PETITION OF RIGHT

Hokitika Guardian, 1 April 1921, Page 1

PETITION OF RIGHT

A SUPREME COURT ACTION

THURSDAY, MARCH 31st

The hearing of the following ease was commenced at 4 p.m. before his Honour Mi- Justice Herdman.

Kapiton Gold Dredging Coy. v. His Majesty the King. Mr Joyce with him Mr Kitchingham for petitioner; Mr Park for respon■dont.

A claim for £952 12s sd, general and special damage arising out of the Company’s dredge at Knpitea Creek. The ease was taken before, his Honour, without a jury by arrangement of Council. CASE FOR PETITIONER, Mr Kitchingham' said the suit arose through the breaking away of several by-washes of the Government water race at Big Dam. As a result of the break away it caused a great inrush of

water to the Knpitea Creek, causing a very high flood. There were ten gates across the bvwash. On the occasion (25th April 1920), seven out of the ten carried away. They would prove that

the structure was rotten and crazy to a degree. As a consequence of the addition of that vast volume of water, the 1 dredge was overwhelmed with debris

and was stranded. As a consequence j for four months it was out of commission. The paddock was also filled in, and the dredge had to do a lot of dead work cleaning it out. causing considerable loss. Evidence was led as follows: Frederick William Cox, harbormaster at Greymouth deposed the register (pro ilneed) was the meteorological record kept by him at Greymouth for harbor and Government purposes. The rainfall record is taken at 9 a.m. for the | previous 24 hours. J)n 24th April i 1920, the rainfall was .01 inches. On the 25tlv it was 2.23 inches, and it was raining at 9 a.m. that day: oil the 20th it was 3.18 inches. The early part <>r the record was kept by /’opt. Connor, who is dead. The registei shows in March 29th.. 190-1 the rainfall : was 4.5(5 inches: on June 24th 1905 the ! rainfall was -1.75 isches; on June 21st. ' mil. it was 1.0 inches: on Felt. 9t.li,

1912 it was 4.12; April 15th, 1910 it was 0.55 inches; Jan. Ist 1918 it was 5.08 inches.

To Mr Park. Had been keeping the records for 51 years. On 27th April 1920 it was 1.0 inches. William John McTlroy deposed ho resided at Christchurch. He was a

shareholder of the Knpitea G. D. Coy. On 25th April 1920, the dredge was working about 1 miles above the railway line, on the claim.

(It was admitted the Company had a special claim at Kapitca Creek of 100 acres under the Alining Act on which prior to 25th April the dredge was working.

| Tliroc shifts wore worked daily. W it- ! ness had had a varied experience of ! mining on tl.o West Coast. Visited Mm dredge on 28th April. Found it silted up. Also visited the dam site on 10th May. The dredge was silted up. one of the pontoons was full with a quantity of silt covering the pontoons, the dredge lying at an angle of fully .10 degrees. Three of the pontoons were completely silted np with about two IVcl of silt, above one of the pontoons. There were flood signs almost to the rooting in one side. The position was due to an abnormal quantity of water that had come down the creek. The dredge was then unfit for use, and in nu 'apparently hopeless condition. A meeting of directors was bold, when it was decided *" attempt to float her. This was eventually accomplished. It cost about C7,0Q0 to build the dredge. The dredge was out of commission from 2oth. April to some time in August. Previous to flic stranding the dredge was paying fair returns. Everything possible was done to refloat the dredge as expeditiously as possible. On 10th. May went t„ tiie Pig Dam with J. Taylor. Found Andrea Barratieh there. TTo had been in charge of the dam for years, on he half of the Government. It is a large dam and of great depth. On the north side there is a bvo-wash. with ten gates each oft by 3ft. high, operated by a w'lpel and screw. Found three gat-*.--intact, The others he did not see. Seven gates were missing. Tie examined the structure on which the gules were worked. Found the uprights were so rotten that pieces could be picked out with the hand. Had a conversation with Barratieh who said he was m oluii-rro of tip. dam at the time of the accident on behalf of the Government. That he came out about 11 a.in. with the intention of lifting the gates, as bethought there was going to he a flood. When he got to the gates he did not find much water and decided on leaving the lifting till after dinner. When he ciune it again lie .tried to lift the gate-. In- found the ■ ressure m: gie i that lie could noi lift them. Shortly after some ot the gates got washed muiv and he w.-nt to report to the manager of the water races at Kuinara, and when he came back there' wfero only three of tin- gates intact. Witness said the structure when he saw it was ~ih very had order. It was made of red pine li,. thought. Visited the dam seven days later with .). McKay, T. Taylor, G. I). Wilson and Tlios Parfitt. The only difference lie saw then was seven gates stacked on the dam site The rods were in :i bouse, some being bent. Mr McKay made an examination Hi the events of the gates being carried away the water would go over ire by wash . into Kapiton Creek, thence into K a pi tea Creek and thence into Knpiten Iredge. It was _ about 3 to 9 miles from the dam site to where Hi 1 dredge was. Before that none of the floods had the dredge any harm TTutramway bridge of the K.Tv. Sawmill Coy had 2 or 3 stringers washed away. Th 0 bridge had been constructed for many years, The dredge had been

