WARDEN'S COURT, AHAURA.

Grey River Argus, Volume XIII, Issue 1547, 21 July 1873, Page 2

WARDEN'S COURT, AHAURA.

Friday, July 11. (Before Mr Warden Whitefoord.; Darcy and party v. Jenkins and party. — A complaint that the defendants had unlawfully interfered with the head race of the complainants, . and also, with constructing a tail race to the injury of the complainants' property. The parties are working at Nelson Creek, the complainants being the registered owners of a head-race raised from German Gully and Brian Born Creeks, and terminating at Tobacco Plat.' The defendants are the holdera of a certificate for a tail-race which it took three years to make, it being in ; places 70ft in depth, and of great . length. The dispute was serious and important in, \ its result, and the consequences to both [parties. The Warden after "taking all the ■evidence offered, reserved his judgment- ; until he had personally inspected the I scene of the dispute at Nelson Creek. i Joseph Woolfe and party v. John IBrennan and party.— An action to reI cover damages for injuring a head-race at ■Antonio's Flat, Little Grey. The plaintiffs' claimed LllO. After a long hearing the Court awarded the plaintiffs LlO damages, which with the costs, amounted itoL22 375. Cunningham v. M'Grath.— The Court gave judgment in this case, which was reserved from the last sitting of the Court to enable the Warden, to visit the ground. The defendant was sluicing at Half-Ounce, on a terrace over a slaughteryard of. the complainant's, and the complaint was that the tailings were running into and injuring the yard. The Warden decided that the title of the defendant to the ground on which the enclosure was built was defective, and gave a verdict, for the defendant with 21s costs. In a similar complaint made by. .'.the! Eclipse Company (Ollivier and Co.) agfinst the same defendant, for running tasfigs into the creek, the decision in which was also reserved, the defendant was directed not to allow his tailings to run into the, creek or to divert the water, unless he took such precautions' as would prevent the workings of the complainants from being endangered. Friday, July 18. (Before Warden Whitefoord.) Petersen v. Doyle, Clauson, and O'Donnell. — A claim of L 33 for wages as a miner. This case, was adjourned from the lllh instant for the production of further evidence.. The defendants, with a man named "Colleran, were shareholders in a claim on the Orwell Creek lead. Shortly t after the claim was opened, Oolleran was imprisoned for debt at Ahaura, and the defendants, with the consent, it was alleged, of Colleran, engaged Petersen ta work Colleran's share. The nature au4 terms of agreement under which Petersen went to work was the r.rigin of the dispute. A considerable amount of- evidence was taken at the previous hearing, arid now a witness named William Kirkman ::> was put forward by the defendants, and he distinctly swore that he was present at Ahaura when Petersen agreed with Colleran, in the presence of Doyle and himself (the witness), to represent Colleran in the claim, and to wait for his wages "until they came out of the ground"— that is, until the claim began to pay dividends. Against this statement Colleran swore that he did not make any agreement with the plaintiff at Ahaura. He never ■ saw' Petersen until he (Colleran) returned to •--. the claim after being released from confinement. He then made an arrangement with Petersen, by which the latter wa&to, continue representing the share,. and he; was to receive LI per wee^ until; such time as, from the proceeds of the claim, he waa paid the wages due him for working under *he agreement made with the defendants. Colleran farther said that he was a shareholder only on sufferance,

for aa his name was not on the certificate of registration of the claim, he could not maintain his proprietary interest if the defendants chose to dispute his title. The defence was in substance that Oolleran was alone liable to the plaintiff, and that lie (the plaintiff) hf d consented under his agreement to represent, and in a manner hold, a lien on Colleran's share until his claim for wages was liquidated. Evidence was given to show the value and future prospects of the claim, by which it appeared the property was likely to pay better than at any previous time. The Warden in giving judgment remarked tipon-the contradictory nature of the evidence, and commented very severely \ipofl the action of the defendants, which he considered an attempt to shift the responsibility for the workman's wages on to a man who was not a registered shareholder, and against whom it would be impossible to recover at law. They permitted Petersen to work under an agreement which they must have known was invalid as far as Cdleran was concerned. If they had a Ivr'ia fide intention to cause a shareholder who was absent to have his share represented, a copy of any agreement made should have been filed in the Warden's office, but as they had omitted to take the precautions ordinarly observed when such matters were transacted in a fair and open manner, they must suffer for their negligence. Judgment for the plaintiff for the amount claimed, with costs and professional costs. Mr Staite for the plaintiff, and Mr F. Guinness for the defendants. W. S. Campbell v. Devery- and Gillen. —An action to recover damages for trespass. The plaintiff claimed L 5, and L 5 as special damages. The plaintiff is the occupier by purchase, of an agricultural leasehold at the Twelve-Mile Landing, formerly held by R. Darcy. The defendants have erected a building, a portion of which it is alleged stands upon the plaintiff's land. The defence was that the building, or any part of it, is not upon the plaintiff's leasehold, although it may be upon the road reserve adjoining it. 'For cqnUnuatwnofneiossee Uh page.)

