Martley 's box and took water out of it. It is always callwl Martley 's ditch. 
 
 At this fime every drop of water was turneti out of Pavilion Creek into the ditch' 
 Carson came next day with an onler from Soues, Government Agent, warning me if I 
 took water it would be at my own risk, and plaintiff then turned it into his ditch in four 
 different places, his ditch was ov« rflowing ; there were ten or twenty inches, overflowing 
 at flume. Eliolt had in >i'e water than lie could use, the ditch was not attended to by 
 by ('arson; guttered out; making large pocjk; 17tli, Mrs. Clarke, Humphrey's, and I went 
 Martley's in tlie evening. I saw a lot of water coming down the niouiitain and vll around 
 the (irange House; I suppo.se from ditch overflowing. On 7th June, I and Eholt made jo 
 agreement, I to have 35 inches water. On the 12th of June hr, broke agreement and cut 
 water off.; 26 and 2Sth June, I with Martley went to head of ditch, and found two Siwashes 
 there, who said they were to watch the water. I paid it was mv land and my ditch, and 
 took lifty or sixty inches. In the afternoon, several of tlie adverse party were at Martley's 
 Iio.x, half-way. I said this: my land and my ditch, and so on.; we contradicted each other 
 backwards and forwards; tlie drought continued till snow, and tiien water 
 enough; 1 iiave 250 acres pre-e'uption, and lOd acres cultivated on the 
 military grant. All the 14rK( acies are fenced in. In 1884 I had 
 75 acres of barley. 20 acres of oats, 40 in hay and 5 acres of vegetables; I only got alxuit 
 one-third crop of nay; about 25 tons deficient, worth $25 a ton on farm. I claim $025 9(, 
 for loss on hay. I was damaged all over. I was 40.000 lbs of barley deflcient; say $800 
 to $400 loss on barley. I think the ditch will carry 750 inches of water. In 1884 J. 
 Eholt told uie he had 40 acres. Iloev's ranch is also watered from same ditch. I know 
 Carson sold water to ('hinanien. I at one time worked for him and heard (-arson agree 
 with a ('hinani-tu to let him have water at $15 per month. Carson all last year just took 
 sods or anything else on my land to mend up his ditch. I took up my pre-emption claim 
 1874, 5, 1, June; 187t), 200 in., 20 yards beK>w Carson's. Signed M. ()'('onnor. (Ke- 
 cord put in.) 
 
 ('rossexamined by Mr. Drake — The ditch in which I take this 2(X) inches was ready 
 made when I got the military grant. Both Carson's and this are on my lan<l. My Milk jjo 
 Ilanch ditch head is above the junction of Islaiul creek. Hay field is near the upper end 
 of my claim, and part on the island in military grant, 0.12 acres. The l)arley is on pre- 
 emption claim, two differcni flelds, on north and west of Milk Ilanch creek. Carson had 
 new lK)xes at his ditch head. I put mine there June last- I deny what (/arson said, that 
 there was an island at the ditch head; no other branch; ('arson took J>ery drop there was 
 in the creeK. I have only ojHMied (.'arson's ditch once, and oncf (Jarsoi 's dam. I was 
 several times without water after beginning of June It was my ditch, not Ca- >n«. I cm- 
 sider; it was on my land; I used it before I hud the('rown grant of the land. i;iere are 
 tiver 10(K) acre* of the military grant capable of cultivation if properly irrigated. Why 
 repair your own ditch (formerly Hratly's) instead of going at once to the ditch claimed by j,^ 
 Carson i I did not want any trouble. I had fifteen or twenty acres in 1884 more than 
 in 188;]; last year 15(H) pounds |)er acre, others over 2000 pounds yjer acre. My crop was 
 rather better in 1884 than 1883; do not remember telling N'3lson so, but it was so. That 
 was because I had hurried and got three weeks ahead of ('arton, but after he came I had 
 none. Water breaking from the upper ditch wo\dd flow inii- the lower ditch, if it got to 
 
I lli 
 
 m JiMM^ 
 
it. I lm,ke up 100 acrei last year; did not m.w, ...ily l.n.ke it up; that is .... l.oth pre- 
 euiptioiis, and military grant 50 or 00 acres. i„ iwu-^ 
 
 ^ Bv Mr Wils.m-(^arson had two hoxes, one like this and another l.ke that In 188^ 
 I Hh<.uld have had 50,000 pounds of grain nvore than I had; 20 acres gran, 1884 on .n.h- 
 arv g an , Bununer f^llowf in 1883. Mrs Clark found water overflowed .n four .hfferent 
 acefo" iitch, hesides that at the flun.e. Exan.ined overflow at flnn.e; there were U>e.-e 
 It r 2" inche ..verflowing into Milk Itanch creek. Uoey's farn. was occup.ed by Eholt 
 !l:d Irrigated from this ditl. Between 17th and 24th of May saw d.ch broken .n throe 
 or four places; crop very short of water; suffered in 1884, als., ni 1883. 
 
 To Mr Drake -1 live at Clinton and Mountain Hotel, Clinton; go once a week o 
 PaviL MomLn. As to the size of the ditch, Mrs. Clark said 0x2 or 3 feet .leep. 
 Louis Eholt, 3 feet by 15 inches. Carson, about same. 
 
 10 
 
 31 
 
i f ' " 
 
32 
 
 JUDGMENT OF SIR M. B. BEGBIE. C. J.. APRIL 22. 1885. 
 
 In 18()1 ihe Det'eiulaiit, Cai)tniii John Murtley, having a wife and several cliildren, 
 settled with hi« whole family in Pavilion Valley, B. C. A person named Reynolds had 
 already settled there and built himself a lo^ house, but he had no title whatever exfei)t 
 mere occupancy, and he was readily induced to abandon the place, whereupon the De- 
 fondant en' i, and there he and his family have ever since continued uninterrujjtedly to 
 reside and tiiiUivate the land. The earliest record entry concerning land [mMluced isal)out 
 the time when Keynolds thus moved out and the Defendant moved in. It is dated loth 
 Oct»)ber, 1801, of 1(50 acres apiece (320 acres in all) in favor of Mrs. Hartley, the wife, 
 and Miss Martley, the eldest daughter (then an infant), of the Defendant. A map is re- 
 ferred t«, but not prfxluced. On the 29tli May, 1862, there is a record of 300 acres in 
 favor of Defendant upon Pavilion Mountain. This is exjjressed to be under the provisions 
 of the [)roclamati(m of 18th March. 1861. I am not clear where these 300 acres are situ- 
 ated, as the sketch referred to in the record is nut produced in the certified co{)y produced 
 at tlie hearing. 
 
 On tlie 3d June, 1862, there is a record in favor of tlie Defendant and Artliur. his son. 
 of the pre-emi)tive right to 160 aci'es apiece (320 acres in all) on Pavilion creek, situate 
 immediately below the pre-emptive claims of Mrs. and Miss Martley. On the 9th No- 
 vember, 18(53, it is entered of record, at Lillooet. that the said Defendant and his wife and 
 two children have made the necessary improvements on their 1(50 acres each. 
 
 And on the 12th March, 1866, there is an entry called a record. Alice M. Martley, 
 Pavilion creak ; 70 acres, situate on the east bank of Pavilion creek, and extends to the 
 [joint where the trail ascends the mountain side, overhanging the Lake vide filed sketch. 
 But no sketch is prixluced. In fact, no map is produced at all which indicates that any 
 of the lands alluded to in the above records have ever been surveyed, eitiier by the office 
 of Lands and Works, or so as to be accepted by the office. In the meantime, on the 11th 
 February, 18(54. a Crown grant had issued conveying to the Defendant. John Martley. in 
 fee, a tract of 1,440 acres tm Pavilion Mimnbiin itself (in the argument and hereinafter 
 called thr> nulitary grant), the upper or tid)le land of the mountain being t<derably level 
 and separateil from the valley by an irregular, abrupt descent, almost a clifT. of several hun- 
 dred feet, on vertical height, inaccessible for hor.semen. except in one or two places, in the 
 course of three or four miles. 
 
 Part of the stmthern or southwestern boundary of tiie military grant is formed l)y tiie 
 Pavilion creek, which then, i)luiiging down tlie above-menticmed abrupt descent, enters 
 a laKe. from which it almost imme<liately emerges and flows through all the lands recorded 
 as al>ove mentioned in favor of the Defendant and the various members of iiis r'amily. 
 The creek itself, shortly afterwards, descending urecijjitjitely into Fraser Uiver. The 
 owners therefore of all, the alwve pieces of land are in a position to claim rii)arian 
 rights in the water of this creek, whatever those rights may be. Previ<msly to tlie ar- 
 rival of the Defendant, certainly in 1850, [)robably as early as 1858, there had been min- 
 ing operations on Frazer River above the mouth of Pavilion creek, in the {'onduct of 
 which the miners had constructed a ditch high up on the mountain, to bring water from 
 Pavilion creek on to their claim on the e<lge of Frazer. some thousand feet below. The 
 claim being worketl out, the ditch abandoned. It ran for about a couple of miles 
 through the land which was afterwards surveyed and conveyed to the Defendant. Vn])- 
 tain John Martley, as his military grant, but the ditch-head was alK)ve the grant. In 18(53 
 the Defendant (Martley) used this ditch for irrigation purposes, repairing it. and so 
 bringing the water into a smaller stream (Island creek or Milk creek) which runs close to 
 
 I(t 
 
 2(1 
 
 -10 
 
m 
 
 
 8P 
 
33 
 
 in 
 
 Ills ilwolling house, but wliich in thnt yenr hml dried up. This water tlie Defendant did 
 not nienrture ; he took what he wanted acnwH his own land, tliough tlie ditoli head was be- 
 yond liis own land, leading out of Pavilion creek before it reaches the niilifetry grant. 
 More than twenty years before this suit, therefore, the Defendant Miirtley began to use 
 this water at his discretion in this ditch for the purpose of irrigation on lands then, and 
 ever since, in his occupation, and he has ever since continued to draw some water from this 
 dittdi, until recently, under the circumstiinces which will |)resently be ineutlone*!. On 
 the Ist December, 1H()8, the Defendant, ('ai)tain Martley. mortgaged the militjiry grant to 
 one Franklin (registered 18th August. 18()H.) On the lOth of August, 1870, Franklin 
 ah)ne, under his iM>wer of sale, sold tti Robert lieaven, in fee ( registered IHth August. '" 
 1870.) On the '27th August. 1870, (laptnin Martley, the mortgagor, for a nominal ('onsid- 
 eration. confirmed the sale by the mortgagee to Beaven, And on the 8tli Decend)er, 
 1883, Beaven contracteil, in writing, to sell the said niilitjiry grant to the Defendant 
 Clark in fee. but the whole of the purchase money not having been yet paid, no nnuT 
 definite conveyance has been executed. None of these documents convey specifically 
 any water rights or any api)urtenant rights or i)rivileges of any sort. A right is in the 
 original Crown grant, reserved to the (^rown or its grantees to take water, but that is lini- 
 ittnl to mining purposes and does not extend to irrigation. Mr. Beaven does not appeal- 
 ever to have resided or cultivated. The Defendant ('lark, however, is a resident. He aj)- 
 |)ears to have pre-en)pted in June, 1874. the section No. 20, Oroup 1, Lillooet District ( previ- 
 ously occupied by Brady ). immediately adjacent to the western boundary of the 
 military grant, and both are now held by Clark in one bhu'k as one holding, the mili- 
 tary grant being traversed by two dit<'hes running parallel at a distance of a few yards, 
 for nearly two miles, the upi)er one being the olil mining ditch (subsequently t»iken as 
 his own by the Plaintiff Carson; the lower one, I believe, but it is not clear.) con- 
 structed by Brady for the irrigation of his (now Clark's) section 21. Clark's iiouse is 
 on that section. The [jlaintiff Eholt occupies section 20, to the west of Clark, and the 
 Plaintiff Carson occupies isection 19 to the west of Eholt. 
 
