DISTRICT COURT, CLYDE.

Dunstan Times, Issue 630, 15 May 1874, Page 2

DISTRICT COURT, CLYDE.

William Bohn fug and others, appellants, v. Pierce C'arl-01l ami olho.'S, defelulailts. JUDCM ::;t, H;s TTor.or Judge Cray sat, by adjournment, on Tuesday, the 27th of April, and delivered lug reserved judgment in tills case—an appeal from a decision of Mr. Warden Simpson, given at Alexandra. The following is the substance of tlio judgement. We give it at some length, r.s the case has excited considerable interest among minors ; The Judge said ‘that the arguments before him had taken a very wide range but, in arriving at a judgment, he left mi f of account soiuejp sublebbjeotio%that bbeen discussed, a id confined his atten the ground of appeal actually assignee the appellants. In} doing so he only acted in accordance with law, buY..,. also served the justice of this ease ; for he conceived that the stated grounds of appeal, though taken by an unprofessional person (Mr. "miming, one of the parties in the case), embraced all the matters that wore truly and bo»a-tide iu dispute between the parties. Although the subject of the appeal would have included matter of fact as well as matter of law, both parties—the appellants represented by Mr. Bohn in g, and the defendants, vepruseii.ed by Mr. Wilson soli-citor--were content to lay the facta before him on their mutual statements (which differed very little from each other) leaving him to draw all necessary and reasonable inferences. The con trot err-y was thus reduced almost wholly to matter of law. The matters which had to be considered covered two litigations before the Warden. There was hist a purely ' nrinimr case, founded on a complaint in the nature of an a ,'tion for damage done to a claim. This c nu plaint was adjourned to make way for an arbitration in the nature of a staiutory arbitration to ascertain the auioprt of compensation for damages (if any) payable by the defendants. And then there was an action before the Warden to recover the amount awarded in this arbitration. 'J lie present appeal was taken against tlie'decisi m of the Warden in the lap er action, in which he gave eomplai nants judgment for 2:',!., the whole amount awarded by the arbitrators, an !, costs. 1 nough ibis appeal was taken iu the latter acta m only, it war; necessary to a duo understanding of the ease to conshier the s’ltij .-ft. matter of the first action, and what hat occu red at the time of it. Thus this case came to embrace mining law a'ong with quest toils as to the law of arbitration and awards. be found file facts of the ease to be as follows : Tae res] ondeucs fcomphiinants below) were possessed of a special claim (' told-fluids Act, tjcc'icn 12) in batcher's dully, tin ibis app.-al nothing tunic.l on the claim being a sp< mat oi.e : no questi-u lowing bee i raised on that point.) This special claim consisted of a very long irregular .strip of ground, being flic bottom of a very narrow rock-ooiiud gully, which it occupied from side to side. From the lower boundary of the claim there was carried down the lower part of the gully com - plairumta’ tail race. So narrow was the g illy tli.it tins tail -rnco left lnit> a very narrow s» rip on one .side or other of it, bo tween it aiul nhe other side of the gully. Ilia Honor said that oc would mention here (hi passing) that it wes'iigrecd between the p-.rtics to the appeal IL it a taiirace was as Hindi a. c aim as a claim coiisislin/of actual mining ground. Tills would be found material r on niemb.--. Above the special claim of the complainants, and abo\c the g illy, lay otn t minhig ground which could nit be divined—iu other words, could not b; worked—but by means of a tail-race passing through this narrow rock bound gully, which, as just slated, was a portion of it w holly occupied by the sgecini cl. ini of the complainants, and a port-on of i , thejlower portion, almost wholly occupied by their tail-race. If tho ground uigal for depositing sp -il or takings on the banks of the tail-ia-.-o wore taken into account as a part of the lail-raethen the lower portion of the gn'ly might to- s-ud to be wholly o enpiod by lie tail race as the upper pnrt in was by the special claim. This gully, then, foinml the only outlet for the mining greuiid above it. The appellants (deftnd mts b- low) owned a claim-a sluicing claim, as nearly all the claims in this district aic—in this mining ground above ; aid, if it was to he worked, it must le worked by means of a tail-race passing through the gui’v, net only through the complainants’ claim ; but, after it had passed through the claim, still holding its course down lie; gully, alongside of, or, if need be. using, as a part of it, the tailrace of the coinpVnian's. The