DISTRICT COURT.—Jan. 8.

Mount Ida Chronicle, Volume III, Issue 202, 10 January 1873, Page 3

DISTRICT COURT.—Jan. 8.

(Before his Honor Judge Wilson Gray). DUFFY V. MANN AND OTHERS. In this case his Honor now delivered judgment, which was to the effect that the decision of the Warden and Assessors would be varied so far only as to dismiss the complaint without coots. Hd said that he had reserved judgment until he had himself visited the claim at Hyde. He thought the case -was one of very considerable doubi,. The proceeding in the Court below, was by the holders of a race against - the holders of a claim adjacent to the race, for so working their claim, as to undermine the race, and withdraw from it the support to which it was entitled. It was very like the cases that were occurring at the Blue Spur, Lawrence. On viewing the ground he saw a great deal to support the demand made by Duiiy, who was plaintiff below. The claim adjacent to the race was very deeply worked, strongly suggesting that the undermining was the cause of thu race giving way, and if he had had any reliable evidence of experts supporting that view, he would have been ciisposed to set aside the judgment below, and give the appellants damages. But in the absence of such evidence, and considering that the workings nearest to where the breach had taken place, had not been deepened for nearly two years, during which time the race had stood with the support then left to it; considering, too, the, amount of evidence which had been produced to shew that the other races nigh Mr. Duffy's, had been very badly kept, and might well* be supposed to have weakened the ground, which would otherwise have been sufficient for the support of this race, he did not leel justified in disturbing the judgment of the Wai'den and Assessors, otherwise, than by determining that each party should pay their own costs in' the Court below, as well as in the Court of Appeal. Had he been satisfied that the giviag way of the race was due to the undermining, there would still have remained a question.as tu Mr. Duffy's water-right. .It was whether his certificate authorised him to carry his race as far as the point where the breach occurred. This would have raised a question as to title founded on possession merely, so important that he would probably have reserved it for the opinion of the bupreine Court.

FRATER V. HOWE AND OTHERS. ' This was case which, from its local as well as from its interest, attracted much attion at the District Conrb on Wednesday last. ' This was an appeal against a judgment given, in the lower Court, by Mr. Warden xiobinson, of forfeiture of right as to'' three heads of water to be lifted from the Ben Lomond Creek, which Mr. Frater held under purchase from the Court bailiff. -■ . ~ Mr. Stout for appellant, Mr. Bowlatt for respondents.. ' ' - One or two hours were spent in preliminary objections on both sides, these presenting points' of great interest, For the sake of getting a clear report of the case, we prefer to somewhat vary the order of the proceedings. , The original plaint, called on Frater to show cause why a certain right to cut a race, to carry three heads, from the Ben Lomond Greek to certain workings near the Big Hill, should not be .declared forfeited. This plaint respondents were now called upon to maintain. Mr. Rowlatt, in opening the case, said : The defence, so far indicated by the preliminary arguments of counsel, is entirely different to that produced in the Warden's "'Court. At the opening of the Maerewhenua Goldfield, an application was made by six men for a right of three heads of water from the Ben Lomond Creek to Maerewhenua. . Before this grant was heard, this application- was sold to Evans and party, who formed a company called the Enterprise Company. They further- held in their own original right a a race to carry twenty heads from the upper branch of the Maerewhenua, part; of which was cut. The two applications—the one of twenty heads, from the Maerewhenua; the other of three, from the Ben Lomond—belonged to the Enterprise Company. The En-, terprise Company then constructed.a big race from the works as far as the Ben Lomond Creek, intending to pick up the three heads from that, and push on for the twenty heads from the Maerewhenua. About February, 1871, Howe and party applied for„and obtained the right to five heads from the Ben Lomond Creek. Subsequently, all rights of the Ben Lomond race were sold out to Frater. The Ben Lomond Company (Enterprise?) never constructed their race in accordance with the application for three heads, but simply turned it off into the head of the large race they owned under another application. It was attempted, at the trial in the Warden's Court, to show that the two races were the same. The respondents, holding a race from the Ben Lomond of five heads, have been in enjoyment of full water rights of creek from, the time their race was cut till the present, and appellant is seeking to usurp the water of a race that has never been cut. —(All the certificates, renewals, &c, were admitted, and put in as evidence.)— Appellant well knew he had two rights; he was monopolising the water, without making any use of it, as the race it ran into leaked arid was useless. All the sections and regulations as to construction of races and forfeiture are drawn up to meet such cases as the present, viz., a holding of rights to the deprivation of - others who would cut races and use such lights. Thomas Cooper gave evidence that he wns one of a party who applied in 1869 for a race at Maerewhenua from the Ben Lomond, to carry three heads of water, and who subsequently so 1(1 to Evans and party called the Enterprise Company. Counsel was proceeding to draw detail evidence as to applications, but.

