IMPORTANT DECISION.

Mount Ida Chronicle, Volume II, Issue 80, 19 August 1870, Page 3

IMPORTANT DECISION.

I rliv:*;- r,:p old.:; ;r;*( *:vy. ?. jfcBTS AND PABTT V. ROSB AND PABTY. H| ' ntifirtr. [n this case judgment was' delivered" Mr. Warden .Robinson on Priday, t, 12th inst',, as follows : 77-? y ,•■; " [n this case it appears- that the derUnts, holding -..a, .license fonona', id of water; have,' on two- occasions,' &n more than the. quantity, to. which entitled, and it is sought to Mfciiem r subjected to apeijaity, and Sve them restrained by an order of [Court from taking in .future more h the quantity of onehead, to which

they are entitled. It does 'riot appear that there is. any, express penalty. .provided for taking"tOo much water. It might constructively be deemeda. breach of the rules," a!nd therefore liable 1 to penalty under the 101 st section of the GoldfieldsAct, 1866, but the Court inclines to the ; opinion that this wouldbe a rather forced construction of a penal section. As regards the order that is asked for it is evident that only one head'is held under license, : and it cannot' therefo re be nia iiit ained that the defendants have any right tp take more. It has been attempted to. be shown that, as they have, a right to. one; head, which be clear water, they are justified taking-all water that-comes when thick \viter is added to' the' clear wateiv J3,ut this eannot he,,maintained,, they - !Bi|ffer ; any harift by, the; commingling; ;o£ the thick-; swater >writh ; the ' clear they have their remedy: : .For the coifrplaiiitr it|s contended that public rights' are,! infringed by the tailings of the gully, being deprived of the csrry .them, fpnyard, lalthougb! no important present damage toiprivatec. rights has accrued, yet it is matter of public'poljey that every facility; should be afforded for tailings , ttf get away,.] and that 'nothing should be sanctioned iwhich in anyway.., tends to/ aggravatejtb| inconvenience their accumulation. Agaicyst; thip. view it is argued, that the employment of labpr and the .product tion of gold by : the': use of tsil water are of more public behefit than , could, result from, allo.wing the,water to flowon with the tailings. It does not ap?' pear to be make this : comparative calculation;- If 'any case can^be.made out for ; datiiage' or danger to: public rights' it would ap. pear='OTdjei; 1 "^fcpr r " | plied fo&'' that there probability at such mis-' chief. It seems reasonable, 1 and the'. iCourt is of opinion,* that if water be taken.fromutailiings the tailings 'must 5 be checked!in'theif flbwj aiid the public' interest' of the' 16eaHty ..s''46 much" bound'up u wiih ; the tailings , question -that the Court cannot favor-! anything tending to cause them to accumulate. Judgment—that the defendants refrain from taking into their race -more- than the one head of wafer to :which they appear to be entitled. '