WARDEN’S COURT, CROMWELL.

Cromwell Argus, Volume III, Issue 125, 2 April 1872, Page 6

WARDEN’S COURT, CROMWELL.

Thursday, March 28. (Before. E. U. Garew, En[., Judye and 1 Vardan.) Joseph Shield v. Alfred Perky —This was an action for damages,—the plaintiff' alleging in his complaint that the defendant used and injured his tail-race on the 10th inst., for which using and injuring he claimed, as damages, £lO. Mr Wilson appeared for the plaintiff ; and Mr Brough for the defendant. Mr Wilson called the plaintiff, who stated, in examination and cross-examination, that he was the owner of a tail-race in Pipeclay Gully, about four hundred yards long, lie had let the race to some Chinese for £1 a week. On the 19th March, he observed that the tail-race had got choked with tailings. Re was sure that the tailings must have come from the defendant’s claim, as it was “possible, but very improbable,” that any other tailings could have got into the race. He knew that the defendant had used the race for four days. It would take him a fortnight to clear the race, owing to the scarcity of water. .He had seen the race scores of times before when there might have been tailings in it. He had never given Perry permission to use the race ; in fact, ho had •warned him against using it. The race was blocked up for 200 yaids, and ho considered he had suffered damage to the extent of £lO. Mr Brough urged that rho damages were only claimed for one day, and that, since there was such a small amount of water in the gully, it was incredible that such a quantity of tailings could have been washed into the tail-race as the plaintiff alleged. Shield had not been using the race himself, but was merely acting on behalf of the Chinese. There was not sufficient evidence to support the claim for damages. The Warden considered that there was clearly | ;a case to answer. The defendant was then sworn, and stated : that flie tail-race mentioned was the same that. the Warden had been asked to cancel a short] time since because it had not been used. 200 I yards of the tail-race had not been used for four | months. There was no other outlet for his tail- s ings but through this race, lie had only worked I on his claim for about two hours a day for two days, and no perceptible damage Had been done to the race. Me could clear out the whole of the tailings in it in about three hours. The claim ho worked, was the one of which ho had caused the certificate to be cancelled because the claim had not been worked. The plaintiff had a right to the claim and tail-race before he had. He could not specify tiie two days upon which he had worked his claim, as he had been shifting. Air Wilson said there must be an award of something in his client’s favour, and it ought to he the full amount claimed. If a man chose to i use what was not his, lie must pay the full; amount of damage caused by his so doing. The defendant took the claim, knowing he could not work it without the tail-race. The Warden considered it a very unsatisfactory case. The only witnesse; called, were the plaintiff and defendant, both deeply interested. Mr Brough said lie had been asked by his client to request the Warden to go out and see Iho ground, if ho could spare the time. The Warden did not think that was necessary, lie would rather take the evidence of an expert, and he thought it would be best to send one out. It was, however, thought that the expense of this would be out of proportion to the interests involved in the action. The Warden thought the plaintiff was entitled to something, but it was difficult to say how much. Both parties most likely made exaggerations in their statements. He would give judgment for half the amount claimed, £5, and costs. An Pee v. Perky.— Claim for damages for diverting the complainant’s water. Air Wilson for the plaintiff; Air Brough for defendant. After the plaintiff’had been sworn, Mr Brough endeavoured to ascertain from him if lie believed in future rewards and punishments. He was eventually understood to say that he did not, and the counsel therefore objected to him giving evidence. A long argument ensued as to whose duty it was to provide an interpreter, and also as to the necessity of a witness believing in a future state of rewards and punishments. Ultimately the Warden said lie believed if the words of the oath terminated “So help you Confucius,” the witness would consider it binding on his conscience, and that was sufficient. The oath was consequently administered to the witness in this form, with the help of a person in Court who understood the language. The facts of the case, as detailed by this witness, the defendant, Joseph Shield, and another witness, were as follows :• —The loot* in quo was the same as in the former case. A dam had been erected several years ago by one Joseph Holliday, and several others, the certificate for which was missing : and most of the miners in i’ipedlay Gully considered th ■ dam public property. The defendant, finding that tlio water did not run so as to suit his claim, though it did run through part of it, took some sods out of the dam ; and the consequence was that he got the water to run through that part of the claim where he wanted it, and in 1 irgor quantity. If the dam had not been there, the water would run where the defendant desire 1 it. Timm gh the action of the defendant, complainant had lost the work of six men for one day. The complainant had possession of the water before defendant. Mr Brough contended that the dam was a public mils mco, an I the defendant had a right to remove it. Tv, o heads of water must run down the gully in • general use. The Warden said the question resolved itself into this, —Who had the best right to the water in the dam. Ho thought Hie complainant had. If the dam was improperly there, the defendant should lake out a summons to have it removed. Judgment for complainant for £2, and costs. Batten r. Halldiay.—This was a friendly siit institute! to enable tins defendant to obtain a fresh certificate for his water-race, the old one having expired. The defeuiaut pic idol that it was through an oversight on his part that a fresh certificate bad not been taken out ; and the Warden inflicted the nominal fine of os., and 1 Is. costs : a new certificate to issue. There were sm-wri irryimv! applications, b”. f own ; 1 1 th-' 1 ugtli of our report, wo must leave them —.vr until our next issue.