DISTRICT COURT, CLYDE.

Dunstan Times, Issue 629, 8 May 1874, Page 3

DISTRICT COURT, CLYDE.

T r William Bohnfng ahd others, appellants, v. Pierce Carroll and others, defendants. JUDGMENT. His Honor Judge Gray sat, by adjournment, on Tuesday, the 27th of April, and delivered -h'U reserved judgment in this . case—an appeal from a decision of Mr. •Warden Simpson, given at Alexandra. The following ’3 the substance of the judgement. We give it at some length, us the case has excited "considerable interest among miners : 'The Judge 'said |tbat the arguments before him had taken a very wide range ; hatpin arriving at a judgment, he left out of account s me|p sjible|objectiuusthat have 1 eendiscussed, and confined!.is atte dicn to the ground of appeal actually assigned by the appellants?; In-doing so he not only acted in accordance with ktv, but he also served the justice'of this case ; for he conceived that the stated grounds of appeal, though taken by an unprofessional person (Mr. Bohning, one of the parties’n the case), embraced all the matters that were truly and bona-tide iu dispute between the’parties. A! Thou 'h the subject of the appeal would have included matter of fact as well as matter of law’, both parties—the appellants represented by Mr. Bolin; "g, : itud the defendants, represented by Mr. Wilson, solicitor- were content to lay the facts before him on their mutual statements (which differed very fitfeio '■from eacli other) leaving him to draw all necessary and reasonable inferences. The controversy vu-s thus reduced almost wholly to matter of law. The matters which had to be considered covered two litigation) before the Wards". There was first a purely mining case, founded on a complaint in the nature of an action for damage dore to a claim. Tins complaint was adjourned to make way for an arbitration in the nature of a statutory addtration to ascertain the amount of compensation for damages (if any) payable Ly the defendants. And then there was an action before the Warden to recover the amount awarded in this arbitration. The present appeal was taken against the decision of the Warden do thedatter action, 'in which he gave complainants judgment for 23/., the whole amount awarded by the arbitrators, and costs. Though this appeal was taken in the latter action only, it was necessary (o n due understanding of the case to conMifer the subject matter of tiho first action, and what had occuired at the time of it. Thus this cate came to embrace mining law along with questions as to the law of arbitration and awards. ile found the facts of the case to he as follows Tlu b'esponde'fits (complainants below) were possessed of a special claim (Gold-fields Act, Section 12) iu Butcher’s Gully. (In tins appeal nothing turned on lU.; claim being a special one ; no question ha'. iug boon raised on that poifi’t-) This special claim consisted of a very long irregular strip of ground, being the bottom of a very narrow rock-bound gully, which it occupied from side to sale. .From the Inver boundary of the claim there was cari i ,-d down the lower part of the gully cu np ainaots’ tail race. So narrow was the gully that this tbit-race left but a very naiTowbitrip ou one side or oilier of it, between ’t and the other side of the gully. Hisdloiior said that he would mention here (in passing) that it was agreed between the parties to the appeal that a tailraco was as much a claim as a claim consisting of actual mining ground. This would be found material to remember. Above the special chiim of the complainants, anti above the •gully, fay oilier mining ground which could not he drained—in other words, could not bo worked—but by means of a tail-race passing through this narrow rock-bound gully, which, as just stated was a portion of it wholly occupied by the special claim of the complainants, and a portion of i l -, the lowor portion, almost wholly occupied bv their tail-race. If the ground used for depositing spoil or tailings cn the banks of the tail-race were taken into account as a pi ft of the [tail-race, then [lower port’o.vof the gully might he sa : d {i bo wholly ccoup'ed by the tail race rs the upper portion was by the special claim. This gully, tV.cn, burned the onlyout'et forthe mining ground above it. Tun appellants (defendants below) owned a claim—a sluicing c ai n, as nearly all the c’lima in’this district a'e—iu this mining ground above ; an I, if it was to bo worked, it must be Wo; ked by means of a tail-race pSSsing through the gully, not only through the complainants’ claim; but, after it had passed through the claim, still holding its bourse down the gully, alongside of, or, if need be, using, as a part of it, tho tailrace of the complainants. The appellants c'ioso not to ’use any portion of the respondents’ tail race; hut determined, partly by tho aid of flaming, and partly by using the narrow riband of 'ground left on one side or other of respondents’ tail-race, and crossing that tail-race from one side of tho gully to t.he other, as the exigency of the ground might arise, to continue their own separate tail-race. It would he observed, therefore, that the pieferred tail-race of the appellants would first pats through tho special claim of tho respondents, and still following down the gully, would pass alongside of and in close proximity to the edge of respondents’ tail-race, crossing that tailrace as the formation of the ground forced it to (Jae side or the other. The appellants, to he permitted to carry their tail-race ■along this line had to avail themselves of the IGth Section of the 20th Regulation of the ‘Hold-fields Regulations 'Regulationst edition 1872;) That Section was in the following words: — “Any person or persons shall be enetitled to constuct a head race , tail ra'cc, or flcoi 'race, ordiive any tunnel oeer, under, or brogh any claim, provided it docs not