on appellant admitting all certificates, this was discontinued. Have never seed notices of Ben Lomond .Race. Two races are eonplefed from Ben Lomond Creek to workings, andouc parti-dy cut, at least started. Large race would carry 20 bonds, if of sufficient fall. Erater claims this race, the other belongs to Howe and parly. Large race commenced in" 1869, and cut to Ben Lomond Creek.

Cross-examined by Mr. Stout : Had heard of the Independant Bace—they applied for a race.

The Court: Who are they? . Witness: Thomas and party-Cross-examination continued: Howe had aiot applied at this time. This race was .to start somewhere above the Enterprise race. I believe so. One party told me so. Ours was a prior right to the Ben Lomond race. We intended to work the Big Hill. John jSTimo, miner, Maerewhenua, examined by Mr. Bowlatt: I am one of a party who applied for a race out of the Ben Lomond Creek. We did not get a grant. The day we sold it, it -was granted to Evans and party. There was no race cut at that time, but the Enterprise.was in course of construction. . '

By the Court: The Enterprise had not reached the Ben Lomond at that time. Could not say how much was cut perhaps half a mile. It is about four miles from the workings to Ben Lomond. Examination continued: Two races are now cut—the Enterprise and Howe's—and one other race below, not connected with the Ben Lomond Creek The Enterprise race is about, 3ft x 2ft, and would carry eight or nine heads.

In answer to a question as to other races, witness said:' There is a small thing Mr. Frater was cutting, that takes water from a branch of the Ben Lomond. Examination continued: I was the one who posted the first notice at the head of the small race, prior to its being proclaimed a Goldfield. There is no other race. to carry three heads except Howe's. Cross-examined by Mr. Stout: The application was for three miles or thereabouts. Thereabouts might include five miles—would not include six. "We were not sure of distance. The workings were four miles off. Our race was to end on a sidling of Big Hill. [On being shown the map, the witness declined to give an opinion, not being versed in maps. The examining counsel said it would, be necessary to educate him, and the' Court remarked that now-a-days the school-master was abroad.]

Cross-examination continued: He did not see the notices posted. The r.ice was to be forty or fifty feet below the present Enterprise race. Don't know how far below Ho we's race may be. It may be from fifteen to twenty feet below. Howe's race is not r--o far below the Ben Lomond as the Enterprise' is; above it. Had a race at Bushy "Creek. ' Did not intend this race to go to Bushy Creek. The tailings were to go liown Prihgle's < hilly. Water from ths Ben Lomond would not run into Bushy Creek, because the Ben Lomond i ace was forty to' fifty feet too low. fho Enterprise had half oiv'thi/ee-quartera of a mi!e constructed when I sold my share. In a suppositious case, if one party had a prior' right to another "working lower down, no injury could accrue to the latter if the former party were to shift forty or !ifby feet up the creek. Never heard of the Independent race —or forget. Smith was examined, but on cross-exa-mination, he said: The right v/c (/ e., Cooper, tfaly, Smith, and Alkuf bought, I do not know whether it was applied for, and don't know where the right was to commence, or anything about it.—(So nothing material was elicited.)

Ji.Howe, one of the respondents, examined, said: We hold a license td'divert live heads of water, mainly from the- Ben Lomond Creak. The race is constructed. . It was completed twelve months ago last November. Have had water since April last. There is one race above us—the Enterprise—belonging to Frater. I-Jo water from the creek runs into his race, which will not hold. I came to Maerewhenua three yeai-3 ago. Part of Frater's big race was then constructed. Only two races are constructed out of this creek. Since April last my party have had all the available-water. The dryness of the season and the newness of the race prevented us getting water prior to April. Cross-examined by Mr. Stout: We got an enlargement of our race granted in 1872. We posted notices.

