WARDEN’S COURT.

Cromwell Argus, Volume III, Issue 143, 6 August 1872, Page 6

WARDEN’S COURT.

Thursday, August 1. f ßefore E. H. Carew, Esq. , Judge and Warden.) C. MAHER V. PATRICK M'KENNA. The complainant sought to recover from defendant the sum of £lO as damages for unlawful interference with a registered residence area at Bendigo. Mr F. J. Wilson for defendant. The Warden, after hearing the evidence, gave a verdict for 205., together with Bs. Court costs. BARK CHUNG V. W. AND G. WILTON. This was an action brought in order to compel the defendants to allow two sluice-heads of water to flow dowu the natural channel of Dead Horse Gully (Luggate) for general use. Mr F. J. Wilson, who represented the complainant, explained that the real object of his •client was not to deprive defendants of the use of the water, but to compel them to take it with all faults. The Warden, after hearing the evidence adduced on either side, gave the following judgment :—“I do not think a sufficient case has been made out to require that I should make the order sought for. The defendants have been in possession of the water from the gully for the past seven years, and should only be disturbed upon a strong case. The action is really brought by the holder of an inferior right for the purpose of supplanting the holders of the superior right; and it is not exclusively the water which they are seeking for, but a right to pollute the water before the defendants receive it into their race, —and Ido not consider that to be the ‘ general use’ contemp’ated by the Regulations. Case dismissed, with costs of one witness, 355.” EVAN JOSES AND OTHERS V. DANIEL MOORE. The complaint in this case alleged that the defendant had unlawfully interfered with a certain quartz-claim situate at Carrick Range, and prayed that defendant be ordered to desist from further interference, and to pay £lO damages and costs of suit. Mr Wilson, for defendant, pleaded that under section 108 of the Regulations bis client was previously in lawful occupation of the ground in dispute ; and ; failing to establish that plea, his ■client pleaded not guilty. Mr Allanby, for complainants, stetad that the claim referred to in the complaint adjoined the Black Horse—a distinct claim. It was marked off by the comp'ainants on the {Rh of July, and by the defendant on the 15th. The defendant had, in fact, simply attempted to jump the claim. Three of the complainants—Evan Jones, Wm. Griffiths, and Thomas Jones—gave evidence as to the manner in which they had marked out the ground, and as to the extent of work done by them on the claim. The miners’ rights held by complainants (six) were produced and found to be correct. Mr Wilson, for the defence, contended—first, that no evidence had been adduced which would tend to prove that the defendant had interfered with the ground; and secondly, that the majority of complainants being at work for wages in other claims, there was no proof that they had a right to occupy the claim in dispute, their rights having become vested in their emp’oyers,—or, in other words, that their miners’ rights were only Applicable to their servitude. The Warden said that a miner could hold a miner’s right for one claim, and work for some one else in another. The owner of a claim could hold a sufficient number of miners’ rights to represent the ground in his occupation. At Mr Wilson’s request, however, he would make a note of the point raised. For the defence, H. W. Smythies, surveyor, and Daniel Moore, the defendant, gave evidence. The latter stated that he pegged out the claim (six men’s ground) for himself and his mates— R. Kidd, H. Summers, Eugene Malharbe, David Elliott, and John Birnie. His object w's to preserve his old title to the ground,—the pegs erected by Summers and party (whose interest had been transferred to defendant) having been knocked down. He produced transfers of shares from Summers and three others to himself, and also four miners’ rights belonging to the transferors. Witness held two miners’ rights in his own name on the date of transfer (25th June); and he held no other mining property under those rights, having given it up to his mates. He produeed one of the rights, but was unable to say whether the other had expired or not. The Warden, in questioning the defendant as to his alleged partners in the claim in dispute, elicited the admission that Moore himself was the only one actually interested in the decision of the present case. It also appeared that he was part owner of an extended claim in Adams’s Gully, and that his share in that claim had never been transferred to any one, so that in point of fact it was still his property. At this stage Mr Wilson, addressing the Warden, said that certain facts having come to light, in connection with the case, of which he hail no previous knowledge, he must take the extreme course of withdrawing irom the case, and allowing the defendant to conduct it for himself. Mr Allauby addressed the Court on behalf of complainants. The Warden, in giving judgment, said the evidence showed that the complainants had never properly marked out the claim ; therefore they were never in proper possession of it. With regard to the defendant, he had been holding six men’s ground for himself, and at the same time held an extended claim by virtue of his miner s right. Under these circumstances, the case would be dismissed—without costs. APPLICATIONS. Protection. —Alf. M‘Minn was granted thirty days’ for an alluvial clahn at Kawarau Gorge.— Wm. Smith and live others, sixty days, quartz claim at head of Adams's Gully (to test reef): granted on the usual condition.—Evan Jones and live others, sixty days, quartz claim No. 1 east of Star of the East : adjourned for fourteen days, the claim being meanwhile protected without the usual proviso, and the applicants then to produce evidence of the c'aim being properly pegged. Water Races. —Three applications by J. Perriam and two others were withdrawn, in order to allow of their being amended.