working since ]9lO. Tlie dredge had been properly moored previous to the accident. The Court adjourned at 5.10 p.m. nil 7.30 p.m. EVENING SITTING. His Honor took his seat at 7.30 p.m. \V. J. Mcllroy continued his evidence. To Mr Park —The dredge was in good repair at the time of the stranding. Now owing to being tilted and turned over the ladder was bent- and it would cost £2OO to straighten her. No dividends had been paid since the stranding. On his visit to the dam he surmised that the gates were washed

away. Andrea Rarratich deposed he had been looking after the Rig Dam for the past 14 years for the Government. lie knew tip. bve-wash at the dam. There are ten gates, sft 8 by 3ft. Part of his duties were to screw up the gates during llood time. When it was raining he screwed up some gates and if the rain continued h e opened up some more. If the water in the dam was i 8 inches above the floor of the byewash and it was raining he lifted some gates. Over ten years ago- three gates were broken and he pub in false gates. Never got any instructions from Mr Rochford about lifting the gates. He remembered April 25th. last. It was raining a little in the morning about 8 o’clock. Went to the bye-wash. Did not lift the gates. Mr Robert Atilt -or, before Faster told him Mr Rochford hat! said the dam should b t . kept full. On this morning there was 2ft. of watei in the bye-wash. Between 2 or 3 o'clock lie left his hut thinking that the dam would he full, and whether or not he was going to lift the gate; anyway. Went on to the by-wash at tli ( - centre and started to screw to lift the middle gate and away went one, tvi three of the gates, washed away by the water, about 200 or 300 heads of watei going through. Then went and cliang-

ed and went to Kumarn and told Air Rich ford to tell him the live-wash had hurst and three gates had gone. Ho said tins was no time to come (dusk'. Witness replied that if he liiul come in the morning he (Rochford) would lm-(, said he had been in bed. Waited three clays and then Air Rochford ' out out with him. He then found that seven gates were gone. Pressure »f watei' caused the gates to hurst. If h< had screwed up the gates in the morn iug the gates would not liavo burst The boss had told him to keep the dam full and he did so. To prevent the gates from bursting ho put a rail across from side to side to strengthen them. That was 9 or 1(1 years ago. The timhur was rotten, like pumpkins. If anyon,, went up ho did not think tliev would find a solid post. The timber produced was similar to that which Taylor took away and similar to Ho rotten timber in the structure. 'Yhen witness went out on the Tuesday with Air Rochford witness asked why he gave the order to keep the dam full and Air Rochford said that was no question. Witness says that was what he wanted to know. The water that went out of th,. dam would go nt ■ another Government dam and over the top into the Knpitea creek past the Kapitea dredge. All th,, country from the Wainihini'ii drained into the dam. To Air Park ly with Air Rochford. He called him had names in the Government office. Alsnit 2 or 3 o'clock, the water was tip 3 feet to the top of the gate. Then he went to lift the gates. He never lot the water so full before because 1 ■ knew i(t would biM'st. Thousands i.f heads of water ran into the dam when there was heavy rain. Aloro wnfn would have rim out of the gates had been properly lifted, instead of being forced out at the bottom. Re-examined—H,. lifted sometimes 3 gates sometimes (5. ami sometimes tie whole ten. according to the rainfall. James AlcKav deposed he was an authorised surveyor tit Greymouth. On 23rd. May went to the big dam. Inspected the bye-wash. There wer t > 10 gates in the live-wash. The guides holding the. gates were about 2 inches. There were three gates in position u the time. The condition of the timber forming the guides,'the studs and cross beams was very rotten. The gates were in good order. The little bridge that one stood on was also very rotten. Th,-. guides were very decayed and pieces of (the timber could he pulled away with the hands, and he could not understand how they could withstand milch pressure. After passing out of the gates tli,, water went over an apron and then dropped 20 feet into the Kapitca creek gorge. He thought that the water may have been safety held till it was 18 inches high. In the even) of three being a break away as slated it would mean a body of water 35ft. hv 3ft. running away, till th,, height of the dam was lowered. The flow ol the water in conjunction with the heavy weather at the time would endanger a dredg (1 down the creek. Subsequently, a week later. visited the Kapitca dredge. Found it stranded with a heavy cant of 5 inches to the foot. One of thf headlines was holding otherwise the dredge would have capsized. The pontoons wore about 7ft. deep. There was great evidnee of a big flow of water down the creek. The. creek was about 3.1 chains wide. The rise of the flood was about 6 feet on rn average, judging from the marks on the trees. Tf there had been a flow of water 85 x 3 from the dam then it would undoubtedly ho detrimental to any dredge. To Air Park— The sudden release of the large body of water would undoubtedly he a danger added to toe Hood that prevailed at the time. I he dredge was about the middle of 'he valley. Joseph Taylor deposed he was a min. ing investor residing at Oobden and a director of the Company. He visited th,, dam with Mr McTlroy. Found seven of the gates out of ten were gone. T" , Vets were in position th,« bars

