IMPORTANT MINING DECISION

Dunstan Times, Issue 362, 2 April 1869, Page 3

IMPORTANT MINING DECISION

The fol'owing was the ju Igment delivered by his Honor Judge Grey in the District Court, Naseby, on the 10th ult. White and others (appellants) v. Nichol, Sampson ami others (respondents).—ln this appeal, heard at the January sitting of the Court, and in which the Judge had reserv ed judgment, judgment was now given. The appeal was from a decision of Mr. Warden Robinson and assessors. Respondents had been plaintiffs below, an I the present Appellants defendants below. Plaintiffs below were owners of a waterright, by which they were entitle! to divert water from the Little Kyeburn Creek, at a point in the mountains not very far from its source. Defendants were owners of a sluicing claim still higher up—about a mile and a half distant from Ihj pirt at which plaintiffs took their water, and situated up one of the tributaries of the creek. The fall from this sluicing claim to the defendant’s race was very steep, probably 1200 feet in the mile and a half.—Plaintiffs had complained against defendants for damaging plaintiff’s water race by negligent ly allowing tailings from their claim to run into plaintiff’s water race. The assessors had found for the plaintiffs 13 damages, but recommended to the Warden, that no process should issue to stop defendants’ workings. The Judge, in now giving judgment, said that he considered the meaning of this verdict was that the assessors considered an injury had been done by plaintiffs, that it was not at that moment great in amount, that it was of a character to be compensated by carnages without any necessity for immediate restraint upon defendants’ workings, and that the determination of the right in the action would probably lead to an arrangement between the parties as to their future mode of working. His Honor said that he concurred in this view of the jury. At the request of the parties he had visits 1 the ground. The injury to the water race consisted of a deposit of stuff carried down from the defendants’ claim, and accumulated at the mouth of the race. At the hearing of the appeal defendants had taken very strong grounds, They insisted upon the right of sluicers to use all the rivers and water-courses of the country as tail races, into which they were entitled, under the Gold Fields Act, to discharge all their tailings. With this contention he could not agree. He thought the utmost the defendants could claim was this—that, being themselves entitled to divert water from other water-sheds, bring it to their claim, and there use it for mi-

ning purpose-, they were also entitled to discharge the water in the new water shed to which they had carried it, after they had used it for mining purposes. They might contend that the very nature of its use in mfning purposes necessarily loadel it more or loss with matter held in suspension, and which could not readily precipitate ; and so far as the injury to the defendants arose from the ultimate precipitation of such matter, he woul I say that it might he argued with considerable force that plaintiffs could not be accountable, but it was not necessary for him to decide this in the present case. He had, at the request of the parties, visited the ground, and did find that no small portion of the stuff deposited in the race did consist of this fine sedimentary matter. It was this which induced him to hold the matter for so long a time under consideration before he gave judgment. The stuff sluiced down was from a hill composed in a great measure of very fine quartz gravel and quartz sand. Much of the sand deposited in the race was almost as fine as flour, and no doubt have taken some time to precipitate ; but a considerable quantity of thedeposit consisted of coarser matter, something much more than the mere soil of water discharged after it had done its mining work It had also been argued for the defendants that their claim, being nearly two miles distant from the plaintiffs’ water-race, they should not be held accountable for injury caused by works so remote. But mere distance did not necessarily make remoteness. The descent along the channel was in this case so steep that he must regard the discharge of tailings into the upper part of the creek as almost equivalent to an immediate discharge into that lower portion of it from which plaintiffs derived their water. He would affirm the decision of the Warden and assessors; but he considered the case a fair one for appeal and he would, therefore, leave each party to pay his own costs on the appeal.—“ Mount Ida Chronicle.”