interfere wi : hj the proper work mg of the ; same, and that compensation shall bo - •allowed for 1 estimated damages (if any) and snob compensation shall (if necessary be decided by arbitration.’ 1 It was of course necessary, as in the case of any other tail-race,-to procure a licence from the Warden. They accordingly applied to tho Warden in tho usual, manner, and giving the prescribed notices, and, on hearing such objections as were opposed by respondents. The license for the tail-race was’graiited by the Warden, but no steps were taken to estimate, by arbitration or otherwise, what compensation (it any) should be paid to the respondents. It was generally considered among the miners, and, he believed, among the Wardens, that the proper time, or at least the most convenient time fur ascertaining the amount of this compensation was at or before the grant of the license; but it was by no morns clear with them that it might not be : sceitained after the grant. That question did not come up for his decision, though he believed it was debated before the Warden. It did not form one of the grounds of appeal. He might notice, ho wever, in passing, that the Regulations pub. lished in the Bock of Regulations, edition of 18G4, Section 2"i of Regulations 4. in dealing with the same subject, need these words : shall be allowed for estimated damage (if any), and prior tn the constiaction of such • •‘co such compensation shall bo paid to the bolder or holders of tl/e- claim through which, dc. But that the corrcspmuling Regulation found in the Book of 1870, which provided for on arbitration, the piovision aslo tbe.payrncnt of the compeasai on before commencing the construction was dropped out In thii case, however, the e *.vas no inquiry as to compoatation at the t'uio of the grant, partly, as was alleged 1 y reap indents, for the reason that it would Lave betn difficult to asoeitain them until some progress had been made in the construction of the race. After the construction of the face had commenced, the parties began to disagree, and the question ot damages to re .pond---.its occasioned by the constructing of appellants’race came up. Then came the first proceedings in the Warden’s Court. On the sth of (November last, respourlunts suumiMied the appellants, complaining. First, That they had entered complainants’ claim and removed auriferous earth •Second That they had entered complainants’ claim, and consuuctcd a lad-: led witho..t lawful autluiily. Thirdly, That they had intermeddled wich.a lleed-ra :o of complainants. The Warden considered that, according to the form of -this coniplai-it, the first two counts w ere a proceeding in trespass against defendants lor what they necessarily din in the "onstmetiou m their tailrace. He thought that trespass could not be maintained tor entering and constructing a tailA'ace which •dtUkv;'.ants Were autholised to make. That, as -to any damages resulting irum the making-of it, complainants were entitled to compensation for such damages (if any) ; but that their remedy was , to have this conpensatiou ascertained by arbitration, and then to proceed upon the award, j As to the third cdunit, he thought that a trespass-had been committed. Ho staled his opinion upon the case very fully He said that the matters which bad been brought before him wore but a fraction of a larger lield of litigation, which it was desirable to get chared. He-niumatlvertei strongly on the -difficulties which each of these parties were raising in the way of the course of their mining. He urged forcibly that the estimate of compensation wb'ch ought to have been made earlier by arbitration should he made now, and pressed the parties to enter at oneo into an agreement of submission for the purpose, expressing, as to the two first counts of the complaint, his opinion lhat, being counts iii trespass, they must he dismissed, became’ by' the acts which they complained of no trespass had been committed. He reserved bis judgment as to the third count, and declined, for the present, to d;ssolvo a i injunction witch bad been issued on the oomph inants" iutimailig that the retaining of the injunction woifitl act as a presiureon bclb .parties to enter into the arbitration, and ibns get lid of a praline source cf future disputes. Each party apeared to have their special ■ reluctance to enter on the arbitration, and each respectively desi-ed to encumber it with conditions, but the Warden p.-esSrd fora submission pmeMid e'.nnle, >. id a submission as was u uaily ente e.l into at the first making of g.ants of i..t-e3 Ihiough other parties ground. Bo,h parties at length consented to do this and they did it. 1 hey signed a form of submission that was to be found in the published book containing the Gold-field Regulations. This form was not there specially appropriated to any kind ot arbitration, and it was generally used on the gold-fields, the operative words of that form were as follows “ Wher&is certa : u differences and disputes have arisen and are still pending between the said parties, it is agreed by and between them that the same shall be referred, &o. Upon these words much of this contention would bo frond, to turn. He would row observe that in the course of the a- guuients before him, it was the subject of some debate whether the Warden had used an undue amount of pressure to bring about the submission. This question he said did not arise on the 'appeal, but he would say it was not strange that the Warden should use every legitimate exertion to obviate future litigation by bringing about an arbitration, which the parties ought {to have entered upon of their own motion. The Regulations, -or perhaps the Act were defective in -not providing a definite mode in which parties should be compelled to enter into arbitrations of (his

