WARDEN'S COURT.—Jan. 5.

Mount Ida Chronicle, Volume II, Issue 150, 12 January 1872, Page 3

WARDEN'S COURT.—Jan. 5.

(Before H. W. Kobinson, Esq., Warden.)

IMPORTANT CASE. Two; nrners, Gogarty and Greer, for some years past occupied a. water race at Chirks, running from Nuggetty Gully through G uffie's, Robinson's, atia FlumihgGullies, towards Todd's G illy. This race was but! little used, if at all, during last. season, and in November last OVBrien obtained a licence to construct a water race over the same ground, but upon a higher level, and extending through Sailors' and Cobblers' <Gullies to Humphrey's Gully. The licence was; to " construct a water race, two miles in length, commencing in Nuggetty Gully, to include all tributaries, streams, and swamps in its course, and terminating at his claim in Humphrey's Gully." In 'Gogarty and Greer obtained leave to extend their race from Todd's Gully to Humphrey's Gully, keeping upon the lower level, and upon the hearing.of the application it-was decided by the War-. den-that O'Brien 1 a licence, so far as it included tributary streams, was bad, because he had not put up notices upon those tributaries. After thi* decision, O'Brien sold his race to one Michael -M'Grath.

An'application by G>garty and Greer ** fur " one additional head of water, to be taken in our registered race, No. 888, for mining purposes, commencing at a point in Todd's Gully, darks Diggings, taking water from Todd's, German's, Fix's, and Fred's Gullies, terminating at Humphrey's Gully," now came on%o he heard. Mr. Smythies appeared for M'Grath to oppose the application and objected: Ist. That the notice was bad, for uncertainty in not stating how much "irater was claimed from each gully. 2nd. That the notice was not according to the form given in the Regulations, to be used when water is applied for to be diverted from any source. 3rd. That one general notice was not sufficient; and that a separate notice. in the form given in the Regulations, must be fixed at the source arid termination of each race. Mr. Smythies contended that the true construction of Regulation xn, sec. 1, is that the taking water' from every distinct source is a distinct diversion, and requires a distinct application and notice, according to the form,— that an application may be made for a race to conduct water from Todd's Gully to Humphrey's Gully, but if it is intendea to divert water from any intervening gully, or source, this can only be done by a distinct application and notice.

Mr. Greer objected to Mr. Smythies occupying the time of the Court by an argument, the effect of which was to over-rule the entire practice of that Court for the past six years, and render void every water race certificate. The Warden said that the point raised by Mr. Smythies was a very important one: the objection had occurred to his mind, but it had never been argued, and he was very glad now to htar Mr Smythies argue the point. ftr. Smythies then argued, as to the Ist objection, that if the application was allowed, the miners generally would be entitled to all the water running from the sources named in the application which was not granted to the applicant. Now, the application was for one head of water out of four sources. Suppose those sources each gave a head, there were three heads unappropriated, and therefore belonging to the public. But suppose M'Grath applied for one head, out of which gully could he take it? Whichever one he applied for, the pre sent applicants would object that they were entitled to one head out of that £ully, because, being entitled to one head out of all the gullies collectively, •trey were entitled to one head out of each gully, and thus, although entitled to only one head, they monopolised the ihree other heads, because it was not specified out of which gully that head was to fee taken.

P? / The Warden said there was great force in the. argument adduced by Mr. Smytbies, and perhaps sufficient to induce him to dismiss the application, for uncertainty, but that such a decision would affect so many claims, and was therefore so important that he would

avoid deciding the point, if he could consistently, with. his~.duty. He, Anew Mr. Smythies' attention to the tfbjeci tion, which was that the application affected the rights of the that he must, therefore, call .upon Mr. Smythies to show this to be so, which as yer he did not | eroeive. Mr. Smythies submitted that, in the | ..present'argument, he was not confined: to t*ie objection. The miners as a body wfcre entitled to the and if any • one desired to appropriate part of the common stock, any one had a right to come here, without having objected, and suggest to the Court that the applicant had not fulfilled the law, —as, for instance, made a proper claim, or fixed proper notices. This would be in the nature of a nonsuit. True, if the applicant satisfied,the Court' that he had fulfilled the law, and thus, made out a prima facie case, ; so that, in default of an objertion, the certificate would, be granted, then the objector must rely on his objection alone. So far, however; as the case had gone, the applicant had not made out a prima facie case; and, therefore, his Worship could not, even without, objection, grant the certificate. The Warden .seemed inclined to allow" this but Mr...Smythies said would not press for a decision, as he could show that his client's rights were ; interfered with he should prefer doing so, as it would strengthen his argument upon the main point, by it* showing the difficulties- which would, follow upon the granting of the certificate. . .

Mr. Smythies asked, Row were the claimants to p;et the water if the certificate were granted. M'Grath had a right to cut a race through these gullies, which right could not be interfered' with. This race now collected the very water applied for,—it fell'in to the race in the course of its natural flow. True, the Warden had, upon a former occasion, decided that M'Grath was not entitled to the water,, but he was entitled to the race, and if the water naturally fell into it, he was not bound to' keep it out. The applicants, therefore,, could only get the water in one of two ways,—either by cutting it off from McGrath's race, where they must flume it either over or under the race,or take it out of the race. The latter he could not do, for they had no right to cut that iace, nor could they separate the, water which they claimed fr m that which McGrath 'had a right to flow down the race. If, then, they took the other course, and flumed over the race, this fluming would of itself be a race; and could only he obtained by -notices, giving the length, breadth, source, ter mination, &c. as required by the Rule. The Warden: That ia perfectly correct. ■•■■:•■■■ - I:" : .\ ■< ~ ; ; ( ?>y

Mr. Smythies urged that as the water I claimed was in the actual possession of M'Grath (by running down his ra«*e), he had at least tl-e ritrht of possession, which right was now interfered with. The Warden said that at first he had' supposed that the applicants' extended race was upon the upper level, and that they merely applied for water which would naturally flow into the race, and which did not belong to M'Grath ; biit it now appeared that M'Grath's race was on the higher level, and therefore that the water claimed could only be got by fluming over that race. * Mr. 1 Smythies had drawn his attention to an application by M'Grath, standing for hearing that day, and *vhich he thought was the correct way of obtaining the right to the water, "it was for a short race, about three yards, commencing at a point in one of these gullies, and terminating in his race, which, although short (and the length of the race made no difference), collected the water and conducted jt into his race, and thus " diverted," or appropriated, the water so applied for, (namely, one head).Had the applicants made a similar application and fixed similar notices, he would have granted the application; but as it was, he must dismiss the application for uncertainty. M'Grath's application was then heard, and the water granted to him: ■*'-

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