 The Defendant, C!at)tain Martley, does not appear up to 18(58 to have attemi)ted to 
 acquire by recoid any right to the water from the Pavilion creek. But v.h two other 
 snu\ll creeks, I suppose the creeks named (lillon's creek and the Island or Milk creek, 
 hut it is (piile inipossihle to know. From the so-called record is an entry (said to be 
 in favor of the defendant) in the Assistant Commissioner's Book, No. 22. Octt)ber 8. 18(58. 
 • The right to the water of the creek crossed by the trail running from the Twenty-nine 
 Mile House to the (ininge House" ( probably tJillon's creek), and another entry. "No. 28. 
 January ith. 18(57. tho right to the water of a creek running from Pavilion Mountain into 
 Pavilion Creek Valley, and running dose to Captain Martley 's house. This last is jirob- 
 ably the Island creek." 
 
 Matters were in this jjosition when the Plaintiff Carson first appears as a dainnint of i^^ 
 any rights in the locality. On the 2n<l January. 18(58, he addressed a letter recorded on the 
 same day. No. 237. by the assistant commissioner, as follows : 
 
 "I beg leave to send you a claim of 1(50 acres of land, situate on Pavilion Moun- 
 biin, opi)osite tiie twenty-six mile post, distant a few hundred yards, running from a large 
 stump on the brow of a hill to a large rock northwest, thence east to the brow of hill." 
 This is signed liy plaintiff but not adtlresso*! to anyhody. It is however tiled as a recoi-d 
 iiy tlie assistant coniniissiouer who appears further to have issued a certificate of iniprove- 
 nn.'ut (I suppose) in respect of this land on the 20th May, 18(50 ; but previously to that 
 certiticate of impnivcuicnt the I'laintiff Carsciu now contends that he acqinre(l the first 
 
 to 
 
34 
 
 mt'iit wtirt iittt Imt tlie [Mirtiew seem t<i Imve tiiki'ii, singiiliirly onidigli, soiin- littlt' nrccaii- 
 tion ill tliis matter for tlicrt- is a rucdrd of curtiticate of iiiiproveiiicnt bt-iiig granted on tlic 
 IStli .laniiary, IHT^} ; wlietlier before or after tlie diango of oeeii|>atioii and coiivevanc'e or 
 wliether hik-Ii certificate was issued to Sampson, or to Louis, or to .losepli (thv plaintiff) 
 d<H3« not ap|)ear. .loseph ii» liis evidence <ui cross-examination says "I liougiit tiie land '^ 
 years ago from my cousin Louis, 1 iiave a Crown grant -at home," i>ut wlien asked 
 if it was not merely a pre-emption reconl lie could not say, not knowing the iliffereiicc. 
 even if parol testimony were admitted as to the nature aud intent of a document in writing- 
 Hot lost aud not produced. Tuder thesi! circiimstauceH it appears very doni)tful whethei 
 the Plaintiff .loseph is entitled to claim any water under Samjisoii's record ; hut I will as- 10 
 sumefor the purpose of argument that he is entitled to whatever remedies Sainpsiui could 
 have enforced. 
 
 Neither .loseph, nor Louis, nor Sampson appear to have taken any water out of 
 Pavilion Creek in any ditch of their own. What Sampson did is not clear ; he seems to 
 have taken no steps whatever to utilize his alleged claim to water, foi' Louis says that this 
 old mining ditch which would not hold water previously he and Carson worked at, aii<l re- 
 paired and wi<lene<l and flumed, and that he always took whatever water he used by means 
 of this ditch which he calls Carson's ditch. The Plaintiff' .lo.seph Kholt uses it in the 
 same way. It is sai<l to be 10 or II uiiles long from the ditch head to the 2(5 mile post. 
 The plaintiffs claim a right under the records of Kith May, 18()M, and ItJtli May, IH7(), 2<i 
 to take 400 inches of water out of Pavilion Creek through the military grant in priority to 
 either of the defendants; previous to this suit the |)laintiffs relied wholly on their so 
 calle<l records, the defeiidauts relied mainly on an alleged aureement by Carson to 
 allow Martley priority to the extent of oO inches of which Martley was to have the abso- 
 lute disposal. Captain Martley relied also on au alleged award to tlie same effect. The 
 plaintiffs at that time treating both the verbal agreement of IHlJS, and the award of 
 1870, as merely in o|)tirative by their pleadings, however, both parties have changed 
 their ground, the plaintiffs now relying first on their records as above set out, but in the 
 alternative if those should be held defective they rely on alleged awanl, and the defend- 
 ants now treating the awar<l as mutually abandoned, if it ever were operative, and utterly ;jn 
 ilenying that the plaintiff's had in any way complie<l with the statutory provisions neces- 
 sary for obtaining |)erogative rights to an agricultural ditch. 
 
 Aud when the Plaintiffs' case was terminated the Attorney-treneral and Mr. Wilson. 
 for their respective clients, asked for a non-suit by reason of the utter inetHciency of the 
 water records. This I declined at the time, reserving to the Defendants leave to move, 
 wishincr for further time to examine the documeutary evidence, chieflv the so-called 
 "records," and indeed to be supplied with j»ro|)er evidence of their contents, the alleged 
 otHce copies being in a very unsatisfactory state also, to impiire into the (juantity of water 
 actually taken out by the Plaintiff's, and in the meantime als'i to hear the Defendants' 
 case, which resulted in establishing the facts, I think, as above stated. The owner or .(, 
 occupier of land traversed or bounded by a natural lake or a natural stream of water has 
 certain natural or comnn>n law rights to use the water so flowing, called riparian riglirs. 
 In England, by the Common Law the owner of such land has the right to conduct the 
 stream through his own land wliitlier he will, not going off his own land f(U' that purpose, 
 nor damming it back on the lands of proprietors higher u|) the stream, aud returning the 
 
35 
 
 rif^lit t. iOd iiu'lic^ (,f wiitci' out (if I'liviliou Cn-ck l)V \irtuf of tin- sccuiid of tlu' tlin-f 
 I'lilldwiiij;; tiitricH iii tlu' iiHHihfiinf coiniiiiHsionfi-s liookw at LilliHU't, l^(iH,,lHMimry ^••tli. Nu. 
 i{5 ; "Tlic rijrlit fi. the iiwe of tdO iiiclicrt of wittt'i- for flic [>iir|iosi- of iri'i^iitin^ to Ik' <li- 
 
 vi'i'ti'd from II creek on tlie (iuiitiiiit of ii iiinuiitiiin known Uh I'livilinn ut a iioint ni'Hi' 
 ;U) mile [MiHt/* 18(JH, Miiy Kith, No. 43. \ ditcli on I'lvilion Mountain comiiiu fim 
 
 lur 
 
 '^e ereek on a mountain to about oppohitt' tlie -Jtl nill jtiiHt Hiiid water <litcli for farmino 
 
 purposes on my iivnc 
 
 li I wisii to record 2()() inciies of wafer. K. H. Sanders. S. M. 
 
 1S(JH. May iMtli. No. 44, tiie ri^iit to 200 itielies of water for H^rienlturul purposes 
 to l)e diverted from a creek crossinir tlu' wa^on mad near tiie 'j!) mile post on l*a\llion 
 Mountain siuned liv tlie stiiwiidiarv maifistratc. lo 
 
 1 liave (pioted these in the exact words to show the carelessness displayecl hy the 
 plaintiff. They are all said to he the plaintiff's records. When an appli<'ation i^ made 
 for Water riohts the magistrate is |)roliahly forced to file a copy as of record he cannot at 
 the time do anything else ; of course liefore frninting any authority under the statute lie 
 would see that all the reipiirements of the statute had heen complied with Itut the whoh- 
 responsihility of doiiiir so lies on the applicant. Suhseijuently to this, on the I2tli .\ugust. 
 1*^71. the I'lainlilf Carson sent in a claim to pre-empt a fni'ther i|uantitv of T)'> acres ad- 
 joinino; his first pre-emption claim and lying appai'ently hetween that and the wagon 
 road. These I lielieve are all the records or claims of t' .• Plaintiff Carson either to land 
 
 ater jirevioiis to the comniencement of this suit, the writ in which was IssuimI ou the 2o 
 7th ,ln!v. 1HH4. 
 
 or w 
 
 Th 
 
 trohahly much to he said as to the insufiiciencv of 
 
 .f th 
 
 original 
 
 records either of Carson or of Kliolt. or the defendants. Mut as to the 
 
 d 
 
 pre-em|)tions 
 
 <if the two plaintiffs and of the Defenihmt Clark and also as to the piece of land claimed 
 or represented liy Ca|)taiii Martley called the "Corner." (^which is divided liy the i'avilion 
 Creek from the military orant and therefore cari'ies with it rinarian riiihts) any irrijrulari- 
 ty in the original descriptions or houndaries as given liy the pre-emptors themselves is 
 proliahly cured liy the authentic surveys accepted hy the Lands and Works Department. 
 .\ny sncli irregularity coiihl only have lieeii fatal as against the Crown an<l the Crown 
 
 to I 
 
 lave waivei 
 
 1 it. 
 
 or 
 
 The Plaintiff .loseph Kholt holds his land hy purchase from I^iuis Kliolt. It had lieeii 
 iginally occupie<l liy one Sampson, who moved out after a negotiation with i.oiii.s. As 
 to wiiter rights Sam|)son seems to have procured an entry at tlie loci 
 "May Kith, IS70, No. KKi, Will 
 
 irti 
 
 III omce af 
 
 fn 
 
 lani >ami)soii 
 
 I'avil 
 
 loll 
 
 Mountain, the riifht to '200 
 
 inches of water from a large creek suj)plying Carson's ditch ; the ilitch is alioiit ti miles 
 cast of Carson's farm." 
 
 Whether tliat right (if any) thus acipiired hy Sampson was conveyed hy him to l^ouis 
 Kholt does not apiiear. I'pon the present evidence I think it must he taken that it was 
 not ; it it a right or privilege I think appurtenant to some land, hut the record does not 
 »five any indioatitm of what land and the whole record is perhaps uumeaning. At any •^^ 
 rate after Louis had aliandoned or conveyed his pre-emption right in whatever land he held 
 after he ceased to have any right or interest in any land on the nioiintain, he could not 
 continue to hold this water right or privilege (if he ever 
 
 liad 
 
 any) m gross. 
 
 Louis in his evidence Huys "In January, lH~ii, Sampson wiis in possession, aftei 
 
 ome correspondence he moved out anil I moved in. there was a hill of sale." 
 
