WARDEN'S COURT, AHAURA.

Grey River Argus, Volume XII, Issue 1338, 12 November 1872, Page 2

WARDEN'S COURT, AHAURA.

Friday, November 8. (Before Warden Whitefoord.)

Sinclair and Philpotfcs v. Arthur O'Keefe. — This was an adjourned case. The action was to recover L3O as damages for injury- done to a reservoir of the complainants' at Cradler's Gully No. .1, TryAgain Terrace, Nelson Creek, by allowing tailings and sludge to run into it ; and to recover L3O for similar injury to a- reservoir at Cradler's Gully No. 2, at the same place, with a prayer that the defendant should be ordered to cease interfering with the plaintiffs' workings. . From the evidence taken at the last hearing it was shown that the damage done tho No. 3 dam occurred in October, 1871, and to the other dam within the last eight months. The plaintiffs hold a prior right of several years standing, and the defendant, when he applied for a certificate of registration for his drainage head-race, was opposed by the complainants. The Warden at Camptown granted O'Keefe registration for his race, on condition that he did not injure or interfere with the rights -or workings of Sinclair and party, The defendant is working high up the range dividing Nelson Creek from Callaghan's Creek, and the complainants are sluicing lower down, so that the water from O'Keefe's workings in its natural fall must necessarily : pass into the creek in which the complainants have their dam. The damage alleged by the complainants was caused by the sludge and tailings brought down by the tail-water of the defendant partly filling the dams, and displacing the water which should be available for washing purposes. Evidence was given to assess the value of the water so lost, and it was swqrn to be worth LlO per clay to the complainants for the full da,m, but the value varied in proportion to the quantity of water lost. The defendant admitted that a certain quantity of debm was carried down from his workings into the dams, but he denied that the damage done was as great as the estimate. He alleged that he had used every reasonable precaution to prevent injury to the complainants by putting in brakes of brushwood and other material between his workings and the clams in No. 2 Creek. These brakes, . or false dams, were so constructed that the water filtered through them while the greater part of the rubbish was retained and prevented from running into the reservoir. He admitted he was directed when he got his certificate for the race to prevent the sludge and tailings from his workings injuring the complainants, and he made every endeavor to do so. He was willing to flume his tail-water across the dam and workings of the complainants, but they, the complainants, refused to permit this, as they' wanted the water. The defendant also alleged that the complainants, if they had so chosen, could have prevented the injury occurring by putting an escape valve into the lower part of their dam and allowing the .reservoir to be thoroughly cleared periodically, by taking advantage of the surplus water during the frequent A good deal of evidence was taken 'q. a this point. A witness named Livingstone, who has a dam below Sinclair's in the same creek, said a remedy could be found in sluicing the dams out during a flood, but he had' serious objections to such a course. He was requested by the Warden to state his objection, but he hesitated in doing so, and the Warden insisted upon an answer, which wa3 at length obtained, The witness aaid.that he was summoned before his Worship on a former occasion for sluicing out his dam, and allowing the contents to run into the dam of another party below him. His Worship fined him L§, besides giving him a l( strong caution," arid ' he-^the witness-— therefore had an objection to run the risk of incurring such grievous penalties again. !» Henry Lewis, the Government surveyor, produced a sketch plan of the locality of the complainants' reservoirs and of the defendant's headrace and workings. The Surveyor corroborated the statement that the defendant did put brakes into the creek above Sinclair's dani, for the purpose of intercepting and retaining as much sludge as possible. Ho estimated the cost of clearing out the dam at LIC, and explained that the dam of the ; complainants was built right across the creek which had steep sides, and it was impossible to prevent some rubbish going into the dam, and at the same time save the water. The only remedy would be a system of escape valves in the dani3, and all parties would have to arrange to have a general clearing out at certain periods. The portion of the Surveyor's ovidence with reference t ) the escape valves was corroborated by

