SUPREME COURT.

Evening Star, Volume IX, Issue 2560, 2 May 1871, Page 2

SUPREME COURT.

May 2. (Before Mr Justiee Chapman and Special Juries.) BANK OP NEW SOUTH WALES V. J. L. AND C BURKE. This was an action to recover the amount of a diihonoured acceptance for L 650, drawn by A. M’Kinnon an I accepted by defendants, together with interest at the rate of 8 per cent, from the date of acceptance to the time of judgment. No defence was offered and judgment was entered for plaintiffs for L 742 3s. 6d. GREAT EXTENDED SLUICING COMPANY V. HALES AND ANOTHER. This is an action to recover L 3,000 damages for wrongful interference by defendants with the rights of plaintiffs to certain auriferous lands at Blue Spur, Gabriel’s Gully, Mr, Macassey, with whom was Mr. Stewart, appeared for the plaintiffs, John Wickham, John Mouat, Peter Lawson, and William Cummings ; and Mr. Smith, with him Mr. Howarth for the defendants Samuel Hales and Thomas Hind.

The declaration stated that the plaintiffs are a mining company, duly incorporated, and that since the year 1866 they have been and still are possessed of a piece of land situated at the Blue Spur, Gabriel’s Gully, containing 5 acres and 28 perches. The defendants are adjacent occupiers and miners and the declaration avers that they on, &c., wrongfully, carelessly, negligently, and improperly. and without leaving any proper and sufficient support in that behalf, mined upon and under and worked and dug for and got and took away gold, earth, soil, and mineral strata, contiguous and near to the said parcel of land, and caused the same to be and remain w’ithont any proper, or reasonable, or sufficient support for a long space of time, whereby a large quantity of gold, earth, and soil, on and under and belonging to the said parcel of land of the plaintiffs became loose and cracked, and subsided and gave way and became wholly lost to the plaintiffs. There is a second count, charging the defendants, that on, &c., broke and entered the said land of the plaintiffs and interfered with and disturbed them in the possession thereof, and dug and constructed a water-race through the said land and diverted water into the said race to run through and amongst a large quantity of auriferous earth of the plaintiffs, and carried away the same and converted it to the defendants’ own use. There is a third count, for the wrongful conversion of a large quantity of auriferous earth and soi l , the property of the plaintiffs ; and special damage to the amount of L 2,000 was claimed in respect of the loss of this auriferous earth by the plaintiffs. The defendants, by their pleas, denied several of the material allegations contained in the plaintiffs’ declaration, and that the plaint ffs ever possessed the land in question.

Mr Macassey, in opening his case, stated that on January 27, xS66, Wickham, Mount, Cummings, and M'Millen, obtained a lease under the Goldfields Act, 1862, of the ground in dispute, but finding that they could not work it at a profit, they amalgamated with the occupants of an adjoining claim, thus forming the Great Extended Sluicing Co., which company became possessed of all rights under the lease of 1862. The defendants were owners of the adjoining claim. Mining operations on the Blue Spur are conducted partly through the agency of water, and partly by gunpowder, and on the part of the plaintiffs it was contended that the defendants, in the use of these agents, had been guilty of the grossest carelessne -s. But that iharge was not relied upon as being essential or necessary to the plaintiffs’ case ; it was sufficient for the plaintiffs’ purposes if it were satisfactorily shown that they were deprived of auriferous earth belonging to them, he cared not by what means the defendants obtained it. It would be shown that on different occasions, and for years past defendants, in working their ground, had used enormous charges of gunpowder. On one occasion the charge was 2000 lbs. weight. A necessary consequence of the explosion was to shake a very large area of the land of the plaintiffs. After a lapse of time, this land became subject to the influence of the other agent used, viz., water; so that a large portion of auriferous ground of plaintiffs’ was carried down to the defendants’ claim, and was used by them. This land was ol a highly auriferous nature. A portion of it had been examined, and it was found that each cubic yard of it was worth Is 4d. The total quantity of which the plaintiffs had been deprived, was 2300 cubic yards, valued at over LISOO. The proceedings of the defendants were not allowed to be carried on without protest. Applications were constantly made to them to desist; offers were made to come to some friendly arrangement; but the defendants offered a steady refusal. The injuries to the plaintiffs property at length became of so extensive a character, as to render it necessary for a jury to determine the respective rights of the parties. If the jury found the damage to have been occasioned by circumstances over which the defendants could have had no possible control, their verdict should be for them ; but if it had resulted from the excessive or even ordinary use of gunpowder, they should find for the plaintiffs in a substantial sum. (Left sitting)