The Courts.

Alexandra Herald and Central Otago Gazette, Issue 428, 21 July 1904, Page 6

The Courts.

WAEDBN'6 COURT, ALEXANDRA.

At the sitting of the Warden** Court at Alexandra on the 11th inst, Mr Warden read the following decision in- the previously-heard ease of the Boiough of Alexandra v. Jamee Bivers, bat judgment is not to be entered up, pending a motion to rary the order for injunction to be made next court-day. •' The evidence, gen-.ru- uad particularly m tt the quant*,/ &f water available, ii conflicting ; bat »f-er a carefol coniidemtien of the whole ease, a* put before the Court, I have come to the following conolusioas: — 1. I lad that the termination of the Mt Caapbel water race, as originally granted and now held uader License 519 A, waa at or aear the poimt where that race now dischargee Into the Spearstam- race; and thai the line of race on wh fill the alip of ten or twelve chains referred to bj several witnesses has occurred, is not a part °' * oe race, and is not held under the license aforesaid; and that the race granted by the Warden and now held by Mr Rivers and the (Jorporatioa of Alexandra does not extead as far as the Speargrsss data. That the old race higher up the hill side, and now la disuse, was not the line of the original Spear* grass race. The evidence shows that for the last twenty-lve jean the intake of the BpeargaaM race baa been clots to the present intake, and there is no evidence te •how that it ever extended beyond that point, except that it is described as having its paint of commencement in a swamp. What was considered a swamp in 1869 it is new difficult to cay. I think it most likely that when it was granted, thirty-fobt yean ■go, It was intended to carry it farther ap 12m creek, probably beyond the old Speargiass dam, but if a race was oat there no trace of it now remain*, Bat wherever the original point of commencement may have been, I have no doubt that, when the Mt Campbell race wa* applied for, the intake was at or aaar the present intake, and that Hut was the point indicated and described ia the hoeeae as "the head of the water race at the western branch of the Gibraltar Creek." 2 llnd that Campbell and Son (Limited) held a superior right out of Mt Campbell Creek for four sluice heads, commencing lower down the creek, from Ist December to list If <y in each year (inclusive), and that, consequently, James Rivers has no right dating that period to lift any water out of Sjjgt creek untU more than four heads are Sowing down it. That there is an order of a previous warden of the district still in force, dating from the 22nd June, 1891, w - --raby, inter alia, two -Juice heads of ..' r are directed to-be allowed to flow in

«• joi of the Speargrass race for general ose from Decamber to May, inclusive. This " 'order has never, so fax at tee evidence /Sunn, been varied or : cancelled t and in my opinion is still operative. ' ' 3. Though a large torn ef money has been ~'' spent upon their .repair and up-keep, and an experienced caretaker has been constantly employed upon them, the races do not appear to have been, daring .-the period complained Oh hi tborooch repair ( and water was sUflwed to escape through holes and leaka in the race. Some of these could have been repaired, and the loss of water thns pootekprf might haTe been prevented, The evidence for the defence.on these points wee mainly that of employees whose duty 11 ii, or bee been, to see to the proper maintenance and repair ef the races. Apart from the natural Inclination each witnesses weeld have to regard metiers from a point of Ti4« favourable to themselves, their evidence appears to me to have been fairly and conscientiously given; bnt in the face of the strong and positive evidence of the witnesses called by the plaintiff, several of them men of long experience in such matters and well qualified to pronounce an opinion, I cannot regard the races as being in complete order. The evidence of Mr Matthews, no doubt, strongly supports the evidence of the defendant's other witnesses, bat I do not think it sufficient to outweigh the evidence of the plaintiff's witnesses, and it has the disadvantage of being founded on on inspection made after the period alluded to in the statement of claim. The race is, so doubt, one in which it is difficult to prevent leakage, and it is not possible with the means at hand to prevent the escape of a considerable quantity of water by percolation and otherwise, but judging by the evidence there were leaks in the race whica ■gjenld have been repaired and the loss of enter through them prevented. 4V I find that taking the period as a whole there was nob enough water in the Mt Campbell, Middle Branch, and Speargrass effects to supply the races with sufficient water to constantly deliver, day by day, a fin alalce head at the Borough intake; bat I also find that water might have been sup plied to the Borough on occasions when cone was delivered. Mo water was brought la'from Mt Campbell Creek until the 21st March, although it is shown that on the ini and 10th March a large quantity of water estimated by the witnesses who saw it at from ten to twelve heads, were running past the intake; and several witnesses have deposed to the fact that oa the 7th April from eaten to ten heads were flawing in the Mt' Caapbeil Oreek, of which four was being lifted by the race, and. yet, according to Mr Travis, who took daily observations,' ho crater reaohed the Borough intake that day, and only about a qTarter of a head on the Bth. while with the exception of half an feouz on the 10th, there was no water again i»tl! the list The supply of water in Mt Oasnubell Oreek appears to have been, during the period covered by the statement of c'a'm, very intermittent and irregular in' t '.f; for on the 7th April when certain Ou < *{ '■ prs end others visited the creek they itt *c ironi seven to ten heads of water in it» whereas Edward Terry and George Campbell agree in joying that on the Sth there were' only two heads flowing in the creek. James Houlihan, iyho-was on Galloway Btati<m from 23rd of January to the beginning of March, swears that during that time there was not more than a head cjE water flowing in Campbell creek above \m junction with Sgeargrass creek—a consAderable distance below Rivera's race—and C«t on the 3e4 °f Marchj Mr Young and Mr inu^ 1 fouad ae * le « thaa |en beads towing past the intake of the race. With the exception of visits paid by Messrs foang and Anderson, by Mr Young alone on the sth April, by the Councillors and Ctbers on the 7th April, and by Mr Terry on the Bth and 9th April, we have no evidence «f the quantity of water flowing into Mt. Campbell creek above the intake of the tace except that of Jackson and Campbell; pod according to their statement the greatest quantity of water they saw in the creek •was when it was turned into the race on the fist March. Campbell says on that occa-

