WARDEN’S COURT.

Dunstan Times, Issue 836, 26 April 1878, Page 3

WARDEN’S COURT.

Thursday, April 25th, 1878. (Before W. L. Simpson, Esq., Warden ) Feraud and another v. M’Ferran and others, shareholders in the Golden Gate Water Race Company.—Application for cancellation of certificate for 5 sluice heads of water from Leahy’s Creek and other tributaries granted June 28th, 1872.

Mr Feraud conducted the case for plaintiffs, and Mr F, J. Wilson appeared for the defendants.

Mr Feraud, in opening his case, said he brought the present case on public grounds, and not in the spirit of benefitting himself; the defendants had a right of water granted them in 1872, and that instead of utilising it they were allowing it to run to waste to the detriment and injury of many who would be only too glad to take it up. J. D. Feraud, defendant, being sworn, deposed : I am a settler and owner of 50 a l j of freehold land in the Wai Keri Keri Vi,.’ey. I served a notice on defendants about 18 months ago to cease taking water from the Wai Keri Keri Creek ; for over two years the defendants have been mining in Oounew’s Gully with water from the Wai Keri Keri Creek; they have no right to divert this water, and have been fined for taking it. In March last I was constructing a water race for irrigation purposes, a few days previously granted to me. Finding there was not the usual quantity of vater flowing in the creek I proceeded towards the head, and found that defendants had diverted about four heads of water into their water race. On the 7th of March I wrote a letter to the Warden complaining of this wrongful diversion. On the 27th of March I again went up the creek with a man and found, according to measurement, between four and five heads of water running into defendants’ race. On the same day, however, there was about two heads of water running into the lower part of the Wai Keri Keri Creek from out of defendants’race. On the 7th of April I went to aee if defendants’ water race was completed to its proper source, Leahy’s Creek ; 1 found the race from the creek was not capable of carrying water, and that about five heads of water were running to wasteBy Mr Wilson ; I cannot say if there are any other rights than defendant’s out of Leahy’s Creek. I did not go along the course of the race, therefore cannot say in what state the race is in ; I only went to the head and saw that it was not finished to carry water. David M’Ferran, sworn, said : I am a shareholder in the Golden Gate Water Race Company, and have been representing my interest since October last. I am manager of the company. 1 have an understanding with Thomas Sims to use his water. In October last Mr Holt spoke to mo about ■using the water of the Wai Keri Keri Creek. 1 was not aware of it at the time as 1 had given positive instructions that it was not to he interfered with. I am not aware if the right of water from Leahy’s Creek has as yet been turned into the race. The companyhave not allowed Murphy and party to use the water. The company has use;! water belonging to the Maimherikin. Company by consent. Our race is not yet finished ; there are two men on it at work. By Mr Wilson : 1 was working on the race in 1872 and 1873 at Leahy’s Creek. The Mamiherikia Company have the first right of four heads from Leahy’s Creek, and lift it about three-quarters of a mile below our head race.

Robert Scott gave evidence as to defendants’ race not being completed, and as to defendants taking the water from the Wai Keri Keri Creek, and that he and Mr Feraud had lodged an application for the water now applied to be cancelled. John M'Nally, sworn:.was one of the original shareholders in the Golden Gate Water race ; the company are now working in Connew’s Gully sluicing ; in Connew’s and Hopeful gullies the company have been working the last three years, I sold out of •he company in February last; the water used by the [company has been the surplus water of the Wai Ecri Keri Creek. The company was once fined for using this water. While using the Wai Keri Keri water the company was delivering into the creek as much water as they took from Yankee Flat. We adopted this course to ■enable us to get gold to pay our way. The company’s race from Yankee Flat to the claims was finished in February last. I cannot say if the race from Leahy’s Creek is finished. Ours is a second right from Leahy’s Creek. There are no guage boxes along the course of the race. Murphy and party may have used our water from Middle Cree, they have the second right from Middle Creek. The wording of the certificate stating that our race commences at Leahy's Creek with five heads, thence ta Middle Creek one head, is an error, as Middle Creek is farther away than Leahy’s Creek. Our application for the race was made in 1872, and the estimated time for completing it twelve months'; not having finished it in six years was not neglect hut a miscalculation ; the company originally consisted of six men, and all worked on the race for fifteen months, finding ourselves then getting into debt two of the party left the race and went sluicing with watei from the Wai Keri Keri Creek; about twelve months after two more left the race, the otner two have over since remained on the race. Contracts for making about ten miles of race have been made, at which eight or ten men were employed. The Colonial Bank offered the company money but they did not accept it. The company had no intention of abandoning their rights, nor did they think their rights were being endangered by using the Wai Keri Keri water. We obtained gold to the value of 1.1200 to LI 500.

By Mr Wilson—l decline to say if there was any profit out of the gold. I will say we did not make wages. The claims we worked are in connection with the race.

Patrick M'Nally was next examined, and gave evidence corrolcrating the above, add-

i»u that the application before the Court w vs a second one, that the Company held a prior one, and that the three contracts on the race,were 258 and 31S chains, let to Thomas Crawford for LIOG 14s 6d and L 127 4s respectively ; and 350 chains, let to J. Armstrong for Ll3l 5s ; and that the Company had no intention of abandoning any of their rights, and that in working at the claims they did so to raise money to go on with the race.

Janies Holt, holder of a water right from the Wai Keri Keri Creek, deposed to defendants depriving him of water, and to the fact of suing them on one occasion, and getting them fined. .

This closing the plaintiffs’ case, Mr Wilson rose and said that no case had been made out to answer as the rights attacked were but secondary : and further, that nothing had been advanced to show the slightest intent of abandonment. The Warden said, before he would venture to cancel a right gross and wilful neglect must be proved, and in this case there had not been any such a thing shewn. He must dismiss the case with costs. Feraud v. The Golden Gate Water Race Company.—Claim, L2OO, fora wrongful diversion of water from the Wai Keri Keri Creek, from the 7th of March to the 2nd of April, to the plaintiff’s detriment. Mr Wilson appeared for plaintiff; and Mr Baird conducted the case for the defendants.

J. C. Chappie, sworn, said—Am auctioneer and agent. I know plaintiff’s Monte Christo Farm. Was there on Sunday last, and this morning, plaintiff shewed me his water race ; it commands the whole of the cultivated portion of +he farm. I was also shewn a lot of fruit trees planted last year. I counted 89 dead in three rows. In another row there was only one alive. There were also a number of grafted trees dead—the trees were worth 2s Cd each. There were also a lot of vinos languishing for want of water. Six large fruit trees were also dead, and of forest trees a number were dead. I consider if they had had the proper amount of moisture they would not have died. I was also shewn a meadow of about 18 acres, there is nothing in it except alongside of the race. Had it had water for the past six weeks there should be a weight of hay threequarters of a ton to the acre on it. By Mr Baird : Assuming the trees had had a fair amount of moisture up to the 7th of March they should not now be dead. From what I could see the trees should have had water two or three monts ago. In England ground is irrigated for manure in October or November, here it should he doue in May or June. Treesdo not require so much water in autumn as at other

seasons. The ease was then adjourned till Saturday morning at 10 a.m.