APPEAL COURT

Dominion, Volume 12, Issue 173, 16 April 1919, Page 2

APPEAL COURT

PING CASE

FORFEITURE OF A WATER RACE -'

. A mining case fl'om' the Weil Coast of tho South Island came before the Appeal Court yesterday, tho parties being William .luiin M'liroy, uppu|lant, and John Vyborg, respondent. On thy bench were His Honour the Chief Justice' 1 (Sir ltolwrt Stout), Mr. Justice Kdwards, Mr. Justice -Chapman, and Mr. Justice Hoiking. Sir John I'iiidlay, K.C., with him Mr. J. A. Murdoch, of Hokitika, appeared for the appellants, and Mr. J. \v. Hanmin, of tirevmouth, with him Mr. It. P. U l.cary, for the respondent. The tacts of the ease were that John Nyberjf, K.a.vmiU'ef, of Hum, sued Wil.: Ham John M'lltoy, of Ctieyniouth, merchant. !o have a watei-riice, -No. 3816, 'Ahaura. decreed forfeited; that he be ■awarded the. costs of the suit, and that such order bo made in the premises us niav seem meet, the grounds of the suit being that the said water-race had been entirely unused for its proper purpose, unoccupied or neglected ever since the date of tho license; and thajt no water lrttd flowed in the race since the date of the license. The case was heard in the Warden's Court at Grcyniouth, and the suit was dismissed with costs against the Plaintiff. Against this decision John Nybcrg appealed to the Supremo Court en tho ground that the liability to the forfeiture of the'water-race was established in I hat it was proved thirt the said waterrace had been entirely unused for its proper purpose for a continuous period of .over fivo years prior to tho institution of the suit, and the Court erroneously held that Nyberg was a tribute, and the Court further erroneously hold that by reason or such tribute agreement fiyberg was estopped from proceeding for or obtainI ina a deoreo of forfeiture of the said water-race. Tho was heard by Mr, Justice Sim, who reversed the decision of the Warden, and nmdo a decree .of forfeiture with costs,

The Appeal Court was asked lo reverse the whole of the judgment!of the .Supreme Court, upon thj grounds that the 'said judgment was erroneous in fact and in law. and upon tho grounds that the value of the'property in dispute exceeded JC3OO. . ' The race in dispute was built'in 1872, .-.Jul was used continuously in 1911 by M'llrov. ' From' 1311 to. 11)13 it was leased to and used by .Morgan and parly, and in 1913 it wo* leased on tribute for five years to Taylor and party, of which. Ny(•ere was alleged to be a 'member. The .•funning in the race was rebuilt ill 1909. 'the license wa'« for ten heads of water from GoorgeVCreek for nllurial mining. • The hearing'"of argument 'iad .not coneluded when the Court rose, and the further hearing, will be taken to-day.