WARDEN’S COURT, ALEXANDRA.

Dunstan Times, Issue 364, 16 April 1869, Page 2

WARDEN’S COURT, ALEXANDRA.

Monday, April 12

(Before Vincent Pyke, Esq., Judge.)

In this case a complaint had been laid by Patrick Murphy and another, miners in Butcher’s Gully, against Andrew party, defendants, for that they, defendants, did, on certain days seti fortti in such compliant, unlawfully iliterfaue with the two heads of water allowed to the creek workers in the gully, under Section 14 of Regulation X., which prescribes that, “ T .vo sluice-heads of water shall, if required, be at all times allowed to flow in the natural course of any stream.” In consequence whereof' the complainants claim that they have sustained damages to the amount of £8 sterling. A second count charges the defendants with having removed a certain guage-box placed in their race “for the purpose of measuring said two sluice-heads of water.” It appears from documents in possession of the Court that, on the 20th of March/ 1866, an order was issued by Mr. Warden Robinson, from this Court, addressed to Andrew Wood and party, the present defendants, requiring them “to allow the full quantity of two sluice-heads of water to flow down the natural course of the said (Butcher’s) gully, and not to hinder the flow of the same, or to divert the same or any portion of the said quantity of two sluice-heads of water from the natural course of the said gully.” This order was subsequently enforced in April, 1860, when two cases were heard by the Court, both boine based on Wood and party’s non-compliance with such order. Both cases were tried by a jury, at the request of the present defendants. In the one case—-o‘Kano v. Wood and party—special damages and loss were held to have been proved, and the defendants were fined Is., and adjudged to pay £8 damages and £2 2s. expenses ; costs, £3 los, being equally divided. In the other case—Kenney v. Woods and party—damages were not proved, and the verdict was for the defendants.

Prom tire evidence now adduced it would appear (and, indeed, so much is admitted by both parties to the present suit) that that order has been varied by what may bo termed a private arrangement, entered into some time in March, ISG7, between tho

general body of miners in Butcher’s Gully, or some of them (for the evidence is not clear on this pomt), and the defendants, owners of the Caledonian Race, the terms and conditions of which may briefly ba stated thus

1. That Wood and party should he permitted to taka the whole of the creek water into their race from 4 o’clock p.m. until 10 o’clock p.m. every day. 2. That, in consideration of the privilege conceded by the minors as aforesaid, Wood and party should send all the Creek water down the gully during the remaining eighteen hours of the day.

The matter now under the consideration of the Court, when viewed by the light of the evidence given before it, resolves itself in fact into a complaint, not that the law has been broken, but that the conditions of this arrangement have teen violated by defendants. For although, in the first count of the complaint, as presented to the Court, it is set forth that “Defendants did, on the 23rd of March, ISG9, and following days, unlawfully interfere, &c., contrary to Section 14 of Regulation X., 1 ' the evidence

relied on by the complainants is addressed almost entirely to the proving of non-per-formance of the stipulation in the unauthorised private arrangement that defendants should let down all the water as from 10 pm. Such an arrangement can have no force whatever without the sanction of the Court. So much is certain ; and it is doubtful whether, even if so sanctioned, it would be of any avail as against the rights of other miners not being parties thereto. It has been pleaded hero that the consenting parties to this arrangement are the “ diggers” referred to in the singular document now before mo, and the inference has been assumed that such arrangements may bo made and revoked at tbe mere will and pleasure of the contracting parties. I cannot concur in that view. To admit such au assumption would be to admit that the miners—or rather any interested individuals among them—may legislate for their own advantage or convenience altoge[)■ vr|^ar t from the law, and equally apart^ advantage and convenience of tlmkflWng community at large, for whose protection the Regulation under consideration was wholly designed ; and whereas that Regulation was devised to repress monopoly in water, the operation of such arrangements would be to create a most complete monopoly of both ground and water, effectually locking up payable ground against all newcomers. More, it would bo to admit that the existence of a special right to the usufruct of water may be vested in persons who do not acquire such right in the mode prescribed by the law-; and it would grant to individual miners that which the law declares shall be reserved for the use of all. Lot us suppose other miners than those interested in such an arrangement coming into Butcher’s. Is their right to use tho element so all-essential to tho successful pursuit of mining operations to bo restricted by arrangements such as that under review ? Are they, in so many words, to be told that

the privileges secured to them by their turners’ rights, guaranteed by the Goldiields Act and by the Regulations, and confirmed by a special order of this Court, have been bartered away by those who wore in the gully before them ? Really I cannot conceive any procedure more calculated to defeat the excellent intentions of the framers of the section which directs that two heads of water shall at all times be reserved for the general use of the miners. As a matter of public policy, therefore, and in conservation of the interests of the miners generally, the Court now refuses to recognise as valid an arrangement which is at variance with the law, and which virtually sots aside the order (never revoked) of March, 1860. The complainant, by enAaiqg into and becoming a party to that .WRuigement, has forfeited his right to fall baelaon the Regulations, and cannot now claim) redress for the violation of the law by defendant, inasmuch as he has himself become a consenting party to the wrong set forth in the complaint before me. With regard to the second count, namely, “That defendants have removed theguagehox from the head of their water-race in Butcher’s Gully,” it has been most clearly proved by complainants’ own witnesses that the guage-box was destroyed by a landslip in February, 1868, and it has not been attempted even to show that any demand has been made on defendants for the replacement of such box prior to the present dispute. On both counts of the complaint then the Court is against the complainants ; but as to the relief claimed there is an essential difference. The damages sought I shall of course refuse to ’award ; but I have no hesitation whatever in adjudging defendants to “ replace their guage-hox,” as complainant prays, for thepurpose of measuring two sluice-heads of water into. Butcher’s Gully ; and this they must do forthwith at their own expense. Defendants plead that the former box was wrongly placed in such a position that its destruction by landslips was inevitable, and that they pointed this out at the time of its being so placed, both to the Warden and to the Mining Surveyor. With that, however, the Court now has nothing whatever to do. The hex was, it appears, removed from its original position to that where it was destroyed, by the order of the Warden, and such being the case a new gnage-box must be provided by defendants, since it is for their own benefit that they have been allowed to divert any portion of the water in the creek. The site may be fixed hereafter, when the ground has been inspected by the Government Surveyor. Judgment Complaint dismissed, each party paying their own costs. Defendants to replace guage-box forthwith, in accordance with order of 26th March, 1866.