WARDEN’S COURT.

Kumara Times, Issue 1355, 3 February 1881, Page 2

WARDEN’S COURT.

Thursday, February 2. [Before H. A. Stratford, Esq., Wardeh.] THE MINISTER OF PUBLIC WORKS V. THOMAS DERBY AND OTHERS—EN. CROACHMENT ON SLUDGE-CHANNEL. Mr Perkins for the complainant, and Mr Barff for the defendants. Mr Barff, for the defendants, contended that the plaintiff had no legal standing in the case whatever, as he found that, on searching the books of the Court, no miner’s right had been taken out in the name of John Gow during 1879-80. He argued no lawful possession could be proved by the plaintiff, as, to be in possession by the Mines Act, it required a miner’s right, and such right must contain the name of the individual in whose favor it was issued. Mr Barff then referred to various clauses of the Mines Act, in support of this argument, and also stated that Mr Gow was in effect a trespasser, who, under the Act, could be sued and fined. He should maintain that there was no lawful possession of the sludgechannel by the plaintiff j and on those grounds the Court would be asked to grant a nonsuit. Mr Perkins said that the mining rules, although requiring a miner’s right in the case of a private individual, did not extend to the Minister of Works, in his official capacity; but, to meet all technical objections, he would ask that the name of Richard Oliver be inserted, as he contended that such amendment could be made by the Warden’s authority. The fact of the full name of the Minister for Public Works not appearing on the miner’s right made but little difference when the identity of the person was established. He applied to the Court to have the document amended, by the name of Richard Oliver being placed before the words “ Minister of - Public Works.” The Warden ruled that he had no power to alter any miner’s right, or in any way to interfere or control the actions of the Receiver of Gold Revenue. Mr Perkins then formally applied to Mr Barton, the Receiver of Gold Revenue, who also declined to amend the document as requested. After argument between the Warden and Mr Perkins, the case was proceeded with, and the following evidence called on behalf of the plaintiff :~ John Gow,. sworn, deposed : I am agent for Richard Oliver, the Minister of Public Works for ; the colony of New Zealand. The said Richard Oliver is in possession of a sludge-channel in Kumara. The original certificate of the said channel is in Wellington. I applied for the certificate on the authority of the Minister of Public Works. The miner’s right (produced) No 12380 of August, 1879, in the name of the Minister of Public Works is the one on which the certificate was obtained, and the renewals of same I also produce. I have applied to the Receiver of Gold Revenue to insert the name of Richard Oliver in the miner’s right produced, for which I made a written application on the 29th of January last. I produce a certificate of registration for a deviation in part of same sludge-channel. The plaintiff, Richard Oliver, was in possession of the sludgechannel between the 3rd of December, 1880, and the 14th of January, 1881. During the dates mentioned the defendants tipped stones on the sludgechannel in the portion shown on the plan produced. They are now tipping stones into what was formerly an open catting, and which had beeu covered over, timbered, double-lathed, and two feet of soil placed over it to protect the workmen engaged in the tunnel from any stones that might accidentally come that way. The stones are now being thrown on the spot 1 from a height of over 100 feet. The stones have now broken two of the caps in the tunnel and , bent several others much. The defendants by their action are now endangering the safety of the sludgechannel. The contractors’ men are constantly passing in and out at the present time. If the defendants are not stopped the result will be the destruction of the channel. On the 14th of January last I gave the defendants notice, in writing, of the damage they were doing. [Copy of notice read from letter book], I have seen one of the defendants since that date and he told me that they did not intend to put any more stones on the eludge-channel. To Mr Barff: At the time the sludgechannel commenced there were no men tipping stones at that point.' I chose what 1 considered the most suitable course for the sludge-channel, so as to avoid as far as possible in anyway interfering with mining interests. The other catting was included in the original survey. There was no condemned timber put in the cutting referred to. I have examined the caps that are broken, and l.find from the nature of the break that a knot existed iu one