 Th 
 
A 
 
36 
 
 wiiter iiitiiitH origiiuil cliuiiiiel, uiidiininiHlutil in (jimutify or (juiility, for flu- uhc of owiuTf 
 lower iltiwii tlie HtrcHiii. Ih- liiix ulno n right to tiiki- hmiI ctniHuiiio wliut lio rwjiiin-M of tliiH 
 iiHtiiriil Hiijtply fo. lioiiHehold piirjtortt'H for tlit; uhc iiikI coiiHiniiptioii of liix fniiiily, rattU-. 
 «.Vc. JJut I Hill n(»t iiwaro of any uiitliority for nayiiig that tin; riparian hiixl owiu'r in 
 Knglaiid may uno tin; water for the purpiweH of irrigation. I r<hoiilii think that tiie point 
 iiiimt have occartionally arirten, for tlioiigh in the eiiinate of Kngiand the irrigation of a 
 whole farm, as uiKbrntood liero, in utterly unknown and undreamtof, yet proi)al>lv water 
 may often he retpiired for gardenia and other i4|)ecial carter in which it would he inipossihle 
 to comply witli the rule ahove laid tlown, viz.: that after ho uning the water of the Ktream 
 the riparian oA'iier munt return it into its chaiinol unaltered in (|uantity and (juality. The 1(» 
 fact is, that in early days (when the ('omuioii Law vas heiiig hnilt up), ,ater was in 
 Kngiand diverted from its natural channel solely with a view to einployjng it as a motive 
 {M>wei ill a mill, which does not visihly abstract from its (juantity nor injure its (juality. 
 Since the general introduction of manufactures and of wind mills, and esjieciallv steam 
 mills, water is much less in reijnest as a mcttive power, lint in eager ilemand for manu- 
 facturing purpitses. If the climate of England had resembled that of M. ('.. the ('ommon 
 Law would no tliiitlit have allowed a riparian owner to consiiiiie some portion at least in 
 assuaging the thirst of his fields as well as the thirst of his cattle. IJut I am not aware of 
 any decided ease which entitles him to irrigate, or which on the other hand denies prima 
 facie natural right to do so. Hut whatever be the extent of riparian rights here, the 2(» 
 Plaintiffs contend that the Provincial law by local statutes enables strangers entirely to 
 override them, and in fact, as to the rights of taking water from a stream for irrigation, 
 put strangers entirely on a fo(»ting with the person through whose land the stream flows. 
 That they, the Plaintiffs, have taken advantage of those local statutes, and that the De- 
 fendants have not, and so that the I'laintiffs have acquired and the Defendants have lost 
 whatever rights a rip:irian owner has in ]]. ('. I am of opinion, however, that the I'laint- 
 iffs have greatly misconstrued the words and the plain meaiiLiig of the statutes, and that 
 they have in no wise complied with the conditions thereby provided, even if they came at 
 all within the description of persons authorized to abstract water for such a purpose. The 
 claims of both the Plaintiffs must dej)end upon how far they are authorized by the statute ;{(( 
 of 18(55. That statute is (s. s. 44, 45 and 47) as follows: 
 
 It seems <piite clear that this 44tli section emjxiwers no man to take water from any 
 stream who is not already at common law in jxissession of riparian rights. It empowers 
 no man to take water from a stream which does not in some part of its course flow 
 "throU'^h" or adjacent to laud in his occupation. Land "adjacent to" a stream cannot 
 mean land several miles distant and separated from the stream by other land really adja- 
 cent to it and owne.l by either persons, the owner of land traversed by a stream or lake is 
 as to the whole bed, and of land adjacent to a lake or stream is as to half the bed, the 
 owner of the soil over which the water flows (not being a navigable river) and possibly by 
 the common law riparian rights already in part referred to, and the statute proceeds to ,^^ 
 give to such person (but to no other person) a right which he had not at Common law 
 of England, (viz.:) a right to go to any point he chooses higher up the same stream or on 
 land belonging to otlier persons and take thence water for agricultural purposes. Among 
 these irrigation though not e.xpressed would by necessary application be in this Province 
 included; tlieplirase would surely not be confined to taking the water as motive power for 
 
ih-m 
 
37 
 
 a tliri'sliing iiuu'liiiie or a grist mill. The Htatuff (!<k's not t*fatc km what land tiu' water 
 H to he utilized, hut prohahly on tiie land in ren|)eet of which the |iii\ il-'gc is iriveii. 
 h is an extension of the Conimon F-aw ri|mrian rights, lint ns it is a privilege in deroim 
 tion of the rights of other riparian owners the statute is eareful to ensure that it shall not 
 he anpiired iniprovidently or unfairly, nor is any exelusive right |H'rniitted unless the 
 authorizations of the loeal stipendiary he first ohtained ami reeonled. a judieiaul 
 sanetion, which therefore eaniiof i - given ex parte or without du' eonsideration of ihe 
 I'iglits of others after hearing tlu'iii. and any sanetion given without hearing others, or at 
 least after a full opportunity for objectors to eoine forward, would prohahly he a nullify, 
 as being dustitcte of the l^r^:t elements of a judicial act and liable therefore to he set |, 
 a^ide by a higher tribunal. .\nd the statute itself shows that this was the anxious desire 
 of the Legislature, by the minute directions concerning the notices and infornnition to be 
 given, before the nnigistrate can give any sancticm at all to the proposed works, and i.ftei- 
 applicant has obiained the saiu'tion he may not divei't any water until the sanction is re^ 
 iMirded. Every one of these direction is denii'd in the pleailings to have been complied 
 with, and there i-t n > attempt on the jiirt of the plaintiffs to show that any one of them 
 was ol)ser\ 'd. The statute expressly says that nidess they art! observed and tlie authoritv 
 
 i'ec(ir( 
 
 led 
 
 no iH'rson s 
 
 hall 1 
 
 lave any exclusive n 
 
 ight 
 
 e. the ritrht of excludinif 
 
 anot'i.'r 
 
 num. The deficiencies and obscurity of the so calleil "Records" are indeed obvious and 
 
 lai 
 
 iieutable. As t(» that of the Kith May, 18()8, it woidd prinni facie appear to be an ap .>,, 
 
 plication not to. but l>y the Stipendiary Magistrate and for his own benefit, Carson'; 
 name (hies not aj)|iear in it. It is imjiissible that any person reading this entry could 
 
 have any certainty from what cree 
 
 what mountain the ditch was proposed to be 
 
 taken or on what lan<l the water was to be ust-d. It is i-eally melancholy to reflect on the 
 indurfi'' and the endurance, and the hopes, and the years that have been ex|)ended a|)pai'- 
 erL.iy -n ; 'liaiice on what must strike any person of the commonest education as being 
 merely insensible. And yet the statute is clear enough, it may be admitted that be 
 
 ild 
 
 ermg 
 
 •laii 
 
 ses are 
 
 occasionally found in acts of i'arliament. These 
 
 are 
 
 tl 
 
 le clau>e> 
 
 lally 
 
 Ueld up as 
 
 ^yv 
 
 »es ( 
 
 )f fdl t!ie c 
 
 lausef. Ill 
 
 which excite most comment aiul are occasionii 
 every act of Parliament. 
 
 iiiit this is very fai' from being the case, our laws are addressed imt to highly e<lu- 
 cated men only, but to ;ill our people and are couched in plain common terms as a general 
 rule ; it would be difficult to express sections H and -to in clearer words, and the suliject 
 is not abstruse. I do not think it can be contended that such a "record" as the above 
 entry of Kith May. 1M()8, is even an attempt to comply with the simple, though strict 
 stiitulations of the statute ; yet the entry is relied on as if it were the record of m judicial 
 
 .'Id 
 
 a 
 
 utliorizatioii by 
 
 il authority. It is at the highest a very vague, u 
 
 •isifrned 
 
 letter of application to the magistrat-, whicli he had filed in his office as lie «as 
 bound to do imt upon which no furtlcr ste|)s have been taken; probably it was seen tli it 
 no steps could be taken. It amounts to nothing, it is like a writ issued in an action ^^ 
 
 ly an in 
 
 I'ant without the name of any issuer and never served, I)ut of course recorded by the 
 
 Ilegistr 
 
 ar in Ins ottice an< 
 
 flic 
 
 id as if the pluintifT were to treat that as a judgment of tin 
 
 court in I'ls fa- i 
 
 riie act of 1875 which ifoverns some of the alleged records is 
 
 led 
 
 little more precise than that of I8ni"5, but the adtlitional precautions there pros-i( 
 against haste or partiality are merely such as a judicial personage would advice 
 
ii)K!3l 
 
38 
 
 Hjx)ntBue(iUrtly without any expre«8 connniiiul hy ii sttituto. In 1S75 tliis pro-nigutivo 
 rij^lit is still CDnfined to ripiiriim owners of lanil with the udditioniil proviso that thoy 
 may only take water as yet 'Minrccorded" and "unapjiropriatefl" i. e. they may not 
 take any water which is already recorded or already appropriated, and of such unappro- 
 priated water tlie magistrate may oidy sanction the diversion of so luucli as may he "rea- 
 sonahly" necessary for the ptirj)oses of the applicant, and the i.otices to neighhoriug pro- 
 j)rietors or to the world in general must he given at least one m inth hefore the magistrate 
 may give his sanction to the scheme. In other respects it re-enacts the very words of the 
 act of l^i'A ; the same laudahle anxiety to safeguard the rights and »he convenience of an- 
 other class of riparian owners (viz:), creek miners is shown in the various minute provis- Id 
 ions for their pratection in the analogus case of ditches under the gold mining laws (IHtio 
 No. 14 part X.), aiul there is manifest reason and policy as well as uatiiral ecpiity in this. 
 Il is scarcely consistent with nat\iral e(jiiity that a nniu through whose laud a stream flows 
 who has j)rol)al)ly originally settled then^ hcause of this natural advantage should see liio 
 land lying arid ami |)arched while the hoimty of nature is cut off from aliove and carrit'd 
 miles away to enrich the hill sh)pes of another valley. Read (Mark's evidence (marked) 
 
 note 1 k, page +77. It is not expedient for the puhlic welfare and therefore not reasoii- 
 
 ahle that a large (piantity of water should he carried to a distance merely to effect the 
 same result which a snudler (juantity would effect in the home valley. The loss of water 
 from evaporation ahove aixl leakage helow in a ditch of 11 miles long is very great and 2fl 
 water is more economically em phiyed in pro])ortionasit is nearerthe source of sujjply. Someof 
 the largest rivers of the world exemplify this. The Kuj)hrates afterthe first 700 or 800 
 miles from its Bour.se has an enormoufi volume prohahlycpiite aH large hh Frasur liver, hut in 
 the course of the I ist 700 >r 800 miles this is entin.'ly lo.^t and it is suj)posed except in the 
 season of floods to carry very little water (if any) into the Persian (iulf. The Oxus 
 dwindles away hefo"e it reaches the sea of Aral ; numy smaller rivers now named in every 
 telegraphic dispatch e. g. the lleri, Uud and the Murghah, near Herat increases for n 
 hundred miles and then shrink and at last completely <lisapptar, and it nnvy well he that 
 the plaintiffs after taking their nominal 400 or oOO inches from Pavili(>u Creek do not dis- 
 trihute on their farms more than the (M) or 80 inches wiiich prohahly satisfy the recpiire ;;() 
 meuts of hoth the defendants, and y..i;r water may thus he very wastefully employed. The 
 Legislature nuiy well he taken to liave contemplated this result of taking water to any 
 great distance? from it.-; natural channel and to have intended to prevent it. At all events 
 they have not indicated any intention to authorize such wasteful operations. The lands 
 traver.sed or hounded hy streams are to he .served discreetly, hut owners of land in stranger' 
 valleys do not seem to have any statutory right to he served at all. It is perhaps desirahle 
 that such diversi(Ui of water from one valley to another should in proper cases and with 
 proiHJr safeguards he idlowed f'-r agricidtural |)urposes as it sometimes is f(U" mining pur- 
 poses ; much is to he said on hoth sides for and against the expediency of permitting such 
 a diversion even f(M' mining pnr[>oses, such a right is very jealously and cautiously (wr- ^o 
 mitted as will he rememhered hy those who i-ecollect the struggles and diftieulties hefore 
 the water was allowed to he taken from .lack of Cluhs (!reek where it was practically idle 
 Ni William's Creek where it was immediately and pressingly wanted. All that need he 
 said here is, that the power (h)e8 not appear to he given either in the Act of IHi]') or 1875. 
 not at all events so as to enahle the plaintiffs to acijuireany water rights from the I'avil- 
 
i!S 
 
39 
 
 ion ('reek as against the owners of land alrea<ly taken up ami occiipiod along tiiat t-rook 
 in 18(58. As against subsequent applicants for water the long period of enjoyment liy 
 the plaintiffs woidd afford a piwerful protectioi, it would hardly he said that the water 
 takei' by plaintiffs in their ditch is unoccupied or unappropriated, and the Act only \)cr- 
 inits^the recording of "unappropriated" water. 
 
