WARDEN'S COURT.

Mount Ida Chronicle, Volume II, Issue 136, 6 October 1871, Page 3

WARDEN'S COURT.

Tuesday, 3rd October.

(Before H. W. Robinson, Esq., Warden.) Cleary and Others v. Newmarch and Others.—This was a complaint that the defendants had, between the 22nd and the 28th ultimo, interfered with the workings and tail race of the plaintiffs in Main Grully, Naseby, by running water and tailings therein, without the consent of the owners of the said race and workings, or the authority of the Warden, contrary to sec. 1 Reg. 26, of the Goldfields Rules and Regulations, and that in consequence of such interference the plaintiffs have sustained damage to the extent of £SO. Mr. Bailey for the plaintiffs, Mr. Rowlatt for the defendants. This case was partially heard yesterday, when, at the request of the counsel for the defence, the Warden inspected the ground. The evidence is too leugthy even for a succint report. We, however, subjoin the substance of the Warden's remarks when giving judgment. In giving judgment, the Warden said: The plaintiffs claim damages (£SO) for interference with their tail race, by defendants running water into it. For the defence, it is contended that there was really no damage proved against them; and even were there damage, they (the defendants) had a right to run into the Main Gully at a point opposite that portion of the race granted to plaintiffs under certificate of extension, and that their right is of older date than the extension. Much evidence had been adduced to prove damage, but the Court inclines to the belief that there was really no damage done by the water from defendants' claim. This was a claim for damage, and he did not, from the evidence, believe that the choking of the plaintiffs' race was attributable to the water from defendants' workings. It was, according to his belief, impossible that the moving of the large body of tailings could have been occasioned by the three heads of water from Newmarch's claim. It was evident that the water from Newmarch's claim must settle and deposit all its heavy load before it reached the point where it would «-o into plaintiffs' race, and in its cleaner state it would have a tendency to assist rather than choke the flow of tailings in plaintiffs' race. It was in evidence that the race was in the habit of getting choked occasionally, but he could not hold the plaintiffs to be estopped by their former evidence in the case Cleary v. Anderson, as urjred by Mr. "Rowlatt, though he attached some importance to it, for it appeared to consist with rea. sou tjiat a small stream, amilar td that

of the defendants, which would clear itsel beforo n fell into the plaintiffs' race, would do more good than harm to the race, the distance being between 400 and 500 yards from the end of the defendants' tail race to the point at which the water entered the race of the plaintiffs, and the course, throughout the entire distance, over a bed of tailings with a very inconsiderable fall. He was not inclined to encourage a litigious spirit among neighbors. Complaint dismissed, with costs, £3 65., and professional costs, £2 2s.