COBDEN.

Grey River Argus, Volume IX, Issue 682, 2 June 1870, Page 2

COBDEN.

Wednesday, Jowl. (Before C. Whitefoord, Esq., R.M.) • . IMPORTANT DECISION. ,; ,] Montgomery v. Miller. — This waa a civil action, heard on Tuesday, in Which the plaintiff sued for L4O 10s, as tolls for the use of the horse-track on the bank of of the Grey River, under a protection held by him from the Nelson Government. "The hearing occupied the Court all day, and the Magistrate reserved his decision, as this was a most important case, involving a number of others, in which the claims for tolls amounted io over a thousand pounds. On Wednesday afternoon, the Magistrate gave the following decision^ which will explain fully all the facts of the case t — - He said : This is a case brought by Alex. Montgomery, the complainant, against John Miller, a boatman, defendant; and the complainant seeks to recover the sum of L4O 10s, for the use of a certain protected track granted to Alexander Montgomery, the complainant, undet certg&i conditions, published in the Nelßon Gazette of January 23, 1868, the protection having been granted under Section XIII. of the Gold Fields Act, 1866. Fibm the evidence of complainant, it appears he could not recover (even if there was no defence to the action) from the tim» he first had the grant of the protection, hie not being the possessor of a miner's right or boatman's license, as laid down by the CXH. section of the Gold Fields Act. This being the case, we find that the complainant can only sue from the date of a miner's right issued to hijn on 16th March, 3868; and it is from the date of this miner's right that the complainant claims, and up to the date of the expiry of the Gazette notice, namely, December 31, 1868; The Gazette notice grants to Mr Montgomery a certain privilege, namely, to form a towing-track on the bank of the river Grey, from Cobden to Ahaura, and to charge certain tolls— los for each horse using the track. It isj admitted by the defendant that he went up the river a certain number of times, though not so many as charged by the; complainant^ the defendant being some twenty trips ; and in defenoe, it was further contended that the track claimed by; Montgomery was never used by the defendant, and the defence was ranged under four heads — Ist, that Montgomery proves no track ; 2nd, that the track has not at all times been kept in proper repair; 3rd, that, by the rules in force in 186$ the river was protected for a certain, distance, namely, two chains ; 4th, that there was

r lx ' ;••■'" '* * * ■* / *- " ' na. ,. proof „ t of- , .defend^ using it. \ N% lo flecideihe case- it'is. obvious that th.dugtivthe.-cdmpklnatit must prove', at all events, that the firsij,, sef ence js^incorrect, he must first prove a track before heVfcafrclaim &llKtiypi>§vlias used it, and it will be necessary to also consider, if this be established,, that the complainant also kept the conditions on which the t^lc|i&^g|a^ted^ bejeauae, 4f these conditioftsSv'exff JLotjJbinding iit itll> . they were not binding in any, and the complainant would not be limited to'his, lOs^tlpU.ibui QOuUL of couraej-suo for= LI . o«Ba^0^4» liw Y n(U}mJ<3fo i so& the toll on certain conditions, which I take it are binding on him. Certain of these conditions would ajdrhrt ariyone Bay? ing coinpejisjrtionf #c.,|.to |iaye a* sh"ard in the track, but the defendant does riot claim an^... Of those^ _The third hea|[ oy de;feric^rnay be at pnee^ I. thirik:, Betwi"*bne > sralpfor I do^not consider- it was proved that the track, if any, was not perhaps the proper distance from the river, and it would be a point to consider if that rule could be considered binding agajnatth,e Government. The second unebf' defence is also born out by very ipfe&k testimony htstong a hbst 6$ witnesses called who travelled up, the river, only one facoident .being stated;' to have occurred, and , the first an,d . fourth . may be, I think,' taken together, arid in these points vl shall - r decide the case, coupled with the fact that if a } track could be ' i considered to be proved it would not be the one granted by the Gazette. Now I found it proved by all the witnesses that part of the land. was on the Canterbury side of the river, and it was contended that the Superintendent of Nelson could grant such protection. . I..w.as,ppppsed to. this view of the^case, and, on looking over the ' notice* 'iri_the. Gazette, we find that the bank 1 of mho river is distinctly mentioned, clearly showing that it was not so intended, o The facts are that, under the protection, Montgomery made his track, if her; made One, not from Cobden, but, by his own evidences from the gardens (and in. places on the. Canterbury side of the river) ; amd, for' the defence, it was contended that the coalmen made the track, and from 1 there up the Government made it round the terrace. Now Montgomery proves no consent; from the Government f«r him to use this portion of the track, and I find, on a :very careful view of the case, thaf he has failed to prove having .constructed the! track as granted and gazetted, and cannot' therefore recover. The judgment will, therefore, be for the-tieferidarit. 'liahi glad an opportunity can be givien to appeal.