WARDEN'S COURT.

Lake Wakatip Mail, Volume II, Issue 82, 10 February 1864, Page 6

WARDEN'S COURT.

Before Richmond Beetham, Esq., Warden* and Assessors. IMPORTANT MINING CASE. Stony Beach Sluicing Company v. the Arthur's Point Race Company. (Continued.) George Aiken, sworn, deposed—l have mea-! sured the race at the commencement of the en- | eroachment: it is 41 feet wide as nearly as possible. The area of the encroachment is 750 feet. The eastern end of it is 8 feet 10 inches wide ; at the western end, 3 feet 8 inches; and the length is 120 feet The fourth crate was put in under protest. One of the men, Lowther, said, "We have been told by our foreman to put in this crate, and this crate shall go in." At the time it was going in I saw the pegs put in by Mr Hyde standing. I consider Mr Hyde put them in as an indication line of the ground ceded to him. By Mr Shepherd—There was only one line of pegs to indicate the race. I cannot say what weekly earnings we have made for the last four months. It varied: sometimes we got nothing j at all. That is the only claim I have on the river. I have been making rations, and a few shillings to spend—say £2 per week. j By Mr Anderson—There were pegs on the upper side of the race: I take them to be the in- j dication line put down by Mr Hyde. There were two lines put in on the upper side: I believe we wanted ten feet more ground, as we considered that part of our claim the richest. At the request of our manager ten feet more was granted to us on the bank side of the race at the western end of our claim, running to nothing at the other end. That was given to us by Mr Hyde. John Turner, sworn—l saw the indication line \ before the pegs were put in. The stripping j would not average four feet throughout. 1 do | not consider "batter" (or slope) necessary where they were going to put in crates. Have seen cutting similar to this race before. I have seen excavations where " batter" is required. When | we cut a canal or railwayMr Shepherd objected. Evidence as to railways or canals could not be supposed to afford j any guide in such works as the Arthur's Point j race. Mr Anderson contended that the case of encroachment entirely depended upon the question of " batter." Mr Shepherd pressed his objection. The soil of the Shotover was nothing like that removed in excavating canals and railways in the old country or in Victoria. His Worship said he would make a note of the objection, but should admit the evidence. Examination continued—l consider I know more about cuttings than Mr Shepherd. When a railway or canal is cut it is marked off by surface pegs; that being the vertical or plumb line. The main face is then carried a-head according to those pegs, and the slopes then pegged back from the vertical line according to the quality of the ground. I had a conversation with Mr Hyde before the crates were put in, about the washdirt. He said he was going to put the*crates in on the river side of the race, as he had widened it on purpose. He asked me if we had done with the ground where the first crates were to be put. He never denied our right to the washdirt. It would not have taken more than an hour and a half to take out the wash from under the crate they put in by force. By Mr Shepherd—l consider that flood-races in this country should be cut on the same principle as railways and canals in England. Never knew crates used in England ; but it does not matter whether the wall is of stone, or brick, or wood. By Mr Anderson—l cannot state my exact earnings: some weeks it was about £8 or £lO ; sometimes nothing. Three-fourths of the time I have been in the claim we have produced no gold; but now the fine weather is coming on. Alexander M'Arthur, sworn—l was present at the beginning of the dispute. I was working by th« side of the man that was preparing the place for the crate, on the evening when the encroachment took place. I showed him (Lowther) the pegs, and told him I wanted the washdirt first. I saw three indication pegs standing there in a row, that were put in by Hyde before the ground was ceded to them. Lowther said he had orders from Mr Hyde to put in the crate, and he should do so. On my protesting he went up to Mr Hyde, and when he came back said, " Come on, boys f and prepared to put in the crate. I went up for our foreman. Mil ler came down, protested against the crate going in, and told us to help him to get the pumps out, and stop work, if they would not go on according to the agreement. By Mr Anderson—l heard Hyde admit to Miller next morning that part of the crates were on our ground. Immediate steps were taken to call the warden's attention to the matter. James Adams, sworn—l consider there is not a sixth of our claim worked out since we were amalgamated. Our operations were very much impeded by different obstacles; one of which was the construction of the race on the opposite side of the river, which threw the water on to our claim. Before we became amalgamated; I was working on a portion of the ground at present owned by the Sluicing Company. I washed my gold with a cradle. My earnings then, I should think, averaged about £7 per week. That was within about ten or twelve feet of a portion of the encroachment, and in the ceded ground. By Mr Shepherd—l can't swear that we have made more than £2 per week. I can't tell what the worked portion of the race produced: I never enquired. The fourteenth share of the gold produced out of the worked portion of the race in our claim, deducting expenses, amounted to between £4 and £5. That was my share.