being bent. Witness generally endors'd the evidence of Mr Mcllroy, as to the conditions and the interview with ‘3a rratich. Witness on his second visit took samples of the rotten timber m the structure (produced). Th 0 Court adjourned at 9.45 p.m.

FRIDAY, APRIL 1

His Honor took liis seat at 10 a.m. Edward James Rundle deposed he was secretary of the Knpitea Gold Dredging Coy. He produced a statement showing cost arising out of the stranding of the dredge, amounting to £•(532 12s Id. It was out of action from April 25th to August Kith. The item £419 was for labor, taken from the wtiges sheet. The estimated cost of repairing ladder £75, had been exceeded and now would probably cost £2OO. There was nothing included for reopening the paddock, which he estimated cost’ about £l2O, taking about a fortnight. He produced the certificate of incorporation of the Company. To Air Park—The dredge was kept in repair always while working. He could not give particulars of the damage done. The last dividend was paid in .Jiilv 1919.

Gardiner Wilson deposed he was a sawmill manager living at Greymouth. He had been closely connected with ventures at Kapitca Creek for years. In April 1920, he was manager of the K.K. Sawmill Company. They had a tramway bridge across the Kapitca Creek for five years. After April 25th found the flood had washed away three piers. The piles had been driven 12 feet. They considered the bursting of the dam had caused the damage. Visited the dredge about the same time and found it stranded. When the flood came she was on the north side, hut with the strain swung over to the south side. There was about 8 leet ot stuff across the headline, trees and debris. It was evidence ol a tremendous flood. It was the biggest flood he had seen there, lie thought from the evidences that he saw, the flood was not all caused by rainfall, hut by the sudden release of a large body of water, such a body of water as would be released it the gates of the bvwash of the dam burst-.- Big trees were uprooted and left no the side of the river hank. He had never seen such destruction hciorc in his experience ol twenty years ol that creek. Am a director and large shareholder of tTie Company.. In ordinary normal floods the <1 re Age would go on dredging through the day and. night, the tailings hacking up the stream in the form of a lake, and so protecting the dredge, tn this flood the whole of the tailings were swept away, so the dredge was at the mercy of the flood. Considerable damage was done to the ladder, the dredge being on edge in the shingle. It was nec&ssary to drain tho water aw;:y and excavate the debris from underneath, and then to build a dam to float her again. Previous to thr accident ho had fears of damage from the dam. He did not, see any damage done to other creeks at that time

To Mr Park. —The dredge was moved on the north side and the strain caused it to swing to the south side about two chains.

Ernest Alexander Wilson deposed )e was formerly dredgemaster oi Kapiton Creek and was now farming. Ho In >1 10 or 12 years ,4ose acquaintance with the valley. On 23rd. May last visit's! the dam and found the gates wcv carried away. The structure was vnv rotten, some of the guides being earned away. Th,, structure was entirely ft • suitable to retain three feet of water Later saw the dredge and he considered her practically a wreck - , some of '.he creek running through the dredge Debris, trees, gravel etc., covered pan of the di'cdg,, to a depth of four tec*, and file pontoons were silled up w-’:h graveld—The .asbestos covering of the boiler had been torn off. At normal times th,, creek would be only angie deep. To Afr I’ark-The Kapitca creek runs about 7 miles from the road to the bridge. It is a fairly rapid stream, with many turnings. It must have been th,. biggest llood in the ere-It, led higher than, any other he had seen.

