The Courts.

Alexandra Herald and Central Otago Gazette, Issue 356, 5 March 1903, Page 5

The Courts.

WARDENS' COURT, OPHIR. Thursday, February 26th, 1903. (Before J. M'Ennis, Esq., Warden.) LAIDLAW AND CRAWFORD V. W. WILSON. In this previously-heard case His Worship now gave judgment as follows '. — " The plaintiffs in this action are the lessees from the Crown of Run 223, known as Matakanui Run, and the defendant is a miner with several water-race rights, running in one channel through a portion of the said run. The statement of claim originally contained allegations against the titles of these water races, and claimed certain relief; it also contained allegations respecting damage and injury sustained by the plaintiffs through the action of the defendant in widening and deepening the race, and carrying, therein a quantity of water in excess of the quantity he was authorised to carry (12 heads), and that in consequence thereof 144 of plaintiffs' sheep, valued at £72, were drowned in defendant's water-race. To prevent further damage the plaintiffs aver that they had to employ a man to patrol the said race for 120 days at 8s per day, amounting to £40, and had also to erect a fence (at a cost of £80) to protect their sheep from being drowned in the said race. The total damages claimed amount to £192. This case was before the Court on 9th December last, when the solicitors for the parties informed the Court that they had had a conference with a view to settling the action, but failed in a total settlement. They had agreed, however, that the case was to be narrowed down to the question of damages. The case was then adjourned to January 29th, and after the case was closed, on January 30th, judgment was reserved. — These water races of defendant's are very old titles, and on none of them is the debth or breadth stated. Mr Laidlaw, one of the plaintiffs, and his witnesses James Woods, James Little, and James Meikle — swore that the race was widened and deepened between February and September, 1901. Mr Laidlaw took several measurements of the race, the average width being 5ft 4 1/4 inches. All these witnesses say that the race was not nearly so wide previous to the cleaning out in 1901, and that no sheep were drowned until after this cleaning out of the race also that there was a far greater quantity of water than 12 heads being carried in the race. This is not disputed. Mr Thos. Donnelly measured the water flowing in the race, and he states that there were 22 heads running at the time he measured it, and that the race was not full. Mr Samuel Templeton also measured the water, and he gives the quantity as 18 heads, with the race not full. Mr John Ewing also measured the water near the outlet and found 12 heads, but as some of the water escaped at Rushy Flat, estimated at four heads, he makes the total quantity 16 heads. Mr Ewing not having taken the measurements where all the water was flowing — only measuring some and estimating the rest — l prefer to take the measurements of the other two witnesses. Taking the average of their measurements gives 20 heads, with the race not full. There is a conflict of evidence with respect to the widening of the race. Defendant admitted that it looked wider after being trimmed, and I am inclined to the belief that it was widened. However, I do not consider that even if the race had been widened, as alleged, it would have caused the drowning of the sheep, provided he had only carried in his race the 12 heads of water that he was by his licenses authorised to carry. I I do consider that the drowning of the plaintiffs' sheep was caused by the excessive quantity of water carried in the said race, and I find that the plaintiffs are entitled to recover from the defendant damages on account of the 32 sheep which were first found drowned. But with regard to the remainder of the sheep drowned in defendant's race, I consider that the plaintiffs are guilty of contributory negligence in persisting in depasturing on Lauder Flat, through which the race runs, Merino hoggets (which according to plaintiff's own witnesses are the most likely class of sheep te get into trouble where water races are concerned, owing to their being a small kind of sheep, and to the fact that wool grows over the eyes causing blindness or partial blindness. Plaintiff's head shepherd, James Meikle, admitted in his evidence that under the existing circumstances, it was not prudent to keep Merino hoggets on this part of the run. With regard to the cost of erecting the fence, there has been no agreement with the defendant, who has no property in the fence. From the evidence all through the case it appears to me that had plaintiff removed the hoggets off this portion of the run when the first lot of sheep were drowned, and put a stronger class of sheep in their stead, there would have been no further loss from drowning and no occasion for the fence, and no occasion for putting on a man to patrol. These two items of the claim are, therefore, disallowed. Judgment will be given for plaintiff, for the value of 32 sheep drowned at 10s each, less value of skins and fleeces at 1s 8d each, £13 6s 8d ; court costs, £1 7s; witnesses' expenses, £3 15s ; sslicitors' fees, £5 5s ; total, £23 13s 8d. Mr C. C. Hutton appeared for plaintiffs, and Mr Kirk (with him Mr Cutten) for defendant. A. KINNEY v. J. PITCHES. In this previously heard case the Magistrate delivered judgment as

