DISTRICT COURT

Grey River Argus, Volume XI, Issue 968, 2 September 1871, Page 2

DISTRICT COURT

Thubsday,; Auoust 31. • ; (Before His Honor Judge;\Varcl.)y DIAMOND AND PARIY V. MILLER AND party (better known as Venables ' ' "■■ . ' and party.) This was a case to obtain possession of ertain ground alleged to be held in excess y. defendants; the value of which waß fcated to be over LlOO. It was another ihase, of an action.recently heard to obtain, ome of the ground held by the well-known lising Sun claim. ■ r ; - Mr Harvey and, Mr Guinness appeared or the plaintiffs; Mr Perkuis and Mr Newton for the defendants. Some preliminary objections to the pleadings having been gone through, his Honor said that all he could do was, that in the event of the ground .being declared bo be held illegally, was to order the defendants to forfeit it, but he could not make any order that in the event of forEeituve the plaintiffs should take possession. ■••■•!• Mr Guinness then called. John Alexander Diamond, who said that he was, one of the plaintiffs. He remembcred'Sathrday, the 12th August, when he organised a party u£ six men to take possession of a portion 6f the ground held by Venables and party. It was in consequeude of a dispute over a piece of ground that he did so, and appointee] Monday, 14th August, to peg but the ground. Went iip'to Venablea and party's claim on the Stony Lead, and saw a man at work on it. He asked him if he was a. shareholder, but he would not give him any information. He asked the man to show him his pegs, and he did so, and told him that there were twelve in the party. Witness told him that he disputed the form under which defendants held the ground. Left shortly afterwards and saw the Surveyor, arid went with him to the ground about nine o'clock on the morning of the 14th August. He saw the same man as he had seen before, and asked whether he could see Venables. He said he could not, and witness said, " you will do in his place," and the Surveyor then surveyed the ground. He asked the man on the claim if he would re-mark his claim, and he said he would not. Witness told 'him that he would mark offa claim on the surplus ground, and did j so. Mr Beauchamp and witness then took the levels of the tail-race, and on the same day came intb'Greyn'iouth for a siinimoris. He told the man before serving the summons-that he had marked off six men's ground, and asked him if he was willing to forfeit" it, and he said he would not. He had .been a miner on tfre Coast for nearly five years, and was well acquainted with the Stony lead for nearly four years. The grouud formed a swamp on the surface lying between !high ground, There was a large terrace on each side, and rising ground about sft on the west. The claim was worked with a whinx and .a* shaft — washing on the surface. He had never seen the defendants' claim being worked by a tunnel. They had a tail-race in the shape of a tunnel. He believed the ground was worth more than LlOO. By Mr Perkins : He took the ground up on the 14th August with five othei plaintiffs. He heard them say they were taken up this ground, for he had seen ii in the papers and had heard 1 them talking about it. He was not present when the appeal case was called. Remembered the day it was. called,, and .on that day he decided to take up the ground. * By Mr Guinness: Did not know anything about the case till the day the appeal was • called on. When he pegged off the ground he told Hearty and party they might go in with him, as they had spent a lot of money over. it. ' Mr J. G. Beaueliamp said lie was a surveyor in Greymouth. He ..knew the Rising Sun claim, and made a survey of the ground. The adjoining ground was level and rather wet. Was engaged on 14th August by Diamond and party to survey the ground. Made a survey of the whole claim and the works. The plan produced was a true survey. The six men's ground claimed by Diamond and party were shown. The length of the claim was 720 feet by 60 feet.. , The .defendants' were raising washdirt up a shaft worked by a horse and a whim. Saw a tunnel tail race. The race was partly covered, partly open, and partly driven; A man w:ent down a shaft which was 15ft 6in deep. The width of the tunnel he trusted to the mau. The shaft was the last one before it entered solid ground; The man afterwards held it on the timber at the top of the drive, which was 4ft 4in, and therefore the height of shaft from top of tunnel was lift 2in. The width of the race at the extreme end was 2ft at the top and] ft on the bottom. The height was not taken there, but a little farther on it was 4ft high. Th_ere was no tramway laid in the tunnel., The tunnel was ! suitable for drainage purposes. He had been on the New Zealand gold fields about eight yeass. { ' You couldn't truck washdirt down the tunnel," The bottom of the

tunneliwas sediment and deadwater, and water 'was running from it. Did not think iit' was possible.vto wheel a barrow down the tunnel. It was a gentle fall from the claim to the beach. There were hills above the claim on the east side. At one-end the hills were a few yards from theiClaun, and on the other they touched Theophilus Mabille gave corroborative evidence to the last witness. He measured; the tunnel. He saw no washdirt carried out through the open or covered tunnel. The surface of the ground rose' from the tramway to the foot! o£a spur, a distance of 30 chains, which would give a gradient lin 30. He thought the ground was originally swampy, as on the eastern aide of the hill the gradient rose to 1 in 3. By Mr Newton - Was on the gronnd on the 20th July, and * measured the de* fen dants' ground jast Sunday. Was never down the. shaft. Tho ground was swampy before it was worked. Should think it was pretty wet before it was worked. It was not possible to work the ground without draining. Thought the, tunnel was the cheapest way of draining Some of the spurs projected on the N.E. corner of the claim, about half a man's ground* . : Owen Hearty was one of the plaintiffs in the action, and was present when Dia--1 mond and Beauchamp were on the ground. .-■'•■ Mr Newton' admitted <thaf defendants refused either to alter or remark the ground. By Mr Perkins : Michael Keating was one of their party, but would not have anything to do with the ground after decision was given against himself and party by the Warden and assessors. Michael M'Kenna deposed that de- i