John Bla neb field, deposed he was winehtnan on Kapitca dredge for five year. Remembered 25th. April. The dredge knocked ofi work at midnight on Saturday. Went up to the dredge on Sunday at 3 p.m. to attend to the (ires. The engine-driver Robert Cain accompanied him. There was an ordinary fresh in th,. stream. It had been raining in the morning, an ordinary wel day. Had no difficulty in getting aboard. The dredge was to the north side of the stream, partly sheltered by a hank. Put coal on the fire, went round to see there was no watei in tin pontoons and examined the lines and found them safe. The dredge was moved with one headline and four side lines The headline was fixed to a Ire,, 10 chains awav. Two side lines veto fixed to trees on the north side, and to two trees pn the south side. I he not th side lines were about three chains long and the south lines 5 to 6 chains. Left Ibe dredge at 4 p.m. There were no indications of anything unusual in the conditions. There was a fair flood. D was raining when he was going home Considered the dredg,, was safe against floods; On Monday morning reached Hie dredge about 6.45 a.m. Could see the dredge had a. decided list. Walked along the tram line to the dredge an found a small bridge washed away. This made him think there must have been sudden rush of water. Got to u ■ in 50 yards of the dredge anil saw sh. had been partly wrecked. Then went back- to inform the dredgemaster and others. The water was running over and through the dredge. About 9.89 went back with the dredgemaster. The headline was very light, covered with timber, scrub and debris. Th,, ladder was piled up with timber and scrub. This pulled, the dredge down by the head. On the Tuesday morning get aboard. The dredge was then

stranded. There was 4 feet of gravel on the north side of the port pontoon and the pontoon was full of gravel and silt. r Hie starboard pontoon was practically high and dry. Saw the mark' made by tbe flood waters. They were very high. On the morning of the 25th., the approach to the railway bridge was washed away. There was no railway traffic across the bridge that day, trains running to each side. During the flood the dredge boat was washed up on to the tram. Considered tlijc breaking ..away of the gates of the dam would contribute to the damage. AVorked for four months lifting the dredge. Some of the men left, and now they did not have a full crew to work three shifts.

To Air! Park—Could not say how long the water kept high, but it was down on Alonday morning.

About the dredge he considered it showed about 6 feet above normal level. Considered that green trees washed down the creek, catching on tho leading line and the ladder caused ‘he dredge to go down by tbe nose, and the pontoons then filled with water and gravel. Saw the creek last at i o’clock on Sunday night. The flood was then very high, much higher than at 4 o’clock.

Francis Carter deposed ho was dredge master at Kapitea dredge since November 1919. Was on the dredge on Saturday. 24th. at 4 p.m. Came from Hokitika to Kapitea on the 26tli. On the Sunday afternoon there was no substantial fresh in the Hokitika river, so he considered'there would not Ik> any fresh in the Kapitea. Went- with Blnvlifield on the Alonday morning. Found a couple of small bridges washed away and five or six chains of tramway. Considered the flood had risen six feet. AA’hen he got to the bridge be considered it must have been n sudden rise and fall. Considered it must have been a wave. Next day went aboard He dredge and found the pontoon covered with gravel, the dredge looking hopeless. Abide arrangements to refloat the dredge, and got it to work by August 19th. Die expenses submitted were those expended in putting the dredge in operation again. It cost about a fortnight’s dredging to clean out the paddock.

To Mr Park -Portion of the tramway carried away was on the tailings on the north side of the creek, and about three feet over the normal level of the creek. The ropes were tight after the accident," showing she was properly moored. James AV. McKay, recalled, said he estimates roughly that the length of the creek from the dam to the dredge would be 10 to 12 miles. He guessed there would he a fall of about 30ft. to to the mile. It woujd probably be three to four hours before the water from the bye-wash would reach thq, dredge. This was the case for the petitionm-s. THE DEFENCE.

Afr Park questioned the jurisdiction of the Court, as it was a matter con-

cerning a special claim granted under the Mining Act 1908, which was under the jurisdiction of the Warden, and therefore the Supreme Court had i o jurisdiction. Afr Kitchingham submitted the ease was governed by the Thonipson-Bullock Creek case. Also that the procedure was covered by the Crown Suits Act.

The Court adjourned at 1 p.m (Continued on Page 3.)