DISTRICT COURT, CLYDE.

Dunstan Times, Issue 334, 18 September 1868, Page 2

DISTRICT COURT, CLYDE.

M»SDAY, SKrrEMBBR 11. (Before W. Gray, Esq., Judge of District Court) AITIJAL CASE. r. Vinton and other?, appellants, v. S. Gordon and others, respondents. Mr, W. Bohning appeared (by consent) for the appellants ami Mr. 11. F. Ba'ger for th; respondents. A certifieil copy of the Warden's decision appealed against having boon handed in and aeceptel by his Honor, Mr. Bohning, in stating h't< case, said that the present suit was an appeal against a decision of Mr. Warden Bobinson, given at Black's on th'i 21atof August, which decision resulted in the cancelling of the rig'it to a head of water at Gerrtmn-bii', hell under a certificate from Mr. Warden Hicksoa, with certain reservations. In support of his c;isa Mr. Bohning said it would be neoossary, by way of explr.uatinn, to ref*r back to (he. (late of the original grant of the waterright in dispute, December 9, 1881. On that date two whors, named Ciaue-ey and M'Dycr, obtained a ccrtiSca'a to diver!, water f;.r raining pnrpo6?.i. 8hor!ly after tho granting of tin certificate a petition from a number of miners w,w presented to tho Warden, praying that tho right should be cancelled. The Warden, in ord?r to make tho proceedings effective, grantcla Bnnvmons against Clancey and M 'Dyer for diverting from its natural course water that was. required for general purposes. On hearing tho case the certificate was cancelled, with "certain" reservations, vhieh were cn'orscd en the hack cf it. viz, that " eo long as tho water granlod by the certificate was required f;jr genera! purposes, it- ra to remam public; property " further, that, Clancy and M'Dyer were to have the use of said water by night, and fur'her that, C'.ancey a:i i M'Dyer thru'J retain the priority of right at p.ny future.

time. On the 6th April 1860, the Appellants purchased the right, since which time up to the 7th August 1868 they have been in undisputed possession, excepting on ono occasion, in May iSSS, when Wilcox and party disputed the right, which resulted in a verdict fur the now Appellants. In June 1865 Merrick and Ilewes the predecessors of the present Respondents obtained a certificate for water, (tail water) from the same creek, the source to bo below Appellants tail race. By this right the respondents claim priority to tlio water, to the injury of Appellants right, the source of which is about 100 yards higher up the creek. Now the first ground of appeal is, That by the decision of the Court in Wilcox and others v. Minton and others, Appellants right was not cancelled; and second, That respon lents gained the verdict appealed against a misrepresentation, inasmuch as the race set forth as being an original grant to the appellants, the race now in use is only some few months old, the being destroyed an 1 their present one being constructed without the necessary permission from the Warden. J. S. Hickson, sworn, sail, I wa? War den of the Manuherikia district in 1864-5. 1 remember the circumstance of the petition against Clancy and M'Dyer's right. The Government was likewise petitioned on the same matter, an 1 I receive 1 instructions to issue a summons against Clancy an I M'Dyer, in order t; make the proceedings effective. 3?jUpon hearing the case I cancelled the certificate, with certain condit ions. I have this day looked over the judgment book, an J find only recorded the cancellation of ccitificate; but 1 distinctly remember that the cancellation was not e itira. I having written on tin back of the certificate the reservations as stated by appellants' con sol. It was an omission on my part not having stated the r 'serrations in the judgment book. I also reme:nb r transfering a share to P. Milton soma time afterwards and endorsing Mich transfer on the certificate ; also I rernembsr seeing the certificate and notieine the eVorsemcut at the time of the suit of Wilcox and otlurs against the now Appellants. Cross examined by Mr. Bv'ger.—ln conditionally cancelling the right, I merely e>:-e-eised the discretionary power vested in Warden's by the Gold Fields Rule, and Regulations, I'V not recollect making more than one transfer. Several other witnesses for the Appellants were examined, their evidence tending to show that the right to the water had boon in their undisputed possession for nearly four yea;-3. For the Respondents, the evidence adduce 1 was tha*. no documents were produced by the Appellants to shew a prior title to the Respondents, and tha' the cancellation of the right as evidenced in the judgment book wa*s entire. His Honor, after hearing argument on either side, which laslol about four hours, reserved judgment.