sort, which were prescribe'! on many occasions in the course of the Regulations. In this case the parties signed the commission which be considered was by no means a compulsory submission enforced by any order of the Warden, but a 'voluntary submission- adopted certainly on the strong persuasion of the Warden. The parties appeared before the arbitratots, but then their contention broke out again. They disagreed as to the subject matter of the submission what were the ‘‘differences and disputes " referred to the arbitrators for their decision, and this gave rise to the arbitrators making theic award in a form which constituted one of the grounds of appeal. The arbitrators duly made the award; they awarded the complainants compensation for three several matters of damages—for one 31 ; for another 10/.. and for a third 10/., in all 23/. The defendants refused to pay this award, except on terms which the complainants would not accept, and then complainants sued them on the award in the Walden's Court. This was tho second litigation in the Warden’s Court to which he had referred in his earlier remarks. Tho Warden gave judgment for the complainants for tho whole sum awarded—23’., and 31. 10s., costs, and it was against this Judgment of the Warden’s that the then defendants, the piessnt Appellants now anpeal. His Honor then proceeded to say that before he stated the grounds of the Appeal, he wonli first note the portions of the a ward which were material to the appeal. His Honor said that the award was remarkable for its clearness and comprehensiveness. 11 also 'was the work of a non-professional person, one of the arbitrator's, a miner. The award slated that “tho arbitrators “ having received no instructions as to the “ spocifio'matters on which they were to “decide ami the parties [to the suit not “ being agreed, theieon, the arbitrators “ have given their award, numbered 1, 2, “ 3, 4 and 5, subject to; the proviso that “ the said matters com? within the power “of the arbitrators to decide.” Ihe arbitrators then proceeded to state tho claims for com; msation made by the complainants numbering them 1, 2, 3, 4 5, and G. ’They then proceeded to state the answers made by the defendants numbering them 1, an I 2. They the i proeee lr 1 to make their findings, numbering'chem I, 2, 3, 4.1), and (!. Of these the tradings material io the Appeal were number, 3, 4, and G. [Km.waut oi space, we are compelled to bold over the remainder t of this jiidgtncn t till ouiMij’.tJssno J Several Arts on hmvesttVls have occurred lately io theWakouati district, which have clearly proved to be the p-esu.it DC inert.t. dairism. Science and akt. — A striking instance of the immense value a small piece of steel may acquire by lire great power of skilled mechanical labor is tire balance spring of a watch. From its extreme fineness and delicacy four thousand weigh trot more than one ounce, and exceed in value £I,OOO. A most interesting little work, describing tire rise and progress of watchmaking, has been published by J. W: Benson, of 25, Old Bond-street, and tire City. Steam Factory, 58 and CO. Ludgate hill, London. The book, which is profusely illustrated, gives a full description of the various kinds of watches anil clocks, with their prices. Mr. Benson, who holds the appointment to the Prince of Wales, has also published a pamphlet on Artistic Gold Jewellery, illustrated with beautiful designs of Bracelets, Broaches, Ear-rings, Lockets, &c., suitable for wedding,birthday and other presents. Illustrated catalogues sent post free 'for two stamps each, and they cannot be too strongly recommended to those contemplating a purchase, especially to residents in the country or abroad, who are thus enabled to select any article they may require, and have it forwarded with perfect safety.