WARDEN’S COURT, CLYDE.

Dunstan Times, Volume 642, Issue 642, 7 August 1874, Page 2

WARDEN’S COURT, CLYDE.

Thui.bday, Auts. 6. (Before W. L. Simpson, Esq., Warden.) J. D. Feraud v. Corporation of Clyde.— Mr J. R. Cowhb, solicitor, appeared for the plaintiff, and Mr F. J. Wilson for the defendants. This was a complaint for a decree of forfeiture of certain water-races, and was as follows : 1. That the defendants have illegally obtained a certilicate of transfer. 1. That the defendants have no legal rights to own or possess any waterraces for gold-mining purposes, nob being a gold-mining company. 3. That the defendants, being a municipality, under the Municipal Corporation Ordinance, 1865, have no right at law' to divert, use, and occupy any wntei f or gold-mining purposes, they not having obtained a special charter or authority to that effect. 4. 'i hat the said water-races have been entirely unused by the defendants for over the space of one calendar mouth. Wherefore complainant claims that the said certificate of transfer be cancelled, and the defendants’ rights bo declared forfeited. Mr A. D. Harvey, Mining Registrar and Warden's Clerk, produced blocks of the certificate of transfer of a water-race taking its rise at the gorge of the Wai Keri Kcri Creek, taking up tho w'ater of the Wai Puna Creek in its course, and terminating on the east hank of the Molyneux, from Josepih Hastie to the Clyde Corporation. J. D. Feraud, the plaintiff, gave evidence as follows :—Knew the water-race in dispute. It has two heads or sources of supply - one from the Wai Keri Creek, the other Wai Puna Creek, and its course the municipality of Cly'de for about one mle and a half. On account of thoneglig< nee of the Corporation of Clyde, thoWai Keri Keri branch is blocked up and no water running in it, and from tbe Wai Puna tber« is only half a head. The water is used only for domestic purposes by' myself, other settlers, and tbe Hospital. It has not been used for mining since about Christmas last. The Corporation of Clyde is not a mining company' : it holds a miner's right. Had been a tucmbei’ of tho Clydo Council. lain not now', thank G id. Tho Corporation does not hold any charter or other authority to mine for gold. Cross-examined : Can swear that, after heavy rains and during this year, 1 havo seen fifteen or sixteen heads of water running down the creek, and none in the race. This day there is sufficient waiter running in the Wai Puna branch of the race that, if stored for twenty-four hours, would give a man eight hours’ work. The race runs through ray property, and 1 take water from it for domestic purposes. Have done so for iirigation, but not for tho last six or eight mouths, because I was prevented, and there was only sufficient water for the Hospital. A. A. Oliver deposed : The race in dirpmte runs through my property. I pay 41. a year for the use of the water for domestic purposes. When lean get water I use it for irrigation. The race is in a wretched state, the quantity of water running in the race is so small that it could not ho used for gold-mining. About six weeks ago, there was water running in it tho whole distance, that is, so far as I went up it Ido not know from my own observations if the race has been used for goldmining since February last, I do not think

George Smith deposed—l held for seven or eight years an interest in the race in dispute, and until it was sold to the Clyde Corpc* ration. I and another then rented it. In February last wc gave it up. the water nob being sufficient, the first right of water from the Wai Keri taking it all. During my ownership tor several summers wo were idle for four or five months for want of water. I still hold a mining claim and have tools for working it, and intend taking the water again immediately there is sufficient. Tno race as at present will carry sufficient water for mining when there is an}'. Richard Poole, Town Clerk, said—Tho Clyde Corporation had no special Charter for mining ; the last witness and his mate, under a verbal agreement have rented the water of the race in dispute, paying for the same seven shillings and six-pence per week : they had to keep it in repair ; the agreement still holds good. This closed the case for the plaintiff. Mr Cowan after arguing at some length said that tho Corporation of Clyde were not authorised to hold a miner’s right, they not being a person within the meaning of tho Gold-fields’ Act. and contended that the Certificate of transfer should ho cancelled.

Mr Wilson, who did not call any witnesses, in argument cited the Gold-fields’ Act Amendment Act, 1869; the Limited Liability Act Amcdment Act, 1860, and the Municipal Corporation Ordinance, 1865, as giving the Corporation power to hold a Miner’s right, and also to invest in mining or other property, whether within the Municipal boundary or outside. Ho said that the third clause of the complaint was beyond the power of the Warden’ Court, and as to the last clause it had been clearly proved by the evidence that the non-usage of the water was beyond the control of the

Corporation. The Warden, in giving judgment, said : I am satisfied that the Corporation is a person within the meaning of the Act, and has a right to demand a miner’s right an I to acquire mining rights. It may be the Corporation, as quasi trustees, may Lave stepped beyond their duty, and it maty bo in the power of a rate-payer to call these trustees to account. But surely property is not to be lost in consequence of

the wrongful acquirement. The Ordinance appears to put it beyond doubt that the Corporation hail le gaily acquired the right. As to the fourth cause of the complaint, the evidence had failed to prove the race to have been unused. Judgment is given for the defendants, with costs. Mr.Cowan gave notice’of appeal.