appellants ch.K c not to use any portion of the respondents’ tail race; but determined, partly by the aid of flaming, and partly by using the narrow- 1 i Vato of ground left on one side or other of ro.spon lents’tail-race, and crossing that tail-race from one side of the gully to the other, :.s the exigency of the ground might arise, to continue their own separate tait-raco. It would be observed therefore, that the preferred tail-race of tho appellants would first pass through the special claim of the respondents, and still following down the gully, would pass alongside of and in close proximity to the edge of respondents’ tail-i ace, crossing that tai’race as the formation of the ground forced it to one side or the other. The appellants, ti bo permitted to carry their tail-race along this line had to avail themselves of the 10th Section of tlmfliith Regulation of the Ool.Mioids Regulations (?,ook of licgulationst edition 1572 ) That Section was in 1 l.e follow ing words : “Any person or persons shall bo entitled to c.mstnei, a head race , tail race, or 11 m l race, or drive any tunnel o.\er, unde!', or “ hivugl, any c'ahu, pvuvided it docs a.u

interfere with the proper working of the | same, and that compensation shall be ' allowed for estimated damages (if ' any) ami r.uoh compensation shall (if necessary be decided by arbitration.” It was of course necessary, as In the case of any other tail-race, to procure a licence f oni tha Warden. They accordingly applied to tha Warden in the usual manner, and giving the prescribed notices, and, on hearing such objections as were opposed by respondents. The license for the tail-race was granted by the Warden, but no steps ; were'taken to estimate, by arbitration or : otherwise, what compensation (if any) i should bo paiditothe respondents. It was generally considered among the miners, i nil, he believed, among the' Wardens, that i >o proper time, or at least the most con- ' Airae for ascertaining the amount Ssiimpensatien'was at or before the of the license; but it was by no 1 s clear with them that it might not 1 Ue ascertained after the grant. Thatques- : tion did not conic up for his decision, though lie believed it was debated before the Warden. It did not form one of the ' grounds of appeal. He might notice, however, in passing, that the Regulations published in the Book of Regulations, edition of ISO 4, Section 25 of Regulations 4, in dealing with the same subject, used these words : shall be allowed for estimated damage (if any), and prior to the construction of such race such compensation shall bo paid to the hj >ldar or holders of the claim through which, &c. But that the corresponding Regulation found in the Book of I£TU, which provided for an arbitration, the provision as to the payment of the compensation before commencing the construction was dropped oht 'ln this case, however, theie was no inquiry as to compensation at the time of the grant, partly, as was a'lege d by respondents, f..r the reason that it would lave beta difficult to ascertain them until some progress bad been made in-the construction of the race. After the construction of the race had commenced, the parties began to disagree, and Hie qui sticn of damages to respond; nts occasioned by the constructing of apptdlanls’ race cam j up. Then <-ame the first proceed ings in the Warden’s Court On the Sab of 'November last, respondents summoned the appellants, complaining. First, That they had entered compLinancs’ claim and removed auriferous earth. Second, That ihey had entered comp'.duanU’ claim, and constructed a tail-race without lawful authority. Thirdly, That they had intermeddled Vvithf. Hood-race of oSmplaiuants. Tho Warden considered that, according to tiic form of this complaint, the first two ' counts were a proceeding in trespass against ; eh-iendairts far what they uest-Ssa- ! lily did in the const ruction of their t.'-.ii-raco. He thought that trespass could not ■ be maintained for c-n!eving and cons'rnctmg atari-race which defendants were autho. ! lisvjd to make. That, as to any damages ' resulting from the making of it, complain- | aii-s were entitled to C'-mpensati u for 1 such damages ( f any) ; but that their 1 remedy was to have this conpeusotion l ascertained by arbitration, and ibeu to proceed upon the award. As to the third count, he thought that a trespass had been committed. He stated ' his opinion upon the case very -fuiiy. He said that the matters which bad Icon brought In fore him were hut a fraction of a larger field of litigation, which it was desirable to ret cleared. He animadverted 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 which ought to have been made earlier by arbitration should he made now, and pressed j (he pavties'to enter ut once into an agree- : incut of submission for the purpose, expressing, as to the two fbst counts of the, complaint, his opinion that, being counts in trespass, they must be dismissed, because" by the acts which they complained <-f no trespass had been committed. He reserved his judgment as to the thb-d Count, and declined, for the present, to dissolve an it junction which had he n issued i on the ion pink.aats’ intimating that the utaining of the injunction would act as a pressurecn both parties to enter into the arbitration, and thus get rid of a prolific sonice of future disputes. Each party apeared to have their special reluctance to cuter on the arbitration, au I each respectively desired to encumber it with j conditions, -but the Waidcn; pressed fora submission pure and simple, such a subj mission as was usually entered into attire j first making of grants of races through [ other parties ground. Both parties at J length consented to do this, and they did it. They signed a form of submission that was to he found in the published book containing the Gold-field Regulations. This form was not there specially appropriated to any kind of arbitration, and it was generally used on tho gold-fields, the operative words of that form were as follows “ Whereas certain difibrenres and disputes ha vc arisen endure still pending Ire two in tho said parties, it is agreed by and between them that tho same shall be referred, &c. Upon three words mueh of this contention would le found to turn. He would now observe that in the course of the arguments before him, it was tire subject of some debate whether the Warden had used an undue amount of pressure to bring about the submission. This question ho 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 bv bringing about an arbitration, which the parties ought Ho have entered upon of their own motion. The Regulations, or perhaps tho Act were defective in not providing a definite mode in which parties should be 'compelled to enter into arbitral:; ns of this

put. which were prescribed oa many oc- j C isiuns in tho course of the Regulations. In this case the parties signed thesubmis- ■ sion which he considered was by no means , a fcompulaory submission enforced by any order of the Warden, but a voluntary sub- ■ mission adopted certainly on the strong . persuasion of the Warden. The parties appeared before* the arbitiators, but then their contention broke out again. They disagreed as to. the subject matter of the submission wbat were the “differences ; and disputes ” referred to the arbitrators for their decision, and this gave rise to tha arbitrators making their award in a form which constituted one of the grounds of appeal. 'The. arbitrators) duly made the award; they awarded the complainants I compensation for three several matters of damages—for one 3 1 ; for another 10k, and for a third 101., in all 23k The defen. dants refused *o pay this award, except on'terms which the complainants would not accept, an 1 then complainants sued them on the award in tho Warden’s Court. This was the second litigation in the Warden’s Court to which lie had referred in Ids earlier remarks. The Warden gave judgment for the complainants for the whole sum awarded—23/., and 3k Ids., costs, ami it was against this judgment of the Warden's that the then defendants, the present Appellants now anpoid. ills Honor then proceeded to say that before he. stated the grounds of the Appeal, he would first note] the portions?*! the award which were material to the appeal. His Honor said that the award was iemail.able for its clearness an 1 comprehensiveness. It also was the work of a non-prof; ssional person, one of the arbitrator's, a miner. The award stated that “ the arbitrators “ having received no instructions as to the “ specific matters on which they were to “ decide, a id tho. parties to the suit'not “ being agree I thereon, the •arbitrators “ have given I heir award, numbered 1, 2, “ 3, 4’and 5, subject to the proviso that “ the said matters come within the power “ of the arbitrators to decide.” The arbitrators then proceeded to state the claims for compensation made by the complainants numbering them 1, 2, 3, 4, 5, and 0. They then proceeded to st.ato tho answers made by the defen lants numbering them I, an 1 2. They then p-model to mike their findings, numbering them 1, 2, 3, 4. !>, and 0. Of those tho fin lings material to the Appeal wove numbers 3, 4, and (3. Hy number 3 they disp ised of the claim for compensation numbered 3. That claim as stated by the arbitrarors, was : “ That at a plar t shown to tho arbitrators, Hob uing . ard party intended to construct a Hume along ; the side of the tail race of (.