DISTRICT COURT, CLYDE.

Dunstan Times, Issue 833, 5 April 1878, Page 3

DISTRICT COURT, CLYDE.

—o — April 1, IS7B. (Before his Honor, Judge Harvey.) Appeal Case, The Corporation of tho Town of Clyde v. Jean Ddsiri Feraud. This was an appeal by the Corporation of Clyde against an order made by Mr Warden Simpson on the 24th January last declaring a certain water-race, belonging to aopallants, to have been abandoned by them. Mr. Wilson, Solicitor, appeared for the appellants, end the respondent appeared is person. The grounds of appeal were : Ist—the respondent (who was the Complainant in the Court below) being a member of tho Corporation could not, whilst he remained a member, maintain any action against it. 2nd—That nonuser is not of itself evidence of abandonment. There wore two other grounds of appeal in tho notice but they were struck out by consent. Mr Wilson argued that Respondent having been elected Councillor of the Corporation, having acted as such, and not having sent in his resignation was still to lie regarded as a Councillor, and that although his election was voidable for irregularity he wan still Councillor dt facto though not dejurc. He referred to section 33 Otago Municipal Corporations' Act, 1855—That an Agent cannot sue his principal whilst he remains such Agent—That Rc»pondent being a member of the Corporation was hound to conserve tho property af which he had been placed in trust—That nonmsr is not a ground of forfeiture, and that by the GoM-fields’ Regulations in force at the time the water-right was taken up, the word “ abandonment " was declared to be the ground of forfeiture and not tho word “ nonuser ” as in the present regulations—That there must lie some act done beyond tho mere nonuser of a claim, from which evidence of an intention to abandon may be inferred, Mulachy and another r. Walhalla Gold Mining Company, Macfarlane's Digest 1870, page 1. Respondent in reply stated that the eltx:Uoo took place on3Ut July, and by the

A ;t it was li tod for August Ist—That tliroo v nr.i ago Vppellants had, without leave of the Warden, altered the point from which they were entitled to take their water to another punt a mile and a half higher up the stream - Coat they had allowed a consi Icrablo extent of the race to he destroyed —That the race for which they held the Certificate had been disused by them for three years, and that those acta were auliicisnt evidence of abandonment.

His Honor was of opinion that they wore acts, such as would justify tho Warden in finding that tho race was abandoned by Appellants, and that, whether Respondent was legally a member of the Corporation or not, in as much as tho Appellants had abandoned tho race throe years ago it was no longer property of the Corporation which the Respondent was bound to conserve, and that ho was entitled to bring his action. Appeal dismissed. Appellants to pay Costs of Court