Mr Anderson then briefly addressed the jury, explaining that he did not go there for damages, hut merely restitution of the property forcibly taken from them, and for the fulfilment of the conditions of the agreement. Mr Shepherd, for the defence, stated that he represented a body of 400 miners, and the jury must therefore weigh well the evidence, and give the case every attention. As they were aware, his clients joined together some time hack to turn the Shotover river at Arthur's Point. They then contemplated cutting the race in a certain direc-j tion, but subsequent consideration induced them I to alter its course, and therefore made arrange-1 ments with Miller and Co. for the cession of a portion of their claim. The agreement was drawn up by them, and must be looked upon and judged j by the jury as the work of miners, not of lawyers. ■ The question was, whether Miller and Company had received all the washdirt that could be obtained. His clients were not bound to make the race of any particular width. He would lay stress on the point that, when they bought the j ground they bought it from the inner line of pegs, for £2BO and the dirt that was got out j while making the race: it could not be the plain- j tiffs' ground. Plaintiff maintained that it was a case of encroachment, and that they did not; claim damages. No, for what they would get, from any intelligent jury would be little indeed ; but they adopted this plan for the mere purpose of extortion. There were two lines of pegs, | which were put in to show the approximate course of the race. The bottom of the race was as wide, or wider than that portion above it; \ and secondly, supposing that they took the ground from the other row of pegs, they bar-1 gained for a slope—two feet in one. The ground in dispute had not returned £2 per week per man. j He would call i Wm. Hyde, who said—l entered into negocia-; tions with the plaintiffs, and made the produced agreement with them. There were two lines of j surface pegs, and I purchased from the upper line of pegs, subject to certain conditions. These were that the Sluicing Company should receive j £2BO, and all the washdirt in the course of the | race. I consider that the ground used for the ! race is as much ours as any other portion. They j received all the washdirt out of the race. The i bottom of the race, where they complain of, is j wider than the other part. I kept three pumps going day and night, according to the agreement. The y ceased working in consequence of their saying we had encroached on them. The case was tried here afterwards, and we gained a verdict. The portion of the slope of our race, till we arrive at the crates, is not quite one to one. Had we sloped, instead of rising indication pegs, the race would not have been to broad as it is at present. It was not our intention to make the wall perpendicular from the line of pegs. The face of the worked ground of the race was prospected. Three buckets of dirt yielded about two grains. Both rows of pegs were used to denote the approximate line of the race. Except when interrupted by the floods, we have kept on at work. There have been about 95 men employed. By Mr Anderson—l assisted in putting in the pegs in the river side of the race. I consider wo bought both sides from you. We hold enough ground on one side of the race to throw our dirt upon, and for the construction of the race on the other. I cannot tell the exact depth of stripping necessary before putting in the crates. The lowest, I think, was five feet, but it averaged considerably more. Our crates are nine feet high, seven-and-a-half feet at the base, and three-and-a-half feet at the lop. We were obliged to cut the bank square down, as we were going to face it with timber. This was no part of the agreement: I thought at fiist that I should give the race at the point in dispute the same slope as the previous portion. 1 might have said I would widen the race without your asking it to be widened: we are now doing it. I did not admit to Miller* that the fourth crate was on your ground. I never said you should have the ground under the fourth crate. As near as I can recollect, what I did say was this:—That if at any time you should point out a lead of gold, even though it should be on the other side of the crates, we would follow I it out for you, and not be particular as to the | terms of our agreement. The width of the race j where the dispute took place was about 45 or 50 j feet at the bottom. There was a face right across I the race, from which the prospect was washed. The ground at one part was poor. The reason why I asked permission to put in the first three crates was that all might go on smoothly. I did not tell the men to put in the fourth crate by force—l only told them to put it in. About 45 feet by 40 feet of your ground in the line of the race is worked: that would leave 135 feet solid ground. George Ryan deposed that he washed the prospect alluded to in the evidence. It was the poorest stuff he ever washed. One of the plaintifis' party put the dirt in the dish. Mr Shepherd said that he should rely on the written agreement, and on those facts that must be patent to the jury, and should not, therefore, bring up fifty witnesses. His clients purchased the ground from the inner row of pegs, and the alleged fact of their not allowing the plaintiffs the washdirt could not be construed into an encroachment—it was a breach of agreement, or nothing. Should the verdict be against his clients, it would throw 500 men out of employment, and cause great distress throughout the district. It was nothing more than an attempt to extort an additional sum for a piece of worthless ground. Mr Anderson said he was content to leave the case on its merits. The testimony of his witnesses had not been disproved. By the agreement, Hyde was bound to work under the supervision of the company — Mr Shepherd—That was under the old agreement.

His' Worship considered that had nothing to do with it. A juryman objected to bringing in the first agreement, as it gave the jury too much to think about. Mr Anderson continued that the Race party had encroached upon them to their serious detriment. He was not prepared to admit the poverty of their claim, so eagerly sought to be established, and trusted the jury would consider the testimony of men who had spent twelvemonths on the ground more worthy of credit than that of mere interlopers. He only asked justice from the jury. His Worship having briefly summed up, the court was cleared. On the public being readmitted, the jury stated that three of their number were of opinion that the case should be dismissed, one (Mr Maguire) being in favor of a verdict of breach of agreement. The case was therefore dismissed.