follows : — This is an information laid under " The Stock Act 1898," section 50charging the defendant that he, being a small grazing runholder residing at Ophir, within the space of six months last past, to wit : in or about the first week of December, 1902, at his run 244H, Tiger Hill Survey District, did muster his stock for the purpose of earmarking and shearing the same, without giving due notice thereof before yarding said stock to the said Alexander Kinney, the occupier of the adjoining lands, namely Runs 223G and 223F, of of his intention so to yard his stock. Defendant admits that he did muster, &c, and did not notify the informant as alleged, but denied that his land was adjoining that of the informant as the river Manuherikia and reservations of a chain in width on each side of the river, lay between their respective lands and in consequence thereof were not adjoining lands. On the matter of reservations along the banks of the river the title and plan of runs put in as evidence show that there are such reservations. With regard to the question raised by Mr Hutton that the lands in question are not " adjoining lands " within the meaning of said Act and section, I consider that, taking the ordinary meaning of the words, these lands are not adjoining lands, but Henry Scott, a neighbouring runholder, gives evidence to the effect that sheep can cross the river alluded to Mr Kinney, the informant, swears that sheep can cross the river, unless in times of a big flood, that they cross of own motion, and also when driven. The evidence of the defendant, Mr Pitches, is to the effect that sheep would be drowned if they attempted to cross the said river. Taking Mr Scott's evidence as that of an independent and impartial witness, I must conclude that sheep can cross the river Manuherikia between the runs of the informant and the defendant, and having come to that conclusion, is it not in conformity with the principles of the law laid down in " Interpretation Act 1888" section 5 sub-section 7, which reads as follows :— "Every Act and every " provision or enactment thereof shall be deemed remedial, whether its immediate purport is to direct the doing of anything which Parliament deems to be for the public good, or to prevent or punish the doing of anything which it deems contrary to the public good, and shall accordingly receive such fair, large and liberal construction and interpretation as will best insure the attainment of the object of the act and of such provision or enactment according to its true " intent, meaning and spirt'" that notwithstanding the ordinary-meaning of the words "adjoining land" that for the purposes meaning and spirit of the act and section under which the information is laid, the lands are adjoining lands—and I do so decice — but as this is the first offence coming before me a nominal penalty will meet the case. The defendant is therefore convicted and fined 5s, and costs £4 16s 3d.

A charge against Mrs Sinclair, licensee of the Shamrock Hotel, for having exposed liquor for sale after hours, was dismissed. WARDEN'S COURT, ALEXANDRA. The following business is set down for hearing at the Warden's Court, Alexandra, on Monday next, 9th inst. :— ADJOURNED FROM PREVIOUS COURTS. Alexandra Coal Mining Co, Ltd : Coal lease, 61 acres, near Alexandra. Coronation Gold Dredging Co, Ltd : Special dredging ciaim, 99a Or 26p, being sections 75, block 8, and 46 block 9, Leaning Rock. James Brown : Water race from Stockyard Gully. James Brown, residence site, Graveyard Gully, Galloway, 1 acre. Jeremiah Drummey, 6 months' protection, special dredging claim 455 A. James Norton, residence site 1 acre, Manuherikia Valley, 1 mile above Alexandra. Henry Scott, water race from Manuherikia River. A Williamson, special dredging claim, 100 acres Manuherikia River and beaches. Geo M Hunt, residence site, 1/2 acre town of Alexandra. NEW APPLICATIONS. W Noble and another, water race at Poverty Beach. Clyde Dredging Co, Ltd, special dredging claim, 55 acres, being part of section 47, block 1, Fraser. Wm C Nicholson, extended alluvial claim, 5 acres, on Alexandra Borough Boundary. Q Campbell, jun, exchange of title for water race No 505A. E Appleton, special alluvial claim, 75 acres at Galloway. E Appleton, special site, 5 acres on Galloway, Golden Link Co, surrender absolutely of special dredging claim 232A. L Ryan, surrender absolutely of special dredging claim 595R. Wm Holihan, surrender absolutely of extended alluvial claim 439A. Last Chance Co, amalgamation of special alluvial claims, No's 609A, 231A and 144A. John Gordon, surrender absolutely of special dredging claim 494A. James Norton, surrender absolutely of extended alluvial claim 483A. WARDEN'S COURT, CLYDE. The following business is set down for hearing at the Warden's Court on Saturday next, 7th inst : Andrew Wilson, water race, 30 chains in length, diverting 1 head from Springvale Creek. James [McArthur] special dredging claim, 41a 3r 16p, being sections 94, block 1, and 143, block 2, Leaning

Rock. Monte Christo Gold Dredging Co, Ltd, special dredging claim, 90 acres on the Molyneux River, 5 miles above Clyde. John Lynn, water race, 2 heads from Leaning Rock Creek, below the main road. George Field, tail race at Blackman's Gully. Fred [McCarthy], tail race at Blackman's Gully. Monte Christo Gold Dredging Co, Surrender absolutely of special dredging claims No's 347C and 414C and extended claims No's 1501 and 59155.