 That matter however, is not now before me but only the rights of these four uersons as 
 between themselves on the 7th July, IHS-t. Now the plaintiffs cannot complain of a 
 trespass on running water of which they were in possession, there can l)e no such posses- 
 sion no such trespass, though there may be a tortious interference with the right to take 
 water along a water course or a right to use it. But the land with the two <litches was and lO 
 is Clark's, and is in (Mark's possession. The plaintiffs were in fact trespassing, appro- 
 priating (Mark's soil, both the site of the ditch, aiul the stones and earth for repairing or 
 raising its banks, and interfering with the boxes antl other constructions which every man 
 has a right to make and place on his own land, so long as he interfei*es with the lawful en- 
 joyment of ni) other min. If tho plaintiffs oinplain of a treipm on the soil over which 
 the water flowed the weakness of their possession is seen at once ; thacase of the two plaintiffs 
 awiinst the two defendants appears therefore to fail, but as between the first named plaintiff 
 and the first luuned defendiait another matter is set f )rth in the statement of claim, (viz:), 
 an alleged bitration and award of 1870. It appears that after handing to the magistrate, 
 the letter o the 10th May, 1808, and without waiting for any further ceremony, Carson 20 
 entered upoi (!aptain Hartley's military grant and took possession of the old mining ditch 
 which was the.i of course, the absolute property of (^aptain Martley, (subject to the mort- 
 gatre) and was actually used i)y him from time to time when required for additional irri- 
 gation supply in dry seasons, cnla"ged and repaired it and treated it as entirely his own, 
 en what t/r.)iinch does n )t app3.ir, lie simply took it ; for all that appears he might with 
 as much show of reason have taken and occupied Captain Martley's dwelling house. Capt. 
 Hartley immediately complainei". of the trespus bafore the migistrate at Lillo )et, from 
 whom he obtained an injunction against a continuance of the work, which by the way, shows 
 the magistrate's own notion of the sanctity of the right sicquired by Carson by virtue of 
 the memonuidum of the 10th May, 1808. On the the next day a verbal agreement be- ;^() 
 tween (Jarson aud Martley is alleged, by which the latter consented to ('arson's use of tho 
 ditch in consideration of 3100 cash to be paid by Martley, and Martley to have the right 
 to the first 50 inches of water taken into the ditch. The §100 was paid, but there being a 
 ditticulty as to the 50 inches of water the matter was referred to the arbitration of some 
 neii'hbors (the reference was not produced "de non apparentibus" who confirmed the 50 
 inches to Martley, practically to be used on any of his land either in the valley or on the 
 talile-land, he being still in possession as mortgagor of the mi'-tary grant. Martley, hav- 
 ing access !o other streams ((xillon's and the Milk llanch) as to both of which all four of 
 the parties as well the two plaintiffs as the two defendants, appear all to bo riparian owners, 
 seems to have been for some time satisfied with 30 inches, but a season of drought super- ^^^ 
 vening the usual wrangling ensued. The Defendant (^lark had in the meantime in 1874 
 entered into occupiition of his section No. 21, givup I, contiguous to the military grant, 
 and in 188H purcliased from Mr. Beaven the tee siniple of the military grant itself, so 
 that the land in his occupation then and now reHohes quite up to the middle porii.-.; '>f 
 Pavilion Cr«'ek for a mile or more and thus he has become a rl|virian owner <m that creek. 
 
•i 
 
HO 
 
 ('iij)tuin Miirtley luiviiig as Iihh been Bnid, access to tlie first claim oii (lillon's Vvwk and 
 Milit liaiicii ('reek, allowed Clark to take some of the 80 (or 50 inches) awarded l>y the 
 arbitrators. Hut to this tlie I'iaintiff Cars4Hi objected extremely ; lie seems to have 
 claimed for himself the right to take 200 inches of water and distribute it as he pleased tm 
 the lands of Eholt or others without consulting Hartley, but to deny to Martley any simi- 
 lar right to |)ermit the use of any portion of the 50 inches by Clark, antl as if Martley's 
 conduct worked a forfeiture of the whole quantity awarded liim, he cut off all Martley's 
 supply from Pavilion Creek. Whatever may have been the original binding force of the 
 award origimdly as to which I know nothing. I should be very loath to say or do any- 
 thing that might disturb it after the many years through which the award of the neigh- ](> 
 borly tribunal lia^ been practically in force ever since 2nd June, 1H70. On the contrary 
 I should endeavor to keep it in force and to carry it into effect, but the plaintiff cai- 
 scarcely be allowed now to insist on it after having violently repudiated it and in fact by 
 his repudiation caused this litigation. And its fair effect is I think that Martley may use 
 that 50 inches upon any land in his occupation, I do not think it is at all binding up<in 
 Clark although he purchased subsequently to 1870 (1874-1883) for it could not be bind- 
 ing on the mortgagee (mortgage dated December, 1803,) through whom Clark claims, the 
 subse(juent confirmation by Martley merely acknowledged that the mortgagee's exercise 
 of his power of sale was lawful and regular, ('lark therefore as a riparian owner was at 
 the commencement of this action in possession of rights entirely ir)es{KH'.tive of Martley, 20 
 or of his agreement, or of the award. The ditch was running on his own land and was his 
 not Martley's at all: Carson may have had in 1808 some rights in it as against Martley, 
 but it is hard to see what title he c )ulil sot up t.> the ditch itself as against ('lark. It re- 
 mains t</ i)e considered however, whether both the defendants are not bound by the laches, . 
 of themselves or their predecessors in title by having submitted for so long a time, ever 
 since IH08, or at least since 1870 to this servitude i. e. this right assumed by Carson 
 (even if he is to be deemed a mere intruder) to carry water for his own use across another 
 man's laud. In the first place however it generally requires an uninterrupted absolute en- 
 joyment for twenty years to establish such a servitude. In the next place this plea of 
 laflies is properly a ])Iea i. e. a sh'eld of defence, ni)t a weapon of attack; in the next jjo 
 place the right or servitude has never i)een admitted unreservedly. There have been con- 
 tinual disputes and occasional ititerruptionw of the alleged right. (Larson I think for the 
 first time alleged his full claim when he wholly cut off C/aptain Martley's supply last 
 summer. Then toi the principle on which a -;orvilud3 is claim" 1 ; that will not accord- 
 ing til the cases lie presumed after a less j)eriod than twenty years, but it cannot be pre- 
 sumed at all when the evidence shows that there has been no grant aiui that the plaintiff 
 refused to accept a grant, such a grant must be in writing. There was in 1808 a negotia- 
 tion ivitli ('.i[)t;iiM Mirtiey for agrant from him; the evidence as to this is almost wholly in 
 the Defendant Martley's viva voce evidence. Martley says he verbally agreed to sajictioi. 
 Carson's use of the ditch in consideration of $100 cash and the prior right to the use of ,,. 
 the first 50 inches of water, and that was to he reduced to writing atul signed by both 
 parties, Carson accordingly jjaid the $1(X) and that he Martley himself drew up and 
 signed such an agreement, but that Carson has never signed or accepted it, and has at 
 his convenience entirely disregarded it. In fact the Defendant Martley was atone time 
 (in 1878) ready to be satisfied with only L'O inches, but even as to this he conld not get 
 
ir ri 
 
41 
 
 it reduced to writing he still took the water however, but his supply was wholly cut <ifT 
 when he most required it. And even assuniing the agrecniont sigtic<l by Martley under 
 these circumstances to have l)een a good grant, ('arson could only as a plaintiff enforce it 
 on the terms of performing his own share of the contract which he has most strenuously 
 refused to do instituting this suit rather than submit to it, and after all it is a grant from 
 Martley only, not binding on the registered mortgagee (mortgage registered ISth August, 
 18(J8), or his vendee Mr. Beaven, (registered Abs. fee KHh September, 1870), all 
 whose rights are now vested in the Defendant Clark, and the "grant" itself is not regis- 
 tered at all. I am therefore of opinion that the plaintiffs are not entitled to tlie relief 
 claimed by them that their claim of exclusive right to the ditch in (jucstion or to take 10 
 water in it out of Pavilion Creek as against the defendants, or either of them has been 
 disproved and there must therefore on the claim be judgment for the defendants. 
 
 i3y their respective counter claims the defendants claim damages for the loss to their 
 crops, &c. Captain Martley alleges his crop to be deficient from his e.\j)ectations founded 
 on previous e.xj)erience by 11,700 lbs. of wheat worth two and one-quarter cents, net equal 
 about $250, and for loss of men's time and destruction of materials in the disputes in 
 opening and closing the ditch $55, in all for annoyance and loss $500. 
 
 Clark claims $3000, he swears to a loss i. e. a disappointment of 40,000 lbs. of bar- 
 ley at 1 cent equal $400, and 25 U»ns of hay worth $25, $026 more, eqmvl $1025 in ai 1 
 (Carson values his hay at $20 net). There may be a difference in quality. Some deli- 20 
 ciency in defendants crops in 188-1 there doubtless was, but whether under any conduct of 
 the Plaintiff Carson the defendants crops would in the very dry season have reached the 
 average of former years seems extremely improbable. Damages for annoyance, loss of 
 time I scarcely feel disjiosed to give. The defendants could have easily established their 
 rights and some interim arrangement by referring their disputes to a higher authority 
 than the local urbitratcjrs, who are n(}t armed with powers for carrying out their own 
 awards. On the other haiul, tlie operations of the Plaintiff Carson do appear to have 
 been rather high handed, although I have no doubt that he conceived himself to be acting 
 within his rights, and that he even took some pains to limit himself to his rights e. g. by 
 the box which he constructed to take away 400 inches of water at the ditch head for him- ;{() 
 self and Eholt I have no doubt he believed that trough an accurate mode of measure- 
 ment. From experiments conducted in the presence of counsel on both sides however, it 
 seems quite clear what I had suggested during the argument that this trough took more 
 than 400 inches. Mr. Drake indeed pointed out that whereas I had suggested a very large 
 over-take the excess was not more than 10 per cent, or 15 per cent. The experiments 
 were not sufficiently numerous or careful to be very conclusive as to the amount of excess. 
 I still BU8j)ect that the plaintiff's box takes considerably more than 15 per cent, beyond 
 the amount claimed, but even at the rate admittedly indicated, the plaintiff was taking 
 from 40 to 60 inches more than he ( I think) intended to take, and this was very nearly 
 the amount about which the whole series of squabble and interruptions arose, at the Tuost a{) 
 critical period of last year in which a very large quantity of water ran quite uselessly to 
 waste, still that over-take arose from a mere unintentional miscalculation of the Plaintiff 
 Carson for which he deserves no moral blame. But it is in evidence that whatever quan- 
 tity he took it was more than his ditch could carry and that is wilful waste. The water 
 at the time of direct scarcity was overflowing at his flume and overflowing in different 
 