The evidence as to the boundaries of the land and the road was not very clear, and. a witness who was called to" explairi matters made confusion worse confounded by intimating that "if any of them; (meaning the litigants) would tell hitri how far the house ran up the gully he would tell them whether the road .or the; lease was the widest." The further hearing of the case was adjourned to enable; the Government to make an examination; of the ground,, and report as to the! alleged trespass. Mr.-. Staite, for ■ the., defendants. " ' Pringle and Darcy v." Jenkins and party. — This was a claim of Ll5O as; damages for diverting water, from ; the plaintiffs'. head-race at German Gully No. 3, kelson Creek. The case was adjourned from the last sitting of the Court, 1 and in .the meantime the Warden had visited the | ground, and endeavored to make an equit- j able arrangement, but the parties would j riot consent. The circumstances of the .case are complicated arid peculiar. Th'ej plaintiffs are hydraulic sluicers at Tobacco jj Flat, . . Try- Again. The water in their head-race is collected from various sources |! —Brian Boru and German Creek No. 3, ! each contributing a portion for which they ' hold registrations. A supply is also obtained from the termination of a tail-race, one of two formerly constructed to a claim held at one time by Prettyjohn and party, and •' afterwards abandaned . Gi erman GrUlly bis been worked on two separate levels. or bottoms— one fifty or sixty feet deeper, than the other. , . The plaintiffs pick up the water running on the first or upper bottom. They hold a registered right for the water from the point of commencement of this branch of their race, but not fcr the old tail-race down which the water runs. The defendants, who are working oh the first bottom, a block claim higher up the creek; during operations connected .with ;the working-ofiheir claim, tapped an underground dam, and allowed the water to escape into the tailrace in the lower level, thus cutting off the drainage supply to the plaintiffs' race. The source of the plaintiffs' head-race being at a much greater altitude than the point of termination of the tail-race on the stcond bottom, the water was .entirely lost to theiri. Hence the claim for damages'.: The defence was that, although the plaintiffs may have suffered injury, the | defendants were not to blame, for they were working and held their claim in \ accordance with the Regulations, and did riot wilfully irterf ere with the plaintiffs' water-supply. They were merely working to the best advantage, and,' the* deep tail-race being necessary to drain their claim, they allowed the water to run into it. ■■■ They alleged it was for the plaintiffs to take measures to save the water, and they , (the defendants) would not offer any. obstacle to their so doing. ThVWarden said that when he inspected the'scene of thedispute, : he poiuted out that By the construction of a puddled wall or dam above the block claim of , the defendants, the water could .be diverted so that all parties could have the full use of it. Had the > plan he suggested been adopted much expense would be saved bothi Bides. The question now was, had the the plaintiffs a right to claim the water above the point of. contact of their headrace and the termination of the old tailrace. The plaintiffs claimed to hold the right to, the tail-water for 600 ft orTOOft up the tail-race, but he did not think any registration conferred a. right to drainage water for an indefinite length up a creek or gully. r ; The question of prior rights did not affect the case so much as the right of thei defendants to tap the under.—grbtmd .dam, which they contend they' were compelled to do to work their claim to advantage 1 .; He considered; they had a right to do this, but it was to be regretted that they did not consult the Warden or the Mining Surveyor before they tapped the dam, in !order that some alternative to avoid depriving the plaintiff of the water, .might be adopted . He • was of opinion , that the plaintiffs could not recoyer for injury sustained in consequence of the action of: the defendants in carrying on their workiin a bonajide manner. He .would ' like to 'see the point definitely decided as; to what distance 1 up a creek a drainage right could extend, or where the/limit should be fixed. Judgment would-be for the defendants with costs. The plaintiffs gave n otice of appeal. Mr Staite' for 'the plaintifls. . . John Brerinan applied for a certificate of ; registration for a tail race at Antonio's Flat, Little Grey. Joseph Woolfe objected ion :the; ground of interference with his head-race; After a long hearing, and the production of elaborately executed plans; i. the < application was granted, subject to Woolfe's right. ; -..."■■ V Patrick O'Connor made a similar application for the Teviot. -^Francis 'H'alliman opposed, but the Warden said froriT a personal examination of the ground he was. aware that had it not been for, the applicant and his party introducing, water to the Teviot, there would not be any xise for tail-races. They were therefore entitled to use water to the best advantage. Application granted. • ; , . John Trimble and party applied for extension of a head-race at Sullivan's Creek. Granted. Double areas of ground were granted to O'Connor' and party, Teviot : ; and Wilson and party, at Napoleon Hill. Eric Bostedt and party .were granted washing and machine sites at Half-Ounce. Sites fur dams were granted to Joseph Woolfe, at Antonio's Flat ; and to James Eaton, at Mosquito. „.; . ( .. Certificates for head-races were granted - to O'Connor and party, at Teviot ; and Burton and: party, at Lower Mosquito, Napoleon district. The latter party were also granted an extended claim. Andrew Craig applied for an agricuSturaMease of 74 acres of land at Haupaii. Recommended. ' Edward Fraser applied for an agricultural area at the Hauperi. Recommended. James Stewart .made a similar application. Repommended. The application of E. S. Lapham and W. C. Roberts, 1 tor blocks of agricultural land at the Hanpari, w.hich were adjourned from last. Cotirt day, were withdrawn. The larid 'would be applied for under other ;riames. Mr Staite said the great outcrj' whiph. had. been made that the land wa6 applied for, for speculative purposeß;.._waß'~^without foundation. The Warden said it was desirable to have the land taken up, but it was necessary to guard against alienating it for purposes of speculation. Capitalists could always comply with the condition respecting improvements, but the regulations were defective in not containing . a compulsory occupation clause, hence the necessity, of j dealing careftrity with applicationß. .',' . ,