‘in-nil and i party, which flume would interfere with I i the disposal of the forkings and stones I i fi o:n Carroll and party’s tail-race, and wc ' assess tho damages at 10k I By number 4 they disposed of tho claim ! for compensation numbered 4. Tine claim ( as stated by the arbitrators, was as follows: : I “ That at a place shown to the arbitrators, . Helming and party intended to place aflume across tha said tail-race of Carroll and party, which Burning would interfere wiih j the disposal of the forkings and stones j from the said race.” Upon this they awarded as follows : “ That tho upper ' flume across the tail-race of Carroll and party will interfere with the disposal of the forkings and large stones on the side of the s iid tail-race, and we assess the damages at 13k By number G they disposed of the claim for compensation numbered 0. Thatclaim, as stated by the arbitrates, was: “ That IHhning and party, while cutting their t dl-race (he claim of . Carroll and party had destroyed a large quantity of aurij forons earth, the property of the said I Carroll and party.” Upon this they awarded ; “The arbitrators consider that Carroll and party have suffered some injury by Helming and party cutting through and removing auriferous ground in Caroll and party’s claim, and assess the damages a ; 3k” The Warden having in the action upon this award given ju !gm int for the whole amount of compensation awarded against this judgment, the defendants appealed. The grounds of appeal were expressed hy the appellants as follows “ Firstly. —That the arbitration being compulsory, in submission to a verdict of the Warden’s Court, for a general ob ject named and left pending in the said verdict, the arbitrators had no power to take into ‘consideration any other question brought before them. “ Secondly —That the way of delvery of the verdict (award) with a proviso as regards tiie questions numbered 2, 3, 4, 0 respectively, invalidates the verdict (award) as far as these questions are concerned. Thirdly.—That the award of 20/. given on questions 1 and 2 is bad, as no compensation can be given for being prevented to do an illegal act.” His Honor said these objdcticns taken by 'oue of the parties (Mr. Bolming, who was a foreigner) were rather obscure on the face of them, but as be cams to deal with each of them respectively he would state what ho conceived to be the meaning of it. The first as lie understood it, meant that , that the Warden had already in the first • action pronounced a judgment against complainants on the first and second counts of their complaint, that that as to what was complained of in theie counts his judgment was conclusive, that the subject matter of them could not be drawn into question again nor taken into consideration hy the arbitrators, and that there remained only tho matter of the third which they | had any jurisdiction to arbitrate on, and I that, having taken into account the subject ; matter already dcci <kcl in the action, their award was so far bad. | ! His Honor sa;d lie could not allow this gro vnd < f appeal. He must read the judg-

ment as a whole.' The Warden did not 1 finally adjudicate on tha subject matter of j these first two counts but declined to do ’ so on the complaint,then brought before ; I him. He said that, as counts in trespass, j he must dismiss them, ’because the acts t they complained of were not trespasses. 1 As.to the damages claimed}by them, they 1 were damages, ha said, that ought to be. t assessed by arbitrators, and ha pressed 1 the parties to enter in tula submission with 1 a view to ascertaining these damages (if 1 any) and recovering them by another pro- 1 cedure, and the parties did enter a submis- 1 sion, and proceeded ts an arbitration ac- 1 cordingly. The second ground of appeal meant, be < conceived, that the award was uncertain 1 and that it was not final, but left some < matters to be decided by future litigation. < Appellants objected that the arbitrators i themselves stated that tli-y were uncertain as to the subject matter of the submission. . and dealt with it only provisionally. -They < contended thaUthis statement by the arbiirators was .conclusive, .to show that the . award was not certain and was not final, and insisted that it was.clierefove bad. His Honor said that this objection had been : raised in the Court below, and the Warden : there mot it by saying There was no more • •uncertainty in thcUaward than was con- : staidly to bo found in jiidgmeuts.whorq (he magistrate, or judge, alter an expression of considerable doubt and hesitation as to the come truss of the judgment they' had arrived at, then piocceded to give judgment quite certain and final in its character. His Honor said he would add that the seeming uncertainty objected to was occasioned by tho iuim'p-p.the submission, which did not specify the matters to ■ arbitrated on, bat [only used the general phrase •’certain diflavnccs and disputes.