; , 
 
 i I 
 
42 
 
 jmrtH of the ditch so tliut h largo qiiuntity wan niniiiiig (jiiitu UHclcHHly over the rlitt into 
 the valley helow. Another witness HjR'akH of eollecting wimt he coiihl of (JarsonV wante 
 water either soaking through tiie ditch or ovcrHowing and utilizing it on liis own land he- 
 low. Mow tiiirt is very had: Loss from eva|)oration |)erha])ri is in a 10 mile ditch inevita- 
 hle H Huiall amount of Iohh from leakage is |)erha|)H very ditiicult to prevent. Miit any 
 large amount of leakage can and must he prevented hy tiuming, and to omit tlumiiig in 
 such a case is wilful waste. So every case of overflowing (except from storms or accident) 
 as ohviously wilful showing improper construction or want of re|Hdr. In the course of 10 
 ov 11 miles the grade will prohahly vary where the course ic rapid and the ditch deep, it 
 may he narrow where the grade is very slight, it should l)e flumed to prevent leakage and |(l 
 the section of the tliime should Ite increased so as to carry the water safely. Waste jwr- 
 haps may deserve to entail no {)enalty if there he no {)ersun injured therehy ; hut here 
 there were to the knowledge of the plaintiff two neighboring farms in extreme want. The 
 waste as described in evidence is positively cruel. So again as to the distribution, (.'arson 
 takes this rel)undant supply aiul gives to his neighbors, allows water on the Iloey ranch; 
 sells it to Chinamen. That may not be blameworthy perhaps if the water were his own, 
 but why does Martley's similiar conduct in yielding to Olark a share of his water gratis 
 arouse such indignation and induce him eirtirely to cut off even Martley's supply of HO or 
 50 inches. There seems here some motive beyond the mere desire to protect the integri- 
 ty of the statutory provisions. The plaintiffs I think have so far made a common cause 2(i 
 that I cannot distinguish between them; they have equally taken their 200 inches apiece 
 in the same trough and ditch, wastefully as I think, and in derogation of the rights of 
 the defendants, and have ecjually sued in this action. Carson |)erhaps figures a little more 
 prominently than Clark in the physical non-judicial injunctions which were alternately im- 
 posed and removed on the defendant's supply, but I do not think that much affects their 
 liabilities ; the responsibility for the whole proceedings is jointly assumed by the plaintiffs 
 ill their action and it seems just to give judgment on the counter-claims <m both the de- 
 fendants against the plaintiffs j(»intly in favor of Hartley for $200, and in favor of Clark 
 for $500. Acting as a jury I give no reasons for assessing these precise sums, only I 
 feel persuaded on the evidence, that the defendants have suffered pecuniarly to this extent .{(( 
 at least from the acts of the plaintiffs ; had it not been for those acts, Clark could have 
 supplied himself at least concurrently witli others by means of tlie separated ditch for the 
 supply of section 21, (formerly Brady's) only Carson turned the whole body of water in- 
 to the uj)per ditch. And as between Carson and Hartley, Carooii is equally without any 
 right, unless under the agreement or understanding with Hartley in 180S, or the award 
 of 1870, and under these Hartley lias a preferential right to 50 or 30 inches of water 
 of which Carson deprived him last summer, even if at common law a riparian owner had 
 no irrigation rights and if the final words of section 44 deprived a riparian owner of all 
 riparian rights to water whatever (neither of which propositions are established) if the 
 defendants had no more rights than men who liad put in a crop upon some of the waste ... 
 land of the C'rown, any persons who without any show of title in themselves came and 
 wilfully injured that crop would be liable in damages. Out of any monies coming to 
 Hartley from Carson he must allow to the latter the sum of $100 part of the con- 
 sideration which he received on the abortive negotiation in 1868. This is all that con- 
 cerns the question before me, and I have surely said enough. But it is probable that 
 
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 6^ 
 
 23 WEST MAIN STREET 
 
 WEBSTER, NY. 14580 
 
 (716) 872-4503 
 
43 
 
 some application may be made under the recent land acts for the anthonzat.on by the 
 district official of a prerogative right to take water for agricultural purposes and it may 
 be useful to point out, first, that it is his duty not to express an arbitrary determination 
 but to exercise a judicial discretion after hearing all parties and liable to a review. 
 
 Second, That he is not empowered to give any authorization at all unless to the 
 persons pointed out by the statute nor unless the statutory preliminaries have been ob- 
 served 3rd That in the exercise of his discretion he is only to allow a reasonable quantity 
 to be taken 4th. That where one applicant has riparian rights to two streams and an- 
 other applicant only to one of these streams it may often be judicious to apply a principle 
 analogus to the equitable doctrine of marshalling assets and confine the first appli«m 10 
 (if such an arrangement be otherwise equitable) to the stream or lakes which the 2nd 
 applicant has not access. 5th. That a long ditch means great waste of water, every 
 applicant ought therefore to state the length of his proposed ditch; the smaller the qiian- 
 titv afarme. is authorized to take, the more careful he will be m conveying and d.s- 
 tributina it and every inch of water may mean a ton of flour, a matter o considera- 
 ble importance from the view of public policy, which is what a magistrate has to con- 
 sider and not private interest, unless (what very often happens) the two objects coin- 
 cide Oth. From the evidence in this case 50 or 00 inches seems a reasonable supply 
 for an ordinary farm such as Hartley's or Clark's, but it may require from 400 to 
 500 inches to ensure the delivery of those 50 or 60 inches on a farm 10 miles from 20 
 the ditch head. Therefore other things being equal between two applicants the shorter 
 ditch should be preferred, such depends on the construction of the ditch It is not 
 however clear that the statute warrants a grant of more than enough for the purposes 
 specitieJ by the applicatiou. A man has a farm for which 100 inches is a reasonable 
 supply. The statute does not authorize a grant of 1000 inches merely because the 
 farm 'is 20 miles off. 7th. It seems an unreasonable or an uncaiidid practice to seek 
 to record several hundred inches of water out of a creek which never carried more than 
 40 or 50 and <.ccasionally runs dry. And a careful judge will always watch uncandid 
 applications with great jealousy. 8th. It may be a very useful precaution to obtain full 
 Z iculars as to the volume of a creek and the nature and extent of its valley so that the 
 raSate "n form an opinion as to what is proper to be left for future applicants, bear- 
 S m td the principle that a heedless grant of wat«r may enable the grantee to mono 
 police t"e whole land. 9th. When any dit«h is proposed to be taken over the land ofjny 
 other private owner and not over the waste lands of the Crown special care ought to be 
 taken I ascertain that such owner has as opportunity of opposing, if he wish to oppose 
 tie cheme. Perhaps in all cases notice should be sent to the office of Lands and Works. 
 
 ;{(> 
 
'' 
 
 I i M 
 
44 
 
 10 
 
 DECREE 
 Pkonounced upon Motion for Judgment made the 22nd April, 1885. 
 
 IN THE SUPREME COURT OF BRITISH COLUMBIA, 
 
 Between Uobkkt ':^vks()N mid Joskph Eiioi.t, Plaintiffs, 
 
 AND 
 
 John Maktlky and Tkuman Cei.aii Ci-akk, Defendants. 
 
 (By original action.) 
 
 And Truman Celah Clark and John Martlkv, Plaintiffs. 
 
 and 
 
 RoiJKRT Carson and Joseph Eiiolt, Defendants. 
 
 (By Coiniter-Claim.) 
 
 Thursday, the lltli day of June, 1885. 
 Tliis action having been tried before me on the 19th and 20th days of March, A. D 
 1885, and no Judgment having been then pronounced, and the cause having been set down i(t 
 on motion for Judgment, and coming on to be heard on the 22nd day of April, A D. 188o, 
 Upon hearing Mr. Drake, Q. C, of counsel for Plaintiffs by original action and Defendants 
 by counter-claim, and Mr. A. E. B. Davie, Q. C, of counsel for John Martley, and Mr. 
 Wilson of counsel for Truman Celah Clark, the ther parties to this action. 
 
 This Court doth order that the injunction awarded by the order of the Honorable Mr. 
 Justice Crease, dated the 25th day of July, A. D. 1884, do stand dissolved; and this Court 
 doth declare that the Defendants by original action and Plaintiffs by counter-claim are 
 entitled to the free and uninterrupted enjoyment of the flow of the waters of .avilion 
 Creek in their accustomed bed in the same manner as they respectively enjoyed the same .^,, 
 before the Plaintiffs in this action, or either of them, interfered with such enjoyment; and 
 tliis Court doth further declare that the Defendant by original action and Plaintiff by 
 counter-claiir, Truman Celah Clark, is likewise entitled to the free and uninterruptecl en- 
 ioyment of the flow of the waters of Milk Ranch Creek in the same manner as he enjoyed 
 the same before the use and enjoyment thereof by the said Defendant John Martley. 
 
 And this Court doth order that a perpetual injunction be awarded to restrain the 
 Plaintiffs by original action and Defendants by counter-claim, and each of them their and 
 each of their servants, agents or workmen, from interrupting or interfernng with the flow 
 of the waters of the said creeks or streams, or either of them, and from permitting he samo 
 to continue unrest«red, and from permitting to continue on their or either of their land any 4(. 
 ditches, drains or works whereby the same is or may be wholly or partia ly diverted or in- 
 terfered with in such manner as in anywise to infringe on the rights of the Defendants by 
 original action and Plaintiffs by counter-claim, or either of them. 
 
 And this Court doth further order that in tlie original action judgment be entered for 
 the Defendants, with costs, to be taxed by the proper officer; and that Judgment be entered 
 for the DefendantTruman Celah Clark upon his counter-claim for five hundred dollars, with 
 costa, to be tnxe.1 by the proper ofiicer; and for the Defendant John Martley upon his 
 counter-claim for two hundred dollars, and costs, to be taxed as aforesaid^ And it is fui- 
 Zv ordered that the said John Martley do allow U> the said Plaintiff Robert Carson out 
 

 i: 
 
 \ 
 
of any monies payable to him under this judgment the sum of one hundred dollars, paitl bp 
 part consideration of the above agreement of the day of , 1868. 
 
 MATT. B. BEGBIE, C. J. 
 
 45 
 
 NOTICE OF APPEAL AND MOTION. 
 
 IN THE SUPREME COURT OF BRITISH COLUMBIA. 
 
 Between Kobkkt Cakhon and Joskimi Eiioi/r, Plaintiffs, 
 
 AND 
 
 JoiiN Makti.ky and Triman Cklaii Clark, Defendantw. 
 (By original action.) 
 
 And Triman CKi.An Ci.akk and John Martj.ky, Plaintiffs. 
 
 and 
 
 Robert Carson and Joskph Ehoi.t, Defendants. 
 
 (By Connter-Claim.) 
 
 10 
 
 20 
 
 Take notice that the Plaintiffs appeal from the Judgment for the Defendants respect- 
 ively directed to be entered herein on the 11th day of June, instant, by the Honorable the 
 Chief Justice; and further take notice that the Full Court will be moved on Monday, the 
 27tl) day of July, A. D. 1885, at 11 o'clock in the foreroon, or so soon thereafter as counsel 
 can be heard, by Mr. Drake, Q. C, of counsel for the Plaintiffs on their behalf, that the 
 said Judgment may be reversed or discharged, and that instead thereof Judgment be en- 
 tered for the Plaintiffs, or fo" a new trial, and that the costs of this appeal, and in the 'M) 
 Court below, may be paid by the Defendants to the Plaintiffs. 
 
 Yours &c 
 
 llOBERT E. JACKSON, Plaintiffs' Solicitor. 
 
 To Messrs. Davie & Pooley, Solicitors for Defendant Martley. 
 And to Messrs. Davie & Wilson, Solicitors for Defendant Clark. 
 
if 
 
 I 
 
 I I 
 
 ■ "i ■ ¥ 
 
 1 1 
 
 ii 
 
46 
 
 JUDGMENT OF THE FULL COURT. 
 
 DELIVEKKB 20'rH AOQUHT, 1885. 
 
 IN THE SUPREME COURT OF BRITISH COLUMBIA. 
 
 JJetween IIobkut (I.mjson and Joski'H Kiioi/r, I'liiiiitiiFrt, 
 
 AND 
 
 John Makti.kv and Ti41'.man ('ki.ak Ci.akk, DefendantH. 
 (l>y "I'iwinal action.) 
 
 And Tkl'man ('ki.aii Ci.akk and JonN Makti.kv, Plaintiffs. 
 
 AND 
 
 TloBKRT Carson and JosKPn Enoi.T, Defendants. 
 (I5yC(nuiter-Claini.) 
 
