WARDEN'S COURT.

Cromwell Argus, Volume III, Issue 136, 18 June 1872, Page 6

WARDEN'S COURT.

Thursday, June 13. (Before E. 11. Carew, Esq., Judge and Warden.) APPLICATIONS. Protection. —Louis Jean, ninety days for alluvial claim at Paddy's Gully (on account of inclement weather): granted.—Louis Botger, ninety days for alluvial claim at Paddy's Guily (cause, same as above) : gran led—iloyal Standard Q. M. Co., Registered, sixty days for a quartz claim No. 1 south-west of Border Chief (to test reef). Objections by J. Johnston, and application refused. Extended Claims. —Ah Shen, one acre in Bendigo Gully ; J. Geer and J. Walker, two acres in Smith's Gully ; Ah Tern and three others, four acres at Nevis : all granted. Tail Races. —Ah Tern and three others, 'N'evis ; John Halliday and another, Shepherd' 3 Creek : both granted. Water /laces. —C. Vaughan, two sluice-beads from Annisfield Creek : granted. WHITFIELD AND BENN V. THE ELIZABETH Q. M. COMPANY, REGISTERED. This case was beard on the 6th inst., and on its conclusion the Warden reserved his decision. His Worship now gave judgment as follows : " The complaint in this action alleges that the defendants have, by the negligent and careless manner in which they have worked their claim, caused tailings and sludge to be deposited upon complainants' claim and into their dam, and have so fouled and polluted the water therein as to render it unfit for use ; for which complainants seek to recover compensation in the sum of £6O storing. '•Mr Brough, for complainants, decided to go for damages to the dam and by the pollution of the water, —consequently no evidence has been given of damage to claim. The evidence shows that complainants hold a claim in Smith's Gully under a certiticate issued on 2'Jth March 1871, and which they use to store water to work a claim lower down the gully. They admit that the dam-bank extends across this gully and intercepts all water flowing down it, and that they are not holders of any registered right of water. "The defendants have a crushing-machine in a branch of Smith's Gully a short distance above I complainants' dam, and this machine is supplied with water in small part by a registered right j from the gully, but principally by water brought into the gully by Hancock and party, who sell ! the use of it first to the Star and Oak Companies : and then to the defendants, —the water being partially cleansed, after passing from the Star I and Oak machine, by means of a settling-dam | situate between the two machines. Prom the defendants' machine the water passes, charged I with silt, to settling-pits, and thence to a claim I below. It then leaves the control of the defendants and is intercepted by complainants' claim. The complainants' grievance is that the water is heavily charged with silt, which deposits in the dam and requires to be frequently cleaned out; and that, from its muddy state, the water they obtain for mining is likely to wash away tine gold. For the defendants a question of title has i been raised respecting the claim, and it is alleged ; to belling, by virtue of a certiticate of prior date, I to miners not parties to this action, and chat I defendants have their permission to make use of it. it would be extremely inconvenient, in an I action of this nature, to have to express an I opinion as to the rights of any one not a party I to the suit, and winch opinion might have to he reverse I upon a direct action in title ; and 1 find there are other questions which settle this case, i It is a common opinion that a certificate of title j for a dam gives a right to a supply of water to I the dam ; but T must hold this to be erroneous. The complainants have no right of water. It j has been prove I in evidence that all the water j they use comes from defendants' workings, ex- : cepting a small quantity—described as being ' as i much as a horse could drink ' —which flows in I the gully ; and it appears that the complainants I would be unable to work their claim but for defendants' water.

" Tiiu c.iso does not show that defendants have been negligent or careless in dealing with their tailings ; on the coutrary, they appear to have usei 1 more than ordinary care in keeping them hack. If complainants avail themselves of tail water, thev must take it with all faults.

"Judgment for defendants, with costs of wit nesscs (20s )"

Mr Colclough asked to he allowed expenses for conducting the ease for defendants. The Warden decided he hail no power to allow professional costs excepting to solicitors.