Richard Larkin, Michael Ward, Michael Howe, and Thomas Hobin, and each of "he witnesses confirmed the evidence for the defence with respect to the brakes erected by the defendant. Mr Staite addressed the Court on the' evidence adduced for the defence. Mr Jas. Sinclair replied, and again pointed out that his party held their rights unconditionally, and that the defendant, whose rights were subsequent and inferior, had not complied with the terms of his grant. - The Warden, in giving judgment, reviewed the evidence at length, and said the case was one of great importance, and it would form a precedent in dealing with future disputes between terrace and creek sluicers. As it was not unlikely a decision affecting the safety of so many titles and interests would be reviewed on appeal by a superior Court, he had given the evidence his most earnest consideration. The defendant admitted he had partly filled the dam of the complainants with tailings , and sludge, thereby inflicting a certain amount of injury ; but, on the other hand, it was not denied by the complainants that he had erected brakes, or false dams, along the course of his tail-water, with the intention to prevent that injury. The Court had the assistance of the evidence of the Government Surveyor, and of tli3 professional estimate of that witness as to the amount of damage, the position of the properties involved, and the best means of effecting a remedy. The evidence on both sides did not materially disagree as to the amount of damage done, or aa to the best plan of preventing a recurrence of the injury. The decision would turn upon the point as to whether it was not incumbent on the holders of registered rights to use due vigilance and precaution to prevent injury to their properties. It would be contrary to the spirit and intention of the Mining Regulations if the Court decided that parties who erected dams or embankments in the beds of creeks should not be compelled to receive such quantities of sludge and other matter as would c<Jme dpwn with the natural flow of the water, as well as the water itself. If the Court ruled that proprietors of dams should receive the water only, it would lead to a gro3s monopoly of all the auriferous ground drained by the creek in which the reservoir was made. It might be contended that a hardship would be. inflicted upon parties by compelling them to make flood gates or escape valves in their dams, so that they could be thoroughly cleared out at suitable times, but it should be remembered that owners of dams possessed certain privileges, in which they were protected. No one could interfere with the site of a registered dam, even although it might include within its area valuable auriferous deposits. There was not any clause in the Regulations to compel owners of dams to construct flood-gates in them, but on general grounds the Court would decide that holders of registrations for sites of dams would have to receive any reasonable quantity of sludge brought down by the water in its regular course from the ranges to the main creeks and rivers, and the onus of disposing or getting rid of this sludge and other matter would devolve upon the owners of dams. All parts of the Gold Fields were open, with certain restrictions to holders of miner's rights, and if it wouldbe^ hardship to compel creek workers to receive tailings from the ranges, it would be dealing hardly with those working on" the terraces if they were directed to run their tailings up hill. Parties erecting dams in the beds of creeks did so. with their eyes open, and they should take the surrounding circumstances arid future possibilities into consideration when they applied for certificates. The defendant in this instance had taken every reasonable precaution to prevent injury to the complainants, and it had not been shown that they exercised due vigilance in protecting their own property; Judgment for thq def endant ? with " the costs, ' of Court and expenses of four witnesses at LI each, with professional costs, L 2 2s. Mr Jas. Sinclair conducted the case for his party. Mr Staite appeared for the defendant. Notice of appeal was given by complainants. Messrs Richard Larkins, Michael Ward, Michael Hawe, and Thos. Hobiu "witnesses for the defendant in the above case requested the Warden to present the L 4 awarded them as expenses tothe Greymouth Hospital as a donation. The following applications were disposed of: — A. O'Keefe for a tail-race above Try- Again Terrace, Nelson Creek. Refused unless the applicant would undertake to turn the water into the dam of Sinclair and Philpotts.— John Asmess and party for a head-race at Spec's Creek, Antonio Flat. Granted.— George Turner for. a residence area at Antonio Flat. Granted.— Edwd. Francis and party, for a dam of 60ft x 160 ft, with 32ft walls, at Big Yankee's Creek, Little Grey. Granted.— A. O'Keefe, for headrace from a swamp at the head of Dry Gully, Nelson Creek. Granted, provided the race is subject to the Government Surveyor's directions ; Sinclair and Philpotts to hare the tail-watey if they require it. The Court was adjourned to the 15th November. .: ■