 The judgment of the Court was delivered by McCreight, J. ns follows: - 
 
 This was an appeal from a judgment of the learne«l Chief Justice by which he de- 
 cided that Carson and Eholt. on the accompanying pleadings and evidence, were not and 
 neither of them was entitled to recover against Hartley and Clark, or either of them, for 
 having deprived them of water; and Martley on the other hand, and Clark were entitled to 
 recover on their counter-claims respectively against Carson, for damage to crops, owing to 
 the latter having deprived them of the use of water. The facts sufficiently appear in thr> 
 judgment appealed from. The learned Chief Justice, in his judgment, refers to an incor- 
 rect copy of an application for record by Carson of a water right. May, 1868, but a correct 
 copy was handed up to us and is as follows:— 
 
 "May 16th, 1868, No. 43, Robert Carson, Pavilion Mountain, 200 "inches. 
 
 " 'A ditch on Pavilion Mountain, coming from a large creek on a " 'mountain to about 
 opposite to 26-mile post, said water ditch for " 'farming purposes on my ranch. I wisli to 
 record 200 inches of " 'water.' 
 
 (Signed) "E. H. SANDERS, 8.M." 
 
 Certified a correct copy. -F. SouEs, Govt. Agent. 
 
 m 
 
 ■211 
 
 :m> 
 
 Tliis document, when compared with two maps, also used by the the Full Court, as 
 well as by the learned Ciiief Justice, we think makes a satisfactory record and sufficiently 
 indicates the water right, which is recorded to be from Pavilion Creek, above Hartley's 
 military grant. 
 
 The learned Chief Justice likewise refers, to the conditions mentioned in ss. 44 and 45 
 of the Land Act of 1865, and to paragraph 1 of the statement of defence, denying the per- 
 formance of aft these conditions, and to the failure of the plaintiff, Carson, to prove the 
 affirmative. We think that if performances of these conditions went to the jurisdiction of the 
 Stipendiary Magistrate, proceedings might and should have been taken by prohibition before 
 he took action (under ss. 44-50, inclusive, "Land Act, 1865,") or certiorari afterwards (see *'* 
 cases cite<i, Archbold's Cr. Of. Pr. 153, 179, 180 and passim), and if the performance did 
 not go to his jurisdiction, then his action thereon must be conclusive, as there appears to 
 have been no "dispute," &c., under s. 48; and we may add that these remarks have some 
 application to the word "adjacent," which the learned Chief Justice also discusses, and 
 which expression we shall deal with presently as between Carson and Clark. 
 
47 
 
 f 
 
 As between Carson and Mnrtley, liowever, it seems to us timt tlieso qnestions are of 
 little moment, lUul that the award set out in the statement of claim and admitted by tlic 
 defence, determine.-) their mutual rights and liabilities in tlie present case. 
 
 The award is as follows: 
 
 "We have been appointed arbitrators in a cause between Captain Martley and Robert 
 Carson, respecting the right to water in a certain ditch passing through Captain Martley 's 
 farm on Pavilion Mountain, and damages that either tnay have sustained by the 
 water for irrigation in the year 18(59. 
 
 "We find that neither is entitled to damages. That while Captain Martley has a suffi- 
 cient supply of water in the two creeks passing into his farm, he shall not be entitled to any 
 water from Carson's ditch; but in case of scarcity Captain Martley sliall be entitled to half 
 the water in Qarson's ditch, the half not to exceed in any case fiifty inches, and he will be 
 entitled tt) get this for use on his farm round his house, and to t^ike it out of the ditch 
 where it joins the Island creek. Captain Martley may use these fifty 
 Mountain if he chooses. 
 
 June 2, 1870. (Signed) 
 
 1(1 
 
 inches on Pavilion 
 
 GEORGE A. KELLEY, 
 JOSEPH L. SMITH, 
 J. A. SWART." 
 
 And the questions are: Firstly, has Carson, in view of the evidence, an action against 2( » 
 Martley y and, Secondly, can Martley counter-claim against Carson succosfuUyyanl we are 
 of opinion that Carson must succeed on the first question. The second we shall deal 
 
 with presently. 
 
 It is plain from the award that Martley had no right to talce water from Carson's ditdi 
 as long as ho could getsuflicient from Gillen and Island creeks -that in case of "scarcity" 
 he could only use this water, or rather half of it, and not exceeding fifty inches, on his farm 
 round his house, and was not warranted in giving it to Clark that he was tt) take it only 
 from the junction of the ditcli with Island creek, and that if he did use the fifty inches on 
 Pavilion Mountain, he was to do so for his own agricultural purposes, not to waste it by ^ 
 returning it to Pavilion Creek or otherwise, and certainly not to give it away: and the award •'!< » 
 is to receive a liberal and sensible construction (Russel on Awards p. 491). We think the 
 evidence shows that Martley broke all, or nearly all, these stipulations, and tiiat Carson 
 sustained damage by his conduct. 
 
 We thing a'so that the award and the evidence show that Martley has no demand 
 against Carson, so far as regards the proper use by the latter of the water not exceeding 
 two hundred inches by himself from his ditch (the question of "scarcity" as used in the 
 award and the right to the fifty inches not arising), and that the counter-claim to this 
 extent must fail. The learned Chief Justice seems to base his decision against Carson on 
 this point, on the theory that "Martley had a preferential right to fifty inches," either under 
 or independent of the award, to which we cannot agree; and the further theory that Carson's *<> 
 water right and record of May, 1868, '^constituted no show of title,'" which we think is also 
 contrary to the award and the water record as shown to us. 
 
 It must be remembered, however, that the award only deals with Carson's 200 inches 
 and record, and any larger body of water abstracted by Carson's ditch involves considera- 
 tions independent of the award, and to this extent it does seem that Martley 's rii)ariau rights 
 have been invaded, in the abstract at all events. To what amount of damages that entitles 
 him, having regard to Clark's intervening resord, dated December 14, 1876, of 233 inches, 
 from Pavilion Creek, below Carson's ditch, and his (Clark's) ditch, made accordingly, we 
 shall consider hereafter, when we deal with the subject of dammages. 
 
48 
 
 2t> 
 
 Thin briiigH an to the claim of C.irHou ngninst CInrk, niul timt of (^lurk iigiiiiist (liirHoii 
 by pount<>r-clfiiiu, mid i\h tlinre lian been ik* Hwunl butweeu tlieiii, ditTereiit coiiHiileriitioiiH 
 nriso from wlint wo hiive diHcuHMod. 
 
 Clark Heems to admit, in Iuh Htatement of defen(!e, tlie regularity and HuHicieJu-y of 
 CnrHon'H record of May, A.D. 1H(>H, excejit tliat lie Hays that the written autiiority of the 
 Stipendiary MagiHtrate of the district was never obbiined. 
 
 The record by the Stipendiary Magistrate is, wo think, however, ample proof of this, 
 and the onuHsiim to raise the point under h. 4S, ''Land Act, 1865," leaver it now past ques- 
 tion. 
 
 We shall not repeat our remarks on this and similar (ji e.stions, made in the case against ' ' ' 
 Martley, but the observaticms of the learned Chief JuFtico, as to the word "adjacent," and 
 tliat '"the 44th section empowers no man to take w.i t ftoin any Htre;r,i who is not already 
 at commou law entitled to riparian rights." are x- unporfamt ^'mt. though the i)lejidings 
 rr "' • die discussion unnecesBary, we think we ought to > .press our opini<m on them as 
 (with sincere respect) we cannot ;gree with them. 
 
 If the Legislature intended to limit statutory water rights to riparian proprietors it is 
 very singular that in the various Land Acts of AD. 181)5, 1S7(), 1875, and 1884, it should 
 never once have made use of the expression "riparian" owner, althougli inspection of the 
 various sections on the subject of "water" shows many occasions on which it would natural- 
 ly have adopted that expression if applicable t(j thii objects of the Acts. Wo may .^ay that 
 the Legislature has carefully avoide 1 thosa words, although in every Act, exoejit the last, 
 it has alterel its dafinition of the chus oc parsDUs wh )m it auth )rizes tj reoard water rights. 
 
 It has, moreover, uniformly made use of the word "adjacent." which all the dicticmaries 
 to which we have had access show to be an elastic expression. Webster, tor instance, ile- 
 fines it "lying near, close or contiguous, but not actually touching, as a field adjacent tt) the 
 highway, the adjacent toresbs, &c." And he says things are "adjacent" when, they lie near 
 to each other, without actually touching, as adjacent fields, adjacent villages, &c., and fur: 
 ther ho distinguishes it from the words "adjoining" and contiguous." Again, to under- 
 stand the meaning of the legislature we should,, of course, attend to the tojjography of the 
 country with which it deals; and the greater part of British Columbia consisting of moun- 
 tftins and valleys, in which last the agricultural land chiefly lies, seems to explain why the 
 expression "adjacent" should be used without the inconvenience and uncertainty which 
 might arise if the Province had been a level or prairie country, and all the lands which 
 may be benefitted by streame or lakes in their neighbourhood may in the view <jf the legis- 
 lature have been considered as coming within (he expression "adjacent." Of course each 
 case must depend on its own circumstances, and the question does not arise on the plead- 
 ings; it it did, we think we should have no difliculty in saying that both Clark's and Car- 
 son's farms were adjacent to Pavilion Creek in some part of its course. 
 
 On referring to the evidence we "Sink the defendants are both equally to blame for 40 
 the damage which Carson has sustained; indeed, Martley seems to have acted for the bene- 
 fit and interest of Clark, and they are therefore eeually liable. Carson proves his damages 
 at $1,500 for 75 tons of hay short, the net value of which over expenses would have been 
 920 per ton, in all »1,500; also |I300 for loss of summer fallow. Total, $1,800. 
 
 There appears to have been no cross-examination as tt) those valuations, which we 
 think we must assume to be correct; and indeed they were undisputed, and we think 
 Martley and Clark are jointly and severally liable to pay Carson that amount. 
 
 With respect to Martley 's counter-claim, the learned Chief Justice awards him $200, 
 subjt'ct to a deduction which need not be dealt with; but beseems to us to do this on a 
 
 m 
 
49 
 
 supposed preferential right of Hartley to 50 inches; but we think we have shown he had 
 no right to that 50 inches; under the circumstances, as there appears to have been no 
 '•scarcity" in Gillen's and Island Creek, except that occasioned by his giving away their 
 water; and, again, he was only entitled to 50 inches in any event, after deducting Clark's 
 200 inches, and whatever Carson was entitled k> take from his ditch. 
 
 We cannot give him more than nominal damages, as an acknowledgment of liis riparian 
 rights to Pavilion Creek. To this he seems to be entitled, for Carson took for himself as 
 well as Eholt, an illegal proceeding, because we think Eholt had no right to the water as 
 the learned Chief Justice considers, and as Hartley could have maintained an action against 
 Carson for that, even if the latter had been a rii)arian owner; as for the invasion of a ripar- 
 ian right without actual damage (see judgment in Erabrey v. Owen, 6 Ex. 3(J9, and Gale 
 on Easements, 226, 232). S.) Carson, having only a recorded right which he exceeils, he 
 cannot stand in a better position than the riparian owner who, like Lim, makes use of the 
 water regardless of the rights of others. 
 
 Eholt's rights and liabilities require but little discussion. The learned Chief Justice's 
 ruling, that he had no rights, was hardly questioned. His counsel only argued that he had 
 ft statutory right by virtue of section SR of tlie Land Act, A.D. 1870, t<i which it was con- 
 clusively answered that this section was repealed by the Land Act of A.D. 1875, whereas 
 the conveyance under which he claimed, and which was silent as to water rights, was not 
 executed until A.D. 1882. It becomes unnecessary, therefore, to enquire into the nature of 
 a water privilege under the Land Acts, and whether it amounts to make more than a license 
 or personal privilege incapable of transfer. 
 
