DISTRICT COURT—Nov. 13.

Mount Ida Chronicle, Volume III, Issue 195, 22 November 1872, Page 6

DISTRICT COURT—Nov. 13.

(Before his Honor Judge Wilson Gray). Duffy, Appellant t. Manx and others, Respondents. This was an appeal from the decision of Mr. Warden Robinson and assessors, given at Hyde in September last. The appeal was heard on the 13th, 14-th, and loth of this month. Evidence was taken at great length on both sides, much beyond the space of our columns to allow of a detailed report. The appellant Duffy* in September last, sued the respondents, in the Warden's Court at Hyde for damage done to the appellant's race (the Enterprise), by washing away the support of the same. At the trial in the Warden's

Court, on the conclusion of the plaintiff's case, the complaint was dismissed with costs, without calling upon the defendants. Against this decision Duffy appealed to the District Court, mainly on the ground that the decision was against the evidence. On the appeal the appellant sought to show that the respondents had worked outside the boundary of tueir claim, close to the appellant's race, and so caused a portion of the race to slip away. The respondents contended that the breaking away of the appellant's race had been caused partly by the appellant's own neglect in allowing his race at this point to. get into bad repair, and partly by a similar neglect on the part of the Sowburn Company* who owned a race immediately above the appellant's at the point where the break occurred. The appellant could not produce any certificate showing his right to the race at the place where the slip had happcrfed, and evidence was given by the defendants showing that when the appellant's race was originally applied for, the notice posted at the tail end of the race was about a quarter of a mile above that part of the race as now constructed which has slipped away. It was submitted on behalf of the respondents that, a water race being in law an easement in gross, created by a statute which also provided the proper mode of acquiring the same, a mere possessory title to the race was not sufficient to ' maintain the action. His Honor said that T should it be necessary for him to decide the point, he should not do so without giving either party the option of having a ease stated for the opinion of the Suprt m? Court. A case somewhat similar had •lately been decided in the Court of Exchequer in England, and the decision of that Court by three Judges against two was against the possessory title. His Honor reserved his decision in the case, as he thought it likely he might visit the scene of the slip on his return from Queenstown. The appellant appeared in person, and Mr. Rowlatt appeared for the respondents.