Firstly.—The Speargrass race is not in good repair and condition, as there are repairable leaks through which water ia escaping. Secondly.—Though generally Impossible, under the conditions referred to; for him to do so, the defendant did not when he might have done so, supply a sluice head of water at the Borough intake. [Owing to pressure on our space we are obliged to hold over the remaining portion of the judgment till next issue].

iion there were not more than four heads— says there were four op five. After it rapidly declined to two. All witnesses Agree that there was very little water ranuicg in the middle creek. Mr Terry ■ays not more than would run through four ene-iccb pipes. There does not appear at toy time to have ijeen a head of water Cowlog into the apeargrass dam from the Speargr&as creek—certainly never two heads. In ti»w of theae facts, and of the fact that OompbeU and Son, Limited, have a superior tight to four heads of water from the Mt. C .mpbell creek, and that the or<ler of the IVarden, a 1 ready referred to, provides that two hefc <* <*f wawr shall be allowed to aow

down the Speargrass creek from December to May inclusive,’ it appears to me that it was out of Mr River’s power, without the derogation of other rights, to supply the Borough with water at all during the greater part of the time (see the United Hercules Hydraulic Sluicing 00. v. the Roxburgh Amalgamated Mining and Sluicing (Jo, per a Williams J„ 7th July, 1891—not reported). § Although there is no direct evidence of it. it seems more than probable from the evidence of Campbell, Jackson and Houlihan that except occasionally there was not before the 21st March enough water in the Mt Campbell creek to supply the superior right of Campbell and Son, Limited. The Corporation is a co-partner with Mr Rivera, and its teath share is subject to the same terms and conditions as the rest of o race. The undertaking by Mr Rivers to supply the corporation constantly with a bead of pure water mult be construed as subject to the condition* on which he holds his race and to thejWisibilHyof a natural failure of supply. His undertaking is only to supply wnter out of his own race. It through no fault or neglect of h, * o '7 n * h^ e is under the conditions on which ha holds hi* title an insufficient natural supply available for his right he cannot be hold liable in damages because he cannot supply what ho has not got. Although, as I have said, 1 think it not possible with the restrictions upon Mr Rivers's races and the small quantity of water actually available at Ibis season of the you to supply constantly a head of water at the Borough Intake, I consider it might be possible in ordinary aeasou by bringing the races np to the utmost efficiency and by a careful and systematic management and use of the damn for conserving water to give a fairly constant, though redscod. supply at the Borough reservoir if Mr Rivers could be compelled to repair the broken race near the Speargras* dam. and to turn into that dam and conserve there the water ol theMt Campbell race. I am of opinion, however, that Mr Rivers cannot beso compelled. The Corporation acquired an interest from Hr Rivers in these races as they stood. The race according to the evidence terminated before reaching the ead of the slip furthest removed from the dam. If this slip is not a portion of the water race Mr Rivers is under no obligation to repair it. nor can he if he confines himself to a ligitimate we of his right discharge the water from the race into the dam. Then is no express covenant of the deed compelling him to do so, nor in my opinion can such a covenant be implied from the language of the contract. The only words referring to the me to which the dam is to be put are in clause 7of the deed of assignment: •• The assignor shall forthwith commence the erection of a dam below the present dam in the Speargrass Flat in order to improve the reliability of the water supply.” The manner in which the reliability of the water supply was to be improved would necessarily be limited to the extent to which under the license granted to him Mr Rivera could do so. The dam serves the purpose of conserving the water collected from the country above it. and for all that appears in the deed of assignment to the contrary that may have been the object of bnilding the dam. I do not think the small amount of sluicing done by the defendant during this period reduced the supply of water available for the Borough, as the water was overflowing from the dam at the time. The shortage of water in the Borough guage-box observed - on these occasions must have been due to the insufficient supply allowed, to flow from the dam after the water used for the sluicing haM been cut off. From a consideration of the evidence as a whole, 1 am of opinion that a breach of the covenants entered into by Ur Biyers has been committed inasmuch as