W. Inder, auctioneer at Naseby, examined, said:—l know Mr. Fra,ter. I received verbal instructions to offer the Ben Lomond race—twenty beads, partly from Maerewhenua. Offered it by auction in presence of Mr. Frater. JSTo sale was effected.—(The object of Mr. Inder's evidence was to show that Mr. Frater claimed two separate rights and applications, to be sold either separately or together. This, however, was not very clear.)

Mr. Stout then said that the facts as detailed were substantially correct. The Enterprise Company arranged to construct a race in Maerewhenua. Before arrangements were perfected, jSfinao and parky applied tor a race from Ben Lomond to Big Hill, to be three miles, or thereabouts. Mr. Smith and Mr. Jialy appeared before the Warden, and got a grant of three miles of race to T. Evans, on behalf of the Enterprise Company. By the certificates, all through, the small race 'is called the Enterprise Company, and the big race the Ben Lomond ; hence "the confliction of evidence. The certificate of Septembei, 18G9, is for Enterprise Company. A further certificate, dated March 29, 1870, also for T. Evans, is for the same Company. This last certificate appears to have overlooked, for it, strangely, has not been cancelled. This certificate is for extension and alteration

of water race, and' should have stood or fallen conjointly with, the original certificate of 1869. Ben Lomond is the name under which the Big .Race is held, not the Enterprise at all. So far.as registration of certificates are concerned, both races terminate at Big Hill. The certificates have been duly renewed to date. . The last- license for the small-race bears date 20th August, 1872, and appellant has a further extension granted :-JJst October, 1872. Frater was not an initiator of any of these race,:!. He bought from Evans on the understanding that the right to the three heads coincided with the liiie of big race—intending to connect with the Maerewhemia ' and the Big Hill. Frater is ignorant of tho fact that these lines are not coincidal. I sxibmit there should be proof that the line as shown and pegged out lias "not. been in compliance with notice given. On the certificates no point is defined—-about three miles from source being the loose form used. Not a tittle of evidence has been shown that the

race has not been constructed. Thomas Cooper had not seen the application ; no witnesses had seen notices posted, and this is a most important point. Howe and partv came into Court asking for forfeiture "on the ground- of ncn-cousi ruction, and this thev have utterly failed to prove. Suppose the two lines of race—the application for twentv. heads and the application for three heads—to coincide, would not this account for Evans' purchase? There' is .ortainly evidence showing they nearly did so, and none whatever to show they did not. On this ground the appellant is entitled to the protection of the Court. Another ground" on which this appeal should be sustained is: Supposing the race not constructed (and I submit this is not proved) yet prior to the laying of complaint, Frater'obtained .a-license from the Warden to shift the head of the race furthet 1 up the creek, and before summons was served, a portion of this altered race was actually cut for half a mile or so. This cannot be made out a case of forfeiture. Objections, should have been made to the renewal of this license in August, 1872. In that month notices were posted, and an application granted for alteration and extension, and objections should have been ma- le. JN o prejudice to existing rights has been proved under sub-section 5 of .Regulations. He posts notices and obtains grants, which shows that his license of 1869-"is still reserved to him. The Warden's decision would amount to this, that white giving Mr. ITrater full rj; ; iifc to cut a race two and a-half miles, not a droa of water shall be have. Should the Court'decide that the line of race lias noc complied i with, this should bo only a case for fhi?v '; Xo hardship to Howe and party, for, whe:Y.they applied, they should have' found out all -prior existing right.-j. Tho only slh) (if any) on Fraters part was that Wvans. who s6id ; ;to him, had 3iot 01/cained v. ri->;bt from. the"Warden to run both water vi<>-hf;s out of one'channel. This is a case for only a nominal line. One other p..,int is, briefly, that all renewals give leave to construct a race. Tho Warden having,, through the IST2 renewal, granted this,leave, .had no right to declare forfeiture.

