DISTRICT COURT, CLYDE.

Dunstan Times, Issue 448, 18 November 1870, Page 2

DISTRICT COURT, CLYDE.

Monday, November 14. (Before his Honor Judge Grey). . Naylor v. M‘Arthur.—Withdrawn. M‘Combe v. English.—£7s 10s., amount of a dishonored bill of exchange. Mr. Brough, counsel for the plaintiff, applied for an adjournment, so as to allow time for an amicable settlement. His Honor adjourned the case until the next sitting of the Court. Taylor v. Badger.—Claim for£l34 11s. (Id. for goods sold and delivered. Mr. Brough, counsel for the phaintiff, stated that the service of summons had not been made on the person, through defendant defendant keeping out of the way, although everything that was possible had been done, and therefore applied that the case might be proceeded with. His Honor said he would hear evidence as to service, and would afterwards decide whether ho would adjourn the case or not. The evidence of B. B. Baird, Deceiver of Gold Revenue at Cromwell, and of the plaintiff, having been heard, the case was proceeded with. James Taylor, sworn : 1 am a carpenter and builder, residing at Cromwell Supplied defendant, during the months of Juno and July last, with building materials to the amount sued for. In August I rendered him the account. He said ho was to obtain an advance of money from Mr, Bair', and then ho wonld pay iue. On tk'* 22nd o

August he went from Cromwell to Clyde, to sign the necessary papers respecting the advance of money from Baird. I went to Clyde on the same day, and overtook him on the road. We had a conversation respecting the whole affair, and he promised to see me at Clyde. About one mile from Clyde I left him, since which time I have never seen him, Letters from him have been received by people resident in the district, the last of which bore the Bluff post mark. Judgment for the full amount claimed and costs. IK BANKRUPTCY. JRo William Crant, of Bendigo, carpenter. —This was an application for a final order and discharge. There being no opposition on the part of Messrs. Dalgetty, Rattray, and Co., the only creditors, the order was granted. Re Charles and Henry Schultz, of Cromwell, minors.—A similar application was made in this case. There being no opposition, the application was granted. Re William Henderson, Gentle Annie, storekeeper. A similar application was made in this ease. Adjourned for two months. The Judge ordered the bankrupt to assist the Trustee in realising the estate; otherwise, his certificate would be further suspended. APPEAL CASE. Allen Donald M‘Lean, Donald M‘Lean, and Donald M‘Gregor, appellants ; Robert Scott and others (known as the All Nations Company), respondents. Mr. Brough, who appeared as counsel for the appellants, stated the case as follows : —This is an appeal from a decision given by Mr. Warden Pyke, in a suit which was heard before him in October last, at Cromwell. The original complaint of the plaintiffs in the Court below (the present appellants) is, that they are the owners of certain extended claims in Shepherd’s Creek, which said claims they are unable to work in consequence of the All Nations Company appropriating the whole of the water fi wing down Shepherd’s Creek, the latter having refused to comply with the complainants’ request that two sluice-heads of water, required £by them to work thenground, shall be allowed to flow in the natural course of the stream from which the defendants obtain their supply of water, contrary to Regulation 12, Section 14, of the Goldfields Rules and Regulations, 1870, and the complainants claime i that the defendants should be adjudged to allow the said two sluice-heads of water to flow in the natural course of the said stream for the general use of the miners, and that they be further adjudged to pay the costs of the suit. Mr. Brough then went on to say that, on the hearing at Cromwell, before Mr. Warden Pyke, evidence was adduced to show that the then complainants were in possession of claims in Shepherd’s Creek, which they could not work for want of water ; that sixteen acres of ground had been taken up there ; that all the claims were in the same position, that is, unworkable for want of water ; that payable prospects bad been obtained, and great expense incurred in constructing tail-races. The Warden, after hearing the evidence, refused to make an order that the two heads of water be allowed to run down the creek, and it was from this decision that the appeal was made. He (Mr. BrouMi) contended that every right to a supply of water out of a creek must be considered as subject to the reservation of two heads of water for general purposes should the water be at any time wanted, and that the creek must be considered to have the prior right; that it was not in the Warden’s power to grant the two heads at all, nor in his discretion to refuse the order sought for in the Court below. The learned counsel said he did not propose to call witnesses, as there were no facts in dispute, the question being one of law only. His Honor however having expressed a wish to hear evidence, two of the Appellants were called, and their testimony merely confirmed the facts stated in the complaint. Mr. Behrens who was acting for his partners the respondents, submitted that the words, ‘ general use,’ did not include such an use, as that to which the appellants proposed to put the water. His Honor in giving judgment, referrel to a memorandum, with which the Warden had favored the Court as to the grounds of his decision It appeared he had interpreted Sec. 14, Reg. 12. as a direction to the Warden to bo acted upon only a.t the time of granting the Certificate or License, and considered that such License being once granted, that Section had no further operation. The Warden thought that it was not intended by that Section to provide that there should at any time be returned to the creek, any water, which by the authority of the License had passed into the possession of the Licensee. It also appeared that the Warden thought he might take an Equitable view of the case grounded on the long undisturbed possession of the defendants, and the impolicy, on public grounds, of making these water rights precarious in their tenure. The Warden was also influenced by other considerations relating to the character and natural disposition of the ground, and the purposes for which the water was now demanded. His Honor thought that the Warden erred in his interpretation of the 14th Section. In His Honor’s opinion, the provision of letting the two heads of water run down the Creek in the nature of an exception to the original grant, though it might be that this exception would not operate until the contemplated contingency had arisen, subsequent to the making of the grant. As to the Equitable consideration, he would onlysay that, he did not think the particular consi leration alluded to ought to prevail. The defendants had not acquired any new rights against persons who might come to dwell or to mine along the Crock by the long continuiuice of their possession, but

he would not take upon himself to say that in the course of a new trial, Equitable considerations might not arise in some other shape fairly available for the benefit of the Respondents. There remained the question whetherthis water was now “required forgenoral use ” within the meaning of the 14th Section; on this point he did not feel himself able to give a satisfactory decision on the evidence which had been adduced in this appeal, and he thought that in the original trial, attention had been diverted from this point by the views taken by the Warden respecting the other two points which if correct, were in themselves sufficient to decide the case. He thought that justice would bo best served by directing a new trial before the Warden. His Honor made some observations ns to the meaning of the words, “ required for general use,” but declined to give any definition of their meaning. Any attempt at defining them before the facts were more clearly ascertained, might, he said rather prejudice the right, than promote it. The case beingnow cleared of what he considered an error of the Warden in the interpretation of the 14th Section, and with the observations he had made as to the suggested equitable consideration, he would direct the case to be tried again before the Warden, or Warden and Assessors, as might be. The costs in the case below, to abide the event of the new trial. Respondents to pay the costs' of this Appeal, costs of Court, £2 ; Professional Costs, £4 45., in all, £G 4s.