WARDEN'S COURT, AHAURA.

Grey River Argus, Volume XII, Issue 1369, 18 December 1872, Page 2

WARDEN'S COURT, AHAURA.

Friday, December 13. (Before Mr Warden Whitefoord.) INJORY TO A HEAD-RAGE.

J. Fitzgerald and party v. T. Pox and others. — An action to recover L 35, as damages for injury caused to a head-race of the plaintiffs by reason of tbe' action of the defendants. The alleged damage occurred in July last and subsequently. At that time the defendants were working at a tunnel at Martin's Creek, at tnei'Blackwater, in the Little Grey district, and the race of the plaintiffs ran past the mouth of the tunnel of the defendants, but some distance below it, on theside of the, range. The headings from the working of the der fendanta were shot out of the tunnel mouth so as to fall in the plaintifis race, and to prevent this the race wasyebyered : over by the defendants. Tbe case , for the plaintiffs was that the covering: put over the race was not sufficiently substantial to keep the dirt from filling the ditch, and obstructing the course of the water. Another ground of complaint watt that the drainage water from the tunnel of the defendants flowed into the race, and carried sludge and silt with it. The reason given by the plaintiffs for not bringing the action when the damage was done was that none of the parties were at that time in a position to pay compensation, but that they were now. The defendant* had abandoned the tunnel before the alleged injury to the race occurred, but it was argued for the plaintiffs that the defendants were liable for any injuries suffered by the plaintiffs at any time subsequent to the date of abandonment, for the defendants should have so secured the workings before they left that injury could not accrue through neglect in not doing so. A nonsuit was moved, for on the part of the defendants, on the ground that the names of all the defendants' were not stated in the summons. The Warden decided to hear the evidence for the defence before a ruling was given on the nonsuit point. The defence was that every.reasonable precaution was taken by the defendants to prevent injury :io the race. Good aud substantial timbeiK^Rtf^ used to form the covering.of the raCe/and; one of the plaintiffs party, Roger Hen- 1 nessy, was appealed.to by the. defendant/ previous to the abandonment of the tunne^T by the defendants as to whether every-V thing, was left in/safe order, arid he expressed his satisfaction with the precaution taken by. the defendants to prevent injury. One of the witnesses was positive that Hennessy was satisfied on behalf of his party, and he gave as a reason that when the member of the defendant's party spoke to Rhridy flennessy, he innocently mispronounced his christiati name and addressed him as as "Rowdy Hennessy," whereupon a fight ensued, and from this circumstance <he remem- . bered what occurred. , With respect to the damage from the tunnel, the defendants alleged they diverted the water running from the tunnel so as to escape the race, but the plaintiffs turned the stream, into the race again. . T-he . dants also deniefl thei? liability' for any= thing whjeh occurred after they-aban? doned the tiiinnel,'and one of them (Fox) observed that he might with equal justice be held liable for the results of a flood which took place in Gipps Land, because he worked a claim there seven years ago. The Warden, in giving judgment, said the defendants were justified in raiding the point for a npnsuit on the grounds, stated. It was desirable the names pf litigants, w|% the 'full particulars p.f ey§ry pause of complaint, should ,be din* tinptly set out in the summons, 'and in future this course of procedure would be insisted upon, unless good reason can be Bhown to the contrary. The motion for a nonsuit would be overruled in the present case, because the plaintiffs, from present proceedings, must have" known the names of the defendants. The evidence showed that every reasonable precaution had been taken by the defendants to prevent damage to the race, and the plaintiffs should have brought their action when the alleged damage occurred, instead of waiting until the defendp§3 had abandoned the tunnel. Judgment for the defendants, with goats and expenses. Mr Staite for plaintiffs, and Mr* Guinness for defendants. ' INCfDRY TQ A pA^I, , Owners v. Ularko.-r-^An action for L6O as damages for injury to a dam at Napoleon in May, 1872. The dam is situated immediately under the race cut by tbe defendant. A portion of the rape gave way, bringing a quantity of earthy and timber into the dam. There was virtually no defence to the action. The Warden made an order that the dam should be cleared out by the defendant in one week, and precaution taken against future injury. If the order were not obeyed the Government Surveyor would visit the ground and assess the damage sustained by the plaintiff. The Surveyor's /report would guide the Court in making an award. ENCROACHMENT. . M'Quillan and parjty v. M'Corniack and party. —A n action for compensation for the removal by the defendants of 35 loads of washdirt from the claim of the complainants at the Blackwater. Damages were laid at LSO. The quantity of washdirt taken was admitted hj the defendants, but r they objected that the damages, claimed were excessive. The evidence was confined to assessment of the value of the washdirt and the quality of the ground in the vicinity.' Thomas - Fox gave the result of tests made by him at the request of both parties in the drive where the encroachment took place. ' From eleven dishes taken at different parts of the drive, from the floor to the laths, he washed Bgr of gold, whioh he produced. The prospects were taken from sft of washdirt. Samuel' Wells corroborated this evidence. The Warden ' considered the encroac]imerit was unintentiohal on the part of the defendants, and t|ie fact of their offering to make reparation was in their favor. The defendants, would be fined L2 for the. encroachment, and the damages would be assessed at L 26. A verdict would be for the plaintiffarfor that amount 'Vith the amount of the fine, besides costs and expenses. Mr Staite for the plaintiffs, Mr Guinness for the defendants. . James' Purki3s applied for special protection for his share in a claim, racp, dam. &c, Callaghan's Creek. Granted, to b@ in force for two months.

A number of applications were disposed of, and the Court adjourned,

•''•Young Austin, 1 ' the^pedestrian, has. lately been in Invercargill, offering to run, ten miles within an. hour, c '