*’ The same uncertainty was also liable to occur and constantly did arise v. heroAvords were employed that (were very commonly found in forms of submission, the words “all matters in difference between the parties.,’ Under these words, disputes often arose what matters.were “matters in difference,” and ii£Lud often to Le determined by p.u of evidence what matters really were in dilleienee. It did not oust . the jurisdiction ut the arbitrators Ihat .the parties on coming before them raised questions as to,what natters were in difference, and it did not make the award bad in this case that the ai curators stated, on Uk: face of the award that the parties had raised such .questions, and that the .arbitrators intended that tie validity of the award should be subject to the proviso that they had coirectly ascertained and had decided the matter in difiV-rcnco. The law itself made the same proviso, and it did not invalidate the award that the arbitrators had superfluously placed that proviso on the I face of it. He did not say, [however, that all comment on this part of the award was j , necessarily irrelevant. It might be alleged j and an endeavor might be made to prove I that, as. to the matters of difference which ! the parties meant to refer, and which had I to bo shewn by penal, there never had been an agreement between them, anil this , 1 passage in the award might bo adduced as evidence that there never had been any > agreement as to (he matters to be sub- \ 1 mittod, and, if that could be shown, be | 1 (the Judge) would say that the award would bo bad, as in such case there never . could have been a perfect contract of submission. As evidence [tending to prove that there hail been such a failure as to the conduct of submission his Honor said he bad given the proviso in question all the -weight which Le conceived that was fairly due to it; but I o found abundant evidence to satisfy him that both parties had signed the submission, intending thereby to enter at that later stage into the arbitration that was more usa'ly taken and would generally be more conveniently taken at or before the making of the Walden's grant, lie thought it had been proved with sufficient certainty that the “certain matters of difference and dispute which had arisen and were pending between the parties” were the matters of difference as to compensation, which it Was settled by Urn loth Section of the 20th Regulation should be settled by arbitration, and that the.mbitrators had decided these matters. The third and last ground of appeal was in Words as follows That the amount of 20/. bs given on questions 3 and 4 is bad, as no compensai ion can be given fur being prevented to do an illegal act. Tire Judge understood the appellants to mean not an illegal act properly so called, that is an act contrary to law, but an act not legalised, which the party ,had not acquired by law a perfect right and title to do. a right good as against all the world. They meant, ho conceived; that the complainants below had no right to recover and the arbitrators no jurisdiction to award them compensation for being obstructed in doing that which they had been in the habit of doing by tire mere sufferance of others by a mere possessory title, , and not by any right absolutely vested in , themselves. The application which appellants intended to make if the principle , thus asserted by them was this, that the injury for which compensation was given in No. 3 and No. 4 was not an injury done to the tail-raecs, but an obstruction to the use which tho complainants had hitherto j been making of the banks of their tail- | race. Defendants contended that the banks of their tail-race were no part of complainant s’ claim; that complainants , had used them as a place of deposit for , their tailings merely by sufferance of the [ Crown, and that that did not constitute a r right for interfering with which the arbiI tiators under this submission bad any t | jurisdiction to award compensation- He , . thought that this objection did not bear j with much force on No. 4. t-uch force as 3 it had bore, hot-bought, upon No. 3. As . to No. 4, it would be Ijorno in mind that

