WARDEN’S COURT.

Kumara Times, Issue 811, 7 May 1879, Page 2

WARDEN’S COURT.

Monday, May 5. [Before W. H, Revoll, Esq., Warden.] WILKINSON AND OTHERS V. DOYLE AND OTHERS CONTI N U KD. This Was a claim for £231, for an encroachment on the complainants’ claim at Larrikins Ten-ace. Mr Button appeared on behalf of the complainants, and Mr Perkins for the defendants. For the defence, Mi Pnrki-s said ho should be able to prove that the encroachment had taken place by leave and license of the complainants, and that the ground was utterly worthless. Hethencallel H. J. Price, who on being sworn deposed ; I am a Government surveyor. [ made n survey of the claim the plan of which is produced. The ground marked yell .w I estimated at 258 cubic yards, and the poition marked violet on the plan at 212 cubic yards. The width of the encroachment on the whole length being 142 feet. The average width is alumt 20ft., and the height sft., Hn. That was the average height of the props, at the upper end the props were 6ft. 9in.; half way down, sft.; and at the lowest end, sft. Gin. There is a prop 4ft. 6in. There are plenty of stones in the ground. By Mr Button : There was lacking in some places, but J did not allow for it in making the average of the height of the props. James Downie, one of the defendants sworn deposed s I know peg Bin dispute, marked on the map; it was originally in our claim. I pointed out the pegs marked A B and C to Mr Price, and these are our boundary pegs, we have always gone by. Wilkinson and party always joined usat a point marked A ; but twelve months ago they joined us all along the boundary. In enlarging our claim we put in the peg"C, taking in the spare ground. I recollect the survey being made by the Government surveyor for the race. I pointed out to Mr Hnnn the pegs A B aud .C. I am positive B peg stood there that day. One of the surveyors boning rods whs standing at peg B No m.*n could have put in a peg without seeing it. Doyle and pariy or Doyle and On. was written bn a piece of paper and affixed to the boning rod. The j«g B has been there ever since. Wilkinson and party knew it was our peg, because I showed it them. Wilkinson said the ground was not much good, and he had left the drive, but was putting in another close along our boundary line. He had put in two or three jump-ops, but he said the ground was no good between their drive and our boundary, and we could take it up. I said if it is" no good to you it can be of little use to us. I refused to haul the dirt up from the drive, as it was not payable. I tried nine trucks for a prospect and could barely get the color. By Mr Button: Melville, Barrowman, and M'lntosh were present when I pointed out the pegs. I did not put Doyle and Co on the paper. I did not see the 'word “ intermediate” on the peg. No one of the party except Wilkinson ever told me we could take up the ground. I do not believe it was done knowingly. It was not done by leave or license.

By Mr Perkins: We had license if wo liked.

Thomas Doyle, sworn, deposed : I know the pegs on the map produced, marked A, B, C. Peg B has been always part ot onr claim. Last October Wilkinson and party disputed that pfeg with us. I pegged out the ground, and it has never been altered since. The boning-rod is alongside the peg. My peg

33 was there the day the surveyor put in his pegs. Mr Hunu told me he had nothing to do with the pegs of the claims.. I was trucking. The ground was not payable that was taken out of the encroachment. By Mr Button : I was not present when the surveyor showed the pegs. Ityan KichardS) one of the defendants, deposed : He knew pegs A, B. and C, shown on the plan. They had held them since the ground Was first pegged-out. The ground was not payable in the encroachment, as he had prospected it several times. M'Grath, Tierney, Dwan, and Brennan were examined. Their evidence was of a similar nature to that of the last witness as regarded the pegs and paj'ahle nature of the ground. Mr Perkins said it was admitted that up to January they had not given tip. the ground; but no evidence had been adduced to show that it had not been abandon* d since September. The fact of Wilkinson and party {Hilling up their tramway and sinking a new shaft in another direction,pointed very clearly to the fact that they had abandoned the ground, and he must ask the Warden, under all the circumstances, to. dismiss the case. Mr Button contended that the witness DowrJe was the only one able to speak on the subject of the leave or license bei**g gi anted, and he considered that the defendants had kept this as a “ shot in the locker,” to he used at any moment. It was a most extiwnvdinary thing that immediately they passed the mbicon. or boundary line, the wash-diit which had been found averaging 2|dwtsi to Sdwis. should decrease to only, thei'.color. He trusted the' Warden wwldgiye more than nominal damages as against the defendants. . The Warden, in giving judgment, said this-was action to recover the . stun of £231 fqr,damages by-encroach-ment. Aftei minutely reviewing the whole evichnqg, be,- considered, the weight of it was in.faVour of the plain- ‘ itiffs, and he accordingly gave judgment . . in. th-.ir-favour for £l5O and co ts of jO.iCourt, one witness, and professional , ;! p Mr Perkins gave notice of appe d on o;■ b^alhfpji, the .defendants. , • Por remainder of news see.ljishpage. '‘