His Honor remarked that, owinjr to the want of legal minds in the sp-eountfy OoMfiehis Courts, to point out the numerous errors in forms, &c., much complication f-n----suecl. ' He was aware "that a very general opinion was expressed against, forfeiture being allowed at all, and (we understood him to say) he would bo glad lo see lines only permissible. Mr. J. Eratsr, who was put in as a witness to prove the facts of purchase, etc., stated that he had spent" £(50! > on the race, and £\r>a for.the purchase of the same iTe understood the Wo lines of application to be identical. He had constructed about seventy chains of "the extension and alteration granted in bS72.

The cross-exaniinatiou brought out nothing of moment.

Alexander Kiach, bui.lder, examined: [was resident at Maerewhenua hi i#3:>. L was a director of the Enterprise Company. On that company's behalf I bought the.right to three heads from the Ben Lomond Creek. We had applied for twelve heads.of water from the M aerewheuua, for the Independent race. We had posted notices at the time of the application, 'i his race was never cut. r i'he application was objected to by Mr. Borton. die notice was -posted at the head or Kelly's Cully, near Big Hill, about lit'oy f. et lower than the present— Erater's—race. I understood that the three-head race was to go to Nimo and Cooper's claim on I>ig I ill. The Independent race would' not fetch Cooper's claim. It was forty to fifty feet below the Ben Lomond race.

By the Court: The grant of twelve heads was not taken up. A new application for twenty heads was substituted L knew the Independent was to be the name of the company. [ identity the' notice as being a product from that company. J. Byan, examined: I know the,race now cut from the Ben Lomond. I .saw water run eleven weeks ago in it. . Cross-examined: Water did not ran the whole length, owing to a breakage in the race.

By the Court: Iwntout on Fratcr's account to the head of the race. I have nut had anything to 0.0 wilh tiirn ; ng v.ahr at the head.

By Mr. Stout: I .have worked claim with water coming from , the. Ben Lomond and Camp Creeks.

Mr. Bowlatt held that two separate and distinct rights had been proved; that Prater's and Howe's raoe.-j were the only one's constructed. "W here was the third? It was declared forfeited by the "Warden, and rightly so. Frater reserved the ri':;i6- to the three heads, presuming he sold the other twentyhead right, therefore he, at any rate, recognised two rights. ' This alteration is to the

pre-jTillies ''sf existing rights. It .lias 'been shevn that Howe has vised this-water/ and therefore:, b / losing it, he will be prejudiced. It has been decided that subsequent work does not redeem forfeiture.

Mr. .Stout admitted two water rights, but; claimed that no proof had been made to show " these rights were not identical and fYaier very properly reserved one, which, on" application, he could have had diverted to another . level.

A few questions as to the date of application were put by the Court to Mr. fiiach. His Honor then suggested to counsel .the desirability of accepting aline, ample, and securing Howe's costs, awn both sides there were legal difficulties that would have'to be reserved for the Supreme Court. J-Jii adjourned the Court for s an hour, till" 9 p in., to allow ol consul ration. _ On the Court re-opening, although-the'ap-pellant's cor.nsel was willing to/come to an arrangement, the respondents would not. His Honor therefore noted the 'points thecounsel wished to be reserved.

b'or appellant:— Ist. Whether the Warden could declare in his judgment, all rights held under licenses i\rd2-6 4-74 forfeited, when vavx, of rights had, before forfeiture, been - passed vrith the jlew license to alter uhe rii.oe; and that the complaint doe.snot allege a breach of kog..daLions as . far as the new eerti Heave for alteration

and extension is concerned. 2nd. Whether the information is correct

Counsel held that, according to the--s Act (possibly the remissness,!, a race., ■ might bake twenty years in curistruction and yet bj exempt .from foifeiture, provided that it was continued with: 3rd. That, in the evidence, fchwrehasbeeij.no-. proof of au/y breach of section 11 Regulation xii. having been committed;. and only can any nejltet be shown' by ' section 2, which j1o?p n<it admit of fo»- ■ feitcre. . • ' The Court held a point over:— Whether the Warden has c.:\j power of cancellation over certificates at all. Respondents:— As to general jurisdiction of the Court, which* they do not admit. The Court hhsn adjourned. At a'u adjourned sitting-, yesterday,'hisHonor informed the Court thai", be held overjudgment pending,the decision of the Bupivme Court on some of the points raised, a-jd specially as io the the.-W-nrde?: in matters of f vfeituru.