both parth'S concurred in this, that com-, p plainainauts’ tail-race was itself a claim, t T’he defend an Is,, by Section 15 Regulation t £O, obtained power to Carry, thoir tail-race t across it on condition of paying compensa- e tion. The damage in tho case of No. 4 i was done directly on the claim by a struo- t ture crossing it, and although the claim , for compensation No. 4 and, the finding disposing of it No. 4 intimated that the compensation, was aw.-<rded for obstruction ■ to t he disposal of forkings, and also inti- t mated that 'the manner of disposing f of the forkings used by complainants had i been by depositing them on the sides of y the tail-raoo, -this obstruction was on or t over the very claimjitself,'and'would have 1 been an obstruction, more or.less, in what- f ever way the forkings were disposed of.The objection, ;he thought, did-, not [ay ply with i much force to No. 4, and ho over-ruled is. 1 Further reasons for over-ruling it as regards No. 4 would presently .’’appear v, bile he t discussed it in relation to.No. 3. ( Tksjobjeatitm bore with more forcq on i No. 3. defendants contended as lie had I just intimated that ,tbe Complainants’ I right and title in their, tail-race extended 1 no further than tire' edge of the j,tail-race ’ itself, that it was limited to fie. breadth of tail-race stated in the application, and adopted in the license; they contended' i that the convenience or accommodation which complainants, enjoyed of f- u king ’tne stones and coarser stuff on to the bank was e u joyed j m ere ly.£oa s utterance froth ,tho Crown and without title. They contended that they thedefen.lants were running thoir race (in their Burning), at .the place referred toin Ko.]3, notHbrough, nor over, nor vai'er the race or “ claim ” of the complainants, bat over crown land ;they eonten’ed that as regarded - the. crown, Hand, which their liuming'actually covered, they had acquired by their grant oy license an actual title toj.it, withontj’auy trenching upon any pre-existing rights of complainants, and as regarded any narrow strip that might intervene 'f.betweon their flu-mii-g and complainants’ tail-race, they contended that; whatever might be their interference with that, it was an interference peiiuittcd by the same sufferance of ; the crov. n as that which had sufierred Hie I us; of it by the defendants, and in neither j case could thoir interference with the landalong tho edge of complainants’ race he made the subject of compensation to complainants. lids Honor' said ho had been much struck by defendant’s reasoning upon this' print. He was not prepared to say that for all purposes the title of a raceholder in his race extended beyond the edge of the channel or cutting defined in his application and adopted in his license It was ccntended on behalf of the eomp’ainants that, tho right to cut a race, and to keep the channel clear, inferred of nej ecssity a right to deposit spoil and fork- j iegs for a reaonahle space upon the bank. - j Whether this was.absolutely so, and for all purposes was, his Honor said, a question : of a class with, and very near akin to a question now a good deal mooted the question whether the right to divert water i to conduct it iu races, to use it for gold ■ washing, and to construct and use tailraces, earned with it a right to pollute or to interfere with the purity of streams, 5 audio what extent. He would not pretend now to decide that question, but at all events the raceholder was not wholly without right as regarded the" banks of his race. The Judge did not rely much on the’2lst see.;.m of the Gold-fields’ Act, paragraph 1, which gave the raceholder five fee ii on each side of all races within the meaning of that Section. It was not easy to say that that Section applies to any races, but races through private lands, yet wherever any discretion existed the policy of that Section supplied some guidance. Ho alluded to the discretion of tho Vdardtn in making these sccoudai y grants of which he would have more to say presently. Rut independently of this Section the raceholder hj id at least certain inchoate rights in the banks of bis race, which might well bo the subject of compensation. By Section 4 of Regulation 13, the Warden might “ protect the holder of “ any tail-race iu the occupation of any “ such additional area on either or both “ sides, either throughout the entire * ‘ length of such race, or over any and “ such portion as he might deem necessary “ for the preservation thereof iu a proper “ state of efficiency,” and as regarded head races, Section 10 of Regulation 12. provided thrt, “ The V. ardeu shall have power “ to protect a space not exceeding ten feet “ on each side of any head-race, either “ throughout the entire bngth of such 11 head-race, or over any and such portion “ thereof as he may deem necessary,” nor must it be forgotten that by Section 24 of the Gold-fields’Act, it was provided that in case of .any sale or leasing by the course of any land through .which a water-race, ' the holder of which nice might nutwith- ’ si-mding such sale, •* at all times cleanse “ and heap in repair such water-race, and “ might deposit the matter removed thcre- “ from to and upon tho adjoining land, 1 “Jjwithin a distance, not exceeding five feet “ from the said race without compensation 1 “ to the owner of the land.” In fact as ! regarded the banks of bis race tbe raceholder seemed to have at least a right to 1 acquire, which was almost in the nature of “ a purchasing clause,” and in the event ’ contemplated by Section 21 of tbe Act be seemed to have, a good deal more than ! that. It was therefore not clear to him, f the Judge, that tho banks of bis race, to a 1 limited extent, were not “ his,” aim were ' not a portion of his claim in a certain 5 sense, and that a sense within the i meaning of the loth Section of the 26th ■ Regulation, although the event in which ' ■ his title was to be perfected, whether an - i appeal to the \\ arden, or the event indicar ted by the 24th Section of tbe Act bad 3 not arisen. 3 | But there was another somewhat differt ent ground on which ho thom.-ht that this

part of the award could be supported. It 1 must bo remembered that this was a question not as to the legal title of laud, but as t) compensation for the losing of certain ’ advantages whether in esse or in posse, which the taking or the interfering with j the land entailed. Tho ground was not very different from that in which he hail j just been, reasoning, possibly it was only tho same in a different aspect, but this was 'lire aspect on which ho was disposed to place most reliance. When tho interference with the claim ■ itself necessarily interfered with rights, with which the party complaining would have had a right to peifcot, if,the claim had not been interfered with, then he conceived the interference with those latter rights was' a proper subject for compensation. This was ~ rspecial!so, as regarded rights, the proliable interference with which might have been made legitimate ground of objection to the grant that interfered with them, objections, which in this case, the Warden 1 might have made a ground for wholly refusing the grant, and which, if the arbitration bad taken place at the usual and moat convenient time, it was scarcely to bo supposed could have been eucluded from the scope of it. Hia Honor again adverted to the - descrip! ion he had already riven of the ground, and observed that f-om the moment the defendants’ tail-race first entereu the gully, it became indispensible for defendants in order to realise any use from that tail-race, Hut they should interfere with complainants in the proper and usual working of their claim and tail-race down the whole length of the gully, and this inference became, he thought, the proper subject of compensation. He also observed that a Court would not oven in the case of compensation ascertained by Statutory arbitration interfere with the award of the arbitrators on light grounds, it must be seen that the error, if any, of the arbitrators, went to the very basis of their jurisdiction. The cited case of Rhys v. • Dare Valley Railway Company, 37, L. J. Ch., 719. On nirtheso grounds be would confirm the judgement of the Warden, but without any eo ts on this Appeal. It. had been much pressed upon him that a largo class of miners felt interested in the principal question raised on Ibis Ap- 1 peal, and for the purpose of a more satisfactory settlement of that question, that it might badcsi wbie to take tho opinion of the Supreme C mrt—on that quest! on, the giving of compensation for interfering with the depositing of forkings on tho side of tho tail.race he did not find his mind s > clear of doubt that, he would refuse to state a case, but it must be on terms. If a case were stated, Appellants must pay the costs of this Appeal into Court to abide the event, and must also pay into Court the amount c.t the Judgment and Costs in the Warden’s Court, likewise to abide tho event, and must give security in the sum of CO!, to the satisfaction of tho Clerk of this Court to pay to the Respondents any | costs that they may be ordered to pay consequent on 'die proceedings on the case stated fortho Supremo Court. As he entertained no substantial doubts as to the correctness of bis Judgment, except as it affected the 10!. awarded on the third finding of the award, ho would refuse to state any case if the Respondents consented to vary the judgment of tho Warden by deducting from it that 10!. but if a case had to bo stated, ho would ask the opinion of the Court on both findings, No. 4, as well as No. 3. He would allow Appellants until Friday the 22nd instant, on or before that day to deposit the monies, and to pci feet the seci nty as required. Ho would require the Respondents to declare their option to the Clerk of the ; Court on or before Friday the loth instant.