Floating and driving timber in 19th-Century New Zealand: Judge Francis D Fenton and the doctrine of navigable streams

This paper will discuss part of the legal history of logging in New Zealand relating to the water transport of logs and timber which gave rise to the Timber Floating Act 1873 and the Timber-floating Act 1884. It considers the little-known decision by Judge FD Fenton sitting as a district judge in Pope v Appleby, which adopted an American definition of a navigable waterway to limit the rights of riparian owners to obstruct log drives; thus allowing for continued log driving in spite of the 1873 Act which had specifically excluded legal protection for driving. It argues that Appleby is evidence that New Zealand courts instrumentally modified English common law rules and precedent, or construed statutory language in a manner consistent with the 19th-century colonial consensus involving the desirability of extractive economic development in New Zealand.