iendants originalljf "&el& ground Styfy by rsft. They were using a whim on the ilaim. Did nob know the claim -till it 3trvick gold, but wag working iin tb,e, next ulaim, and saw the defendants, only forking with a whim. Had never seen' men coming out of the tail-end of the tunnel. There was only the one outlet to the tunnel that lie. was aware. of. , ..... „ * : By Mr Newton : He had no interest in the result^of the. presoht suit. 'The work to the south was a ; main drive, but constr. jictedgas.a iunnel.. , He.measure&it foe? 224 ft. The drives; were constructed iir tunnels. Defendants brought the dirt along the main drives in trucks to the shaft. The claim, could be worked fexpressly without' a tunnel. -, r / By Mr Guinness : The claim could be worked by a wheel and pump. The depth of the shaft was, he thought, 31ft. CJonld not say ; whether there was a : lunncl running right and left. ' • Robert Anderson : Was one of the defendants in this^case. The wnahdivt%as fetched along the tunnel to the shaft: There was no washdirt brought out of the tail-raco , tunnel. The tunnel was, constructed to drain the ground arid other purposes. By His Honor : It was simply put there to drain the ground. • By Mr Perkins : Commenced to., drive •700 ft from the claini, and drove up to a Bhaft and fun the dirt along a' tu'tfnel up to a shaft. Sunk shafts for air as .they went alohgVand took thi dirt hp through them. They could have taken the dirt out at the tajl-end pf the shaft, but it would have been too much trouble. The height of the tunnel was 4ft Gin by 3ft Bin. . , : ' By Mr Guinness : The tunnel was 20ft further inland than the main shaft. They had to lay tramways from one working to another. The tramways .were taken jip as they went along. ' * By His Honor : They sank a shaft first — opened out, and then drove a tunnel. Struck the gold first in the tunnel,, not in' the shaft. Not in the main-drive, but the ; tail-race tunnel. They. drove thetunnel up to the shaft where the whim was. This closed the plaintiff's case. Mr Newton -addressed ■ the Court at great length, contending that his clients eld the ground under Hoos' Regulations as a spur claim, and also by the Warden's decisions in the cases of MsGrath. and party and Hearty and party. The learned counsel quoted a number cf authorities in support of his argument, and urged that what was called a race and drive was in reality, a tunnel* -and that the claim could net be worked without a tunnel. '*"'.. Mr Perkins called Mr Tom Kenrick, who produced the various documents in all the cases heard in- the Warden's Court bearing upon the defendants case. Mr Uevell gave evidence as to applications heard by him in his capacity of Warden in che cases of M'Grath and party, Hearty and party, and Diamond and party y. Venablesand party. Michael Keating deposed that he was a miner working on the South Beach. He had a claim on the North Beach which he sold to John Diamond. Diamond told him that the claim did not pay. He took up girouud on the South Beach as one of Hearty arid party. . Remembered hearing the case decided against him in never had a conversation with Diamond about his share in the ground in the Rising Sun claim previous to the Saturday on which the appeal case was caUed. ..He. told, Diamond that he could have his share if he won it. He never had any other conversation with him about the share. He dropped his share after the appeal case. He told him that he would have no more to do with the ground after the ; appeal. By the Court : He told John Diamond that he might have his share. By Mr Guinness : He had no interest in the share. After the appeal case, he had no more to do .with the ground. Remembered a 'meeting being held at which Diamond' asked him fo go into the share, and he told Diamond that he would have no more to do with the ground. i James Butler was one of the plaintiffs of Hearty and Party against Venables and party. He ".hoved" his share up to Mr Guinness since. Keating said he was " backing out of it." Did'npt know when Keating said he would back* out, or give Tip his share to Diamond. - -„ Mr Guinness stated that he applied for a reinstatement of the case on behalf of some of the parties. Mr Harry Kenrick proved that Mr Guinness made, an application on behalf of the applicants to reinstate the case on the ]4th August. Mr Newton contended, without proceeding any further, that the two judgments iv the Warden's Court was a bar-to the whole case. : ' '• ''" ■• '' Mr Harvey arid Mr Guinness objected to this mode of procedure. Mr Perkins called , . ; Mr James Wylde, who put in apian of the ground, and explainedthat the tunnel was properly constructed. ;':,,,•■: The Court then adjourned.