cap, hut otherwise the timbejMras quit* sound. I gaVe a miner ntfifed Connington leave to put a small quantity of stuff out of RaiilsCn and r safty’B tunnel on the top of the soil in the cutting, but it was only fot a short time. The second Cap broken* which I examined, was a really good cap. One of the caps in further up in the - tunnel was broken by the pressure of the pug. The weight of the stones codling down' broke the first two caps mentioned, t consider that there is a pressure eqnal to 30 or 40 tons on each cap, but the blows struck by the falling stone* makes a material difference to the weight. William Alfred Barton, Receiver of Gold Revenue, sworn, deposed. lam Mining Registrar, and produce record of certificate for sludge-channel, No. 6974, issued September 20, 1880, on miner’s right No. 32380. The registration was made on that right in favor of the Minister of Public Works. I have issued the renewed rights in the name of the Minister of Public Works, and not in the name of John Go\y, because the original was so issued in the name of my predecessor. Ido nbb consider I have any authority to alter a name in a miners right after it is once issued. The certificate produced for the deviation of the sludge-channel in the name of John Gow was issued by me. Martin Sorgesson, sworn, deposed i I know the Kumara sludge-channel, and the tip bead of Derby and party. 1 know they have been tipping stones during the last month, which go down over the sludge-channel. Laofc week I believe they altered the direction of their tip-head. To Mr Barff; I have seen one of the broken caps; there was a big knot and some rotten timber in it. I am an experienced miner. Ido not consider the cap was strong enough to hold up twelve feet of dirt. Re-examined by Mr Perkins 1 A little after New Year 1 Saw the..cap, and there was rotten timber in it then. John Maher, sworn, deposed : I. am the contractor for the constrnction of the sludge-channel. 1 know the part which was aq open cutting and was covered in for the protection of the to prevenhthem being killed by the heavy stones which, might •fall in it. lam aware stones have been tipped on it by Derby and party, and they are endangering the channel, as the timber has.now a breaking,strain to carry. The,* Weight of the falling stones from the tip-head have: already broken two and I consider that some of the stones I have seen had come down with at least five tons weight. There, has been no condemned timber whatever put in si§; sludgechannel, and- there are hundreds of caps with knots in, but they diave not broken. The tunnel will eventually collapse if Derby and party are allowed to continue tipping stones on it. To Mr Barff: The open cutting was a part of the original • work. I have never heard Mr Gow or Mr Miller say that any condemned timber could be used in the tunnel. I have examined the caps broken, and they were good sound timber. All the timber condemned is still lying on the surface. In reply to the Warden, Mr Barff decided to call no witnesses for the defence, but abide by the decision of the Waiden relative to the law points raised. The Warden, in giving judgment, said: The complaint is dismissed, without prejudice, on the grounds that the complainant, Richard Oliver, does not produce a miner’s right in the name of Richard Oliver, in force during the period from 3rd December, 1880, to 14th January, 1881, and that certiticate No 6974, referred to in the complaint, has not been produced, or suflicient reason shewn for its non-produc-tion. Costs will be allowed defendant of £3 10s for witnesses, and £1 la agent’s fees. THE MINISTER OF PUBLIC WORKS V. NEILS PAULSEN AND PARTY. Mr- Perkins for plaintiff, and Mr Bstrff foi* the defendants. This being a similar case, Mr Perkins said that, after the ruling of the Warden in the previous case, he should withdraw the complaint. The complaint was withdrawn, and the Warden allowed the defendants 20s expenses, and agent’s fee £1 Is. BROOKE AND PARTY V. PAYNE AND PARTY. ’ ‘ Mr Hannan for the plaintiffs, and Mr Sampson, one of the partV for the defendants. This was a case in which the plaintiffs had taken up a claim on i shat they believed to be abandoned ground, which the defendants denied. ' After hearing evidence on both sides, the Warden ordered the defendants’ certificate to be cancelled, as the claim had been abandoned, with costs ’against. defendants of £3lss, and agent's fee. £1 Is. ".y* • . '