 His liability to Hartley seems to be the same as Carson's, that is for nominal damages 
 only; for Hartley can sue in either case for the invasion of a right, but this is subject to 
 the prior substantial rights of Carson and Clark. 
 
 It only remains to deal with Clark's counter-claim. On this the learned Chief Justice 
 has assessed the damages at $500 against both plaintiffs; and this, if his theory that Carson 
 had no right to the water had been correct would seem to be unobjectionable. If his view had 
 been the same as ours, that Carson was entitled to 200 inches, we think he would have given 
 probably only $250, and we therefore assess these damages at that amount. 
 
 This disposes of the various questions between the two plaintiffs and the two defen- 
 dants. 
 
 That of costs is governed by the law as laid down in Baines v. Bromley, (L. R. 6, Q. 
 B. D. (591), and the later case of re Brown, Ward v. Horse, (L. R. 28, Ch. D. 386 C. A.), 
 wher 1 Baggally, L. J,, says the plaintiff should recover from defendants the costs of action, 
 excei)t so far as they are attributable to the counter-claim, and that the defendant should 
 recover from the plaintiff the costs of the counter-claim. 
 
 In that case the plaintiffs claim and the defendant's counter-claim were both successful, 
 (and see Wilson's Judicature Acts, p. 408, ed. 1882.) This would give Carson the general 
 costs of the action and the defendants the costs of their counter-claims. Eholt, of course, 
 can recover no costs, but must pay costs as a plaintiff who has completely failed. 
 
 We think this ruling should govern the costs in the Court below, as well as the Full 
 Court. 
 
 l<t 
 
 2<i 
 
 30 
 
 40 
 
50 
 
 NOTICE OF APPEAL. 
 
 IN THE SUPREME COURT OF BRITISH COLUMBIA. 
 
 Between Koukkt Causon and Joskimi Euoi/r, Plaintiffc, 
 
 AND 
 
 John Maktlky ami Truman (^ki,au Oi,abk, Defendants. 
 
 1(» 
 
 Take notice that tlie Defendant John Hartley appeals to the Supreme Court of (Canada 
 from so mnch of the judgment of the Full Court rendered herein in favor of the Plaintiff 
 llobert (Jarson on the 20th day of Augunt last as entitles the Plaintiff Robert Carson to 
 recover against the Defendant John Hartley the sum of $1800 and costs, and also from so 
 much of the judgment as prevents the said defendant John Hartley from taking or that 
 adjudicates he has no right to take his fifty inches of water from any point ab..ve the point 
 .»f "diversion mentioned in the award, and from so much of the same judgment as prevents 
 the said John Hartley from using or adjudicates that he has no right to use the said water 
 upon land on Pavilion Hondtain belonging to him. 
 
 Dated 18th Sept., 1885. C. E POOLEY, 
 
 ^ Solicitor for John Hartley, -s" 
 
 To Hessrs. Drake, Jackson & Helmcken, Solicitors for Eobert Carson. 
 
 ORDER ALLOWING SECURITY, ETC. 
 
 IN THE SUPREME COURT OF BRITISH COLUMBIA, 
 
 Between Robert Carson and JosEi-ir Eiioi/r, Plaintiffs, 
 
 80 
 
 AND 
 
 John Hartley and Truman Cklah Clark, Defendants. 
 
 (Stamp 00 cts.) 
 
 Upon hearing Hr. Davie, Q. <)., of Counsel for the above named Defendant John 
 Hartley, and Hr. Helmcken of Counsel for the above named Plaintiff Robert Carson, and 
 upon reading the notice of appeal dated the 17th day of February, 1885, of the said 
 John Hartley, to the Supreme Court of Canada, from the judgment of the full Coui-t 
 herein rendered on the 20th day of ..ugust last, and the Certificate of the Registrar ..f 
 this Court given herein and dated this day, and Hr. Helmcken not disputing the suffi- 40 
 ciency of the security mentioned in the said certiticate, I do order that the time for giving 
 notice of appeal be extended to this day, and that the security be deemed sufficient and 
 that the said appeal be allowed. 
 
 Dated the 18th day of Septen.ber, ^J^^^^- ^^,„ j, ^^^^^^,^ ;, , 
 
i 
 
51 
 
 NOTICE OF APPEAL. 
 
 IN THE SUPREME COURT OF BRITISH COLUMBIA. 
 
 Between Kiibebt Carson and Joski-h Ehoi.t, Plaintiffs, 
 
 AND 
 
 John Hartley and Truman Celah Clark, Defendants. 
 By original action and by Connter-(^laini. 
 
 Take notice ot appeal by the above named Truman Celah Clark to the Supreme Court 
 
 of Canada, from the judgment of the Supreme Court of British Columbia, rendered herein 
 
 on the 20th day of August, A. D., 1885. 
 
 Dated August 28th, 1885. 
 
 ^ CHARLES WILSON, 
 
 Solicitor for Appellant, Truman Celah Clark, to the above named Plaintiffs and to 
 
 their Solicitors. 
 
 20 
 
 ORDER ALLOWING SECURITY, ETC. 
 
 IN THE SUPREME COURT OF BRITISH COLUMBIA. 
 
 ?)etween Robert Carson and Joseph Eholt, Plaintiffs, 
 
 AND 
 
 30 
 
 John Hartley and Truman Celah Clark, Defendants. 
 
 (Stamp 60 cts. 
 
 Upon hearing Hr. Wootton on behalf of Messrs. Davie & Wilson, Solicitors for the 
 Defendant TrumanCelah Clark,and Mr. Ilelmcken as of Counsel for the above named plaintiffs, 
 and upon reading the notice of appeal dated the 28th day of August, 1885, of the said 
 Truman Celah Clark, to the Supreme Court of Canada, from the judgment of the Full 
 Court herein rendered on the 20tli day of August last, and the Certificate of Registrar of ^^^ 
 this Court given herein and dated this day, and Mr. Helmcken not disputing the suffi- 
 ciency of the security mentioned in the said certificate, I do order that the security be 
 deemed sufficient and that the appeal be allowed. 
 
 Dated the 18th day of September, 1885. 
 
 ' ^ (Signed): MATT. B. BEGBIE, (L J. 
 
52 
 
 VI 
 
 MINUTES OF JUDGMENT. 
 
 IN THE SUPREME COURT OF BRITISH 
 
 Between Robekt Carson and Joskpu Eiioi/r, Plaintiifs, 
 
 AND 
 
 John Maetley and Truman Celah Clark, DefendaTits. 
 (By original action.) 
 
 And between the said John Maktley, Plaintiff, 
 
 AXV 
 
 The said Robert Carww and Joseph Enoi/r, Defendants. 
 (By Counter-Claini.) 
 
 And between the said Tkuman Celah Clark, Plaintiff, 
 
 AND 
 
 The said Robert Carson, Defendant. 
 (By Counter-Claim.) 
 
 10 
 
 20 
 
 Thursday, the 20th day of August, A. D. 1885. 
 
 Upon motion by way of appeal on the 31st day of July, 1885, and the 3rd day of 
 August, 1885, made unto this Court by Mr. Drake, Q. C, and Mr. Eberts of counsel for the 
 above named Plaintiffs, from the Order^of the Honorable the Chief Justice dated tne 11th 
 day of June, A. D. 1885, and upon hearing Mr. Davie, Q. C, ior the above named De- 
 fendant John Martley, and Mr. Wilson for the above named Defendant Truman Celah 
 Clark, this Court did order that the said appeal should stand for judgment, and the same 
 standing for judgment this day, this Court doth 
 
 Declare, That the judgment of the Chief Justice of the 11th day of June be reversed, and 90 
 that instead thereof the following be adjudged: 
 
 That the Plaintiff Carson do reaovnr from the defendants, jointly and severally, 
 $1800 «nth costs, except so far as such costs are attributable to the defendants' counter- 
 claims, to be taxed by the proper officer. ^ „. ,^ ^, 
 
 Let the Defendant John Martley recover against the Plaintiffs Carson and l^holt the 
 sum of one dollar, together with his costs of his conntfir-claim, to be taxed by the proper 
 
 Let the said John Martley recover his costs of action against the Plaintiff J. Eholt. 
 
 Let the Defendant Truman Celah Clark recover against both Plaintiffs Carson and 
 Eholt the sum of $250, together wiih his costs of counter-claim, to be taxed by the proper 
 officer ; and also against the Plaintiff Eholt the Defendant Clark's costs of the action. 
 
 Declare, That the record of water of the Plaintiff Carson of May 16th, 1868, is a good 
 and sufficient record, and entitles him as against both defendants to the first use of 200 
 inches of water of Pavilion Creek, to be taken through the Carson ditch, through the lands 
 of the Defendant Clark, subject to the right of the Defendant Martley to fifty inches of 
 the said water under and subject to the conditions of the award in the pleadings mentioned. 
 
 40 
 
 i 
 
53 
 
 Declare, That the Plaintiff Carson had no right to permit, and actetl illegally in 
 permitting, the Plaintiff fJholt to take water from Pavilion Creek and convey it through 
 the said ditch to the lands of the Plaintiff Joseph Eholt. 
 
 Declare, That the Defendant Hartley has only the right to use his fifty inches of 
 water for his own agricultural purposes, and that he can only take such fifty inches from 
 the junction of the ditch with Island Creek. 
 
 Let the Defendants recover against the Plaintiff Eholt their costs of this appeal, and 
 also against the Plaintiff Carson so much of the costs of this appeal as are attributable to 
 their counter-claims. 
 
 Let the Plaintiff Carson recover against the defendants his costs of this appeal, excr pt 
 in so far as they are attributable to the coanter-clairas. 
 
 Minutes of Order settled as above. (Signed) : JAMES C. PREVOST, 
 
 January 8th, 1886. Registrar. 
 
 Present-Mr. A. E. B. Davie, Q. C; for Martley; Mr. Wilson, for Clark; Messrs. Eberts 
 and Helmcken, for Plaintiffs. 
 
 10 
 
 i 
 
 NOTICE OF MOTION. 
 
 IN THE SUPREME COURT OF BRITISH 
 
 IN APPEAL BEFORE THE FULL COURT. 
 Between Kobkkt Carson and Joskpii Eiioi.t, Plaintiffs, 
 
 AND 
 
 Jou.N Maktlky and Truman Celau Clark, Defendants. 
 
 20 
 
 30 
 
 (Amended by leave of the Court.) 
 
 Take notice that this Honorable Court will be moved on Tuesday, the I2th instant, «t 
 the hour of 11 o,clock in tbe forenoon, or so soon thereafter as the counsel can be heard, 
 by counsel on behalf of the Plaintiffs, that the minutes of the judgment pronounced in this 
 action by the Full Court on the 20th day of August as given out by the Registrar, may be 
 varied or altered in the respect following, viz: By striking out so much of the minutes as 
 declares that the Plaintiff Carson had no right to permit, and acted illegally m permitting 
 the Plaintiff Eholt to take water from Pavilion Creek and convey it through the said ditch 
 to the land of the Plaintiff Joseph Eholt ; and so much as declares thatthe said Defendant 
 John Martley has only the right to use his fifty inches of water for his own agricultural 
 purposes, and that he can only take such fifty inches from the junction of the dit«h with *l' 
 Island Creek, or may be varied as the Court may allow. 
 
 Dated January 9th, A. D. 1886. .„ „ ,. -x 
 
 Your." etc., ROBERT E. JACKSON, Plaintiffs Solicitor. 
 
 To Messrs. Davie & p'ooley. Solicitors for Martley; and Charles Wilson, Esq., Solicitor 
 for Clark. 
 
54 ) 
 
 MINUTES OF JUDGMENT AS SETTLED BY THE FULL COURT. 
 
 Caraun v. Miirtloy. 
 
 l-Reverse bo much as gives Judgment for the (lefeiulftiitH (igftiiist Carson and add that 
 the Plaintiff Carson do recover from tlie defendants jointly and severally «1800, with costs 
 ot suit, (except so far as such costs are attributable to the counter-claims of the defendants), 
 to be taxed by the proper officer. 
 
 2— Eholt to pay the costs of the action so far as occasioned by his being PlaintilT. 
 
 3- Reverse so much of Judgment on Hartley's counter-claim as gives Martley a Judg- 
 ment of $200 less iSlOO paid on agreement, but substitute a Judgment for Martley for one 
 dollar nominal damages, with his costs of his counter-claim against both Plaintiffs. 
 
 4 -Reverse so much of Judgment as gives (^lark a Judgment of $500 against Carson 
 and Eholt on Clark's counter-claim, but give Judgment for $250 in favor of Clark against 
 both Plaintiffs, with costs of his counter-claim. 
 
 5— Let the defendants recover against the Plaintiff Eholt their costs of this appeal, 
 and also against the Plaintiff Carson so much of the costs of this appeal as are attributable 
 to their counter-claims. 
 
 6 -Let the Plaintiff Carson recover against the defendants Martley and Clark his costs 
 of this appeal, except in so far as they are attributable to the said defendants' counter- 
 claims. 
 
 l(t 
 
 2(1 
 
55 ) 
 
 ORDER OF THE FULL COURT ON APPEAL. 
 
 THE SUPREME COURT OF BRITISH COLUiDlA, 
 
 IN AIM'KAL JJEFOllK TIIK ITU. (orilT. 
 
 Between Uohkbt ('akson hikI .Iuhkimi Kiioi.t, riaiiitifrH, 
 
 ANll 
 
 .loiiN Mauti.kv iind Tki MAX ('ki.aii ('r.AUK, DofiMidimtx. 
 (My origiiml iu'tii>ii.) 
 
 And between the Hiiid John MAKTt.KY, I'liiintiff, 
 AMD 
 
 The HHid UoHKKT (.'arson and Johkimi Kiioi.t, DefoniliintH. 
 [By Vonutcv-VAmm.) 
 
 And between the said Tmuman Celah Clahk, Plaintiff, 
 
 AMD 
 
 The said Robert Cakhon, Defendant. 
 (By Counter-Claim.) 
 
 (Stamp «1. ) Thl-usday, the 20th day «>f August, A. D. 1885. 
 
 Upon motion by way of appeal on tlie 3l8t day of July, 1885, and the 3rd day of 
 August, 1885, made unto this Court by Mr. Drake. Q. C, and Mr. Eberts of counsel for the 
 alwve named Plaintiffs, from the Order of the Honorable the Chief Justice dated the 11th 
 day of June, A. D. 1885, and upon hearing Mr. Davie, Q. C, for the above nametl De- 
 fendant John Martley, and Mr. Wilson for the above named Truman Celaii 
 Clark, this Court did order that the said appeal should stand for judgment, and the same 
 standing for judgment this day. It is ordered 
 
 1— That so much of tlie Judgment of the Chief Justice of the 11th day of June as 
 gives Judgment for the defendants against Carson be reversed and that in lieu thereof 
 It is ordered and adjudged that the P'.mtiff Carson do recover from the defendants jointly 
 and severally the sum of eighteen hundred dollars together with his costs of suit (except 
 in so far as such costs are attributable to the counter-claims of the defendants) to be taxed 
 by the proper officer. 
 
 2— That the defendants do recover against the Plaintiff Eholt so much ot their costs of 
 action as were occasioned by reason of the said Eholt being a party Plaintiff in the said 
 action. 
 
 3— That so much of the said Judgment as awards to the defendant Martley on his 
 counter-claim damages to the amount of two hundred dollars less one hundred dollars paid 
 on agreement be reversed, and in lieu thereof it is ordered and adjudged that the defendant 
 Martley do recover against the Plaintiffs Carson and Eholt the sum of one dollar nominal 
 damages together \v 1th the costs of his counter-claim against both Plaintiffs. 
 
 10 
 
 21 • 
 
 3(» 
 
 40 
 
4^-That so much of the said Judgment as awards to the defendant Clark on his 
 counter-claim damages to the amount of five hundre;! dollars against the Plaintiffs Carscm 
 and Eholt be reversed, and in lieu thereof it is ordered and adjudged that the defendant 
 Clark do recover against the Plaintiffs Carson and Eholt the sum of two hundred and 
 fifty dollars together with his costs of his counter-claim. 
 
 5— And it is further ordered and adjudged that the defendants do recover against the 
 Plaintiff Eholt their costs of this appeal and also against the Plaintiff Carson so much of 
 their costs of this appeal as are attributable to the counter-claims of the said Hartley and 
 
 Clark. . ^ 
 
 6— And it is further ordered and adj idged that the Plaintiff Carson do recover against ^^ 
 the defendants Hartley and Clark hi<» costs of this appeal except in so far as they are 
 atti'ibutable to the counter-claims of thi said defendants Hartley and Clark. 
 by the Court 
 
 4 Seal of ) 
 ] Court, i 
 
 (Signed) 
 
 Entd. 26th January, 1886. 
 
 JAMES C. PREVOST, 
 
 Registrar Supreme Court of B. 0. 
 
 (Signed) : J. C. PFiEVOST, R. 
 
 20 
 
 80 
 
 NOTICE OF APPEAL OF JOHN MARTLEY. 
 
 IN THE SUPREME COURT OF BRITISH COLUMBIA. 
 
 Between Robkkt Carson and J(jsKPir Euoi/r, Plaintiffs, 
 
 AND 
 
 John Mauti.ky and Truman Cki-ah Clark, Defendants. 
 (By original action.) 
 
 And between the said John Martlev, Plaintiff, 
 
 AND 
 
 The said IIobkut Carson and Joskimi Eiioi.t, Defendants. 
 (By Counter-Claim.) 
 
 Take Not j(5e that the defendant by original action and Plaintiff by counter-claim John 
 Hartley appeals to the Supreme Court of Canada from the Judgment of the Full Court 
 pronounced herein on the 20th day of August, 1885, and the order made thereon and signed 40 
 and entered the '26th day of January, A. D. 1886. Dated the 27th day oi January, A. D. 
 
 1886. 
 
 CHARLES E. POOLEY, 
 
 Solicitor for tlie said John Hartley. 
 To Robert B. Jackson, Esq., Solicitor for the Plaintiffs. 
 
 56 
 
 ? 
 
 WKiM 
 
10 
 
 NOTICE OF APPEAL OF TRUMAN C. CLARK. 
 
 IN THE SUPREME COURT OF BRITISH COLUMBIA. 
 
 Between IIobickt Causon and JosErn Eiioi/r, Plaintiffs, 
 
 AND 
 
 John Martlet and Truman Celaii Clark, Defendants. 
 (By original action.) 
 
 And between the said Tbuman Celah Clark, Plaintiff, 
 
 AND 
 
 The said Kobebt Cabson, Defendant. 
 (By Counter-Claim.) 
 
 Take notice that the defendant by original action and Plaintiff by counter-claim Truman 
 Celah Clark appeals to the Supreme Court of Canada from the Judgment of the Full 
 Court pronounced herein on the 20th day of August, A. D. 1885, and the order made thereon 
 and signed and entered the 26th day of January, A. D. 1886. Dated the 27th day of Jan- 2(t 
 uary, A. D. 1886. CHARLES WILSON, 
 
 Solictior for the said Truman Celah Clark. 
 
 To Robert E. Jackson, Esq., Solictior for the Plaintiffs. 
 
 57 
 
58 
 
 ORDER SETTLING CASE ON APPEAL- 
 
 IN THE SUPREME COURT OF BRITISH COLUMBIA. 
 
 Between Robkkt Cakson and Joskimi Eiioi/r, Plaintiffs, 
 
 AND 
 
 John Maktlky and Tuuman Cklah Clark, DefendantH. 
 (By original action.) 
 
 And between the said John Makti.ey, Plaintiff, 
 
 AN1> 
 
 The said Robert CAR8t)N and Joseph Em)i/r, Defendants. 
 (By Counter-Claim.) 
 
 And between the said Tkuman Celah Clauk, Plaintiff, 
 
 20 
 
 AND 
 
 The said Robert Carson, Defendant. 
 (By Counter-Claim.) 
 
 ^^^^Tfpon the^Jpplication of the above named defendants by original action and plaintiffs 
 by counter-claim John Hartley and Truman Celah Clark for an allowance of their respect- 
 ive appeals upon their respective notices of appeal dated and served on the 27th day of 
 January, A. D. ISSfi, and for a ontiniiatloii of the existing securities for appeal, and for 
 an order settling the case on appeal, upon reading the pleadings and proceedings in the 
 cause, the said notices of appeal of the said John Martley and Trunnm Celah Clark, dated 30 
 the 27th day of January, 1886, the affidavits of service thereof and the summons issued 
 herein the 27th day of January, instant, and upon hearing the solicitors for all parties, 
 
 1 do order that so much of the said application as refers to the allowance of the ap- 
 peals on the said notices dated the said 27th day of January, 1886, and to the continuation 
 of the existing securities to such appeals cannot be entertained by this Court pending the 
 appeal now existing in the Supreme Court of Canada. 
 
 And I do further order that the Appeal Book containing the case of the said Appll- 
 ants be settled in the following form and contain the following matters, namely: 
 
 1. Short Statement of Case. 
 
 2. Statement of Claim. 40 
 
 3. Statement of Defence and Counter-Claim of Defendant Martley. 
 
 4. Statement of Defence and (Counter-Claim of Defendant Clark. 
 
 5. Statements of Reply. 
 
 6. Documentary Evidence containing: — 
 
 (a) Water Records and Imperfect Water Record. 
 
^r 
 
 ^ 
 
 
 tm 
 
59 
 
 (b) Land Itecords. 
 
 (c) Sketcli of the Premises. 
 
 (d) Mortgage, Martley to Franklin. 
 
 (e) Crown Grant to Jolin Martley. 
 
 (f ) Deed under Power of Sale, Franklin to Beaven. 
 
 (g) Confirmation Deed, Murtley to Beaven, 
 (h) Agreement, Beaven and Clark. 
 
 7. Judge's Notes at Trial. 
 
 8. Judgment of Sir M. B. Begbie, C. J. 
 
 9. Decree Pronounced upon Motion for Judgment. 10 
 
 10. Notice of Appeal and Motion to the Full Court. 
 
 11. Judgment of the Full Court. 
 
 12. Notice of Appeal to Supreme Court of Canada of John Martley. 
 18. Order allowing Martley's Appeal. 
 
 14. Notice of Appeal to Supreme Court of (Canada of Truman Celah (vlark. 
 
 15. Order allowing Clark's Appeal. 
 
 16. Ninntes of Order on Appeal to Supreme Court of B. C. as settled by Registrar. 
 
 17. Notice of Motion by Carson to vary minutes. 
 
 18. Minutes as settled by the Full Court. 
 
 19. Order of Full Court on Appeal. 20 
 
 20. Second Notice of Appeal of John Martley. 
 
 21. Second Notice of Appeal of Truman Celah Clark. 
 
 22. A copy of this Order. 
 
 23. Memorandum as to Order of Supreme Court enlarging time for tiling Case. 
 Dated the 30th day of January, A. D. 1886. 
 
 (Signed): HENRY P. PELLEW CREASE, J. 
 
 MEMORANDUM. 
 
 The Respondents' Solicitors, on the 28th day of September, 1885, consented to an 
 order enlarging the time for filing the case on appeal until the 29th day of Dec, 1885. 
 
 Tlie said consent was tiled in Court and an order extending the time for tiling the 
 case until the 29th day of December, A. D. 1885, was accordingly made.