FORFEITURE V. FINES ON THE GOLDFIELDS.

Mount Ida Chronicle, Volume IV, Issue 217, 25 April 1873, Page 3

FORFEITURE V. FINES ON THE GOLDFIELDS.

The case heard in the District Court at Queenstown, before Judge Gray, deserves notice. In its ; features it greatly resembled that of Erater (appellant) v. Howe and others (respondents), decided at Naseby lately. In both cases forfeiture was claimed on the ground of a non-user of a water right —the only difference being that Eobertson, the defendant at Queenstown had taken measures to keep his water right alive, by letting it at nominal rents to parties of Chinamen and others —-whereas Erater had practically let the water escape to Howe and party, who held a right below him in the same creek, without making any bargain with thenl for the use of his right. If he had done so, there is no doubt that, as Howe and party used the water continuously, he would have saved the forfeiture he really incurred, which was varied by the substitution of a heavy fine. ; At Queenstown two creeks run from the mountain to the lake, one known as the One Mile Creek, and the other as the Two Mile Creels, jjn 1865 a Prospecting Association was formed, in order to test whether the terraces around the town did not contain payable gold ; and to do this the mem- : bers determined to bring in the water ' from these two creeks, for prospecting purposes.. They obtained the usual certificates for two water rights, one head from each creek —being about as much as probably could be got. The race from the Two Mile Greek was carried to the One Mile Creek, where it joined the water of that creek, and from there the joint water right was to run " from a point half way up

" the creek to the lake," parallel, or nearly so, to. the of the creek. This race Avas constructed on the side of the creek farthest, from Queenstown. After a time the races changed hands, finally coming into the possession, in a legal way, of a Mr. Eobertson, who bought the rights from the last holder (one Beer) for the sum of £IOO. The complaint against Eobertson was, that he had rendered these races liable to a forfeiture under sec. 11 Beg. xii, not having used them for a long time past. - It was urged as showing a non-user of the race or races, that the dam at the junction of the two rights, having; broken away, the water had been allowed to_ run in. its natural channel,, and it was even attempted to be shown that there was no race to use, it having been worked out along with the ground, by the original prospecting party. Eobertson, by arrangement, let his water right to different parties.of Chinamen—and latterly, to Europeans—two of. whom, Powder-faced-Jim and Nobby, gave out that they had found a twenty-one ounce nugget in the creek, and obtained leave from . Eobertson to work out the, ground under the dam, he intending to put in,' a new one. The Judge held that up,; to August 1872, Eobertson had incur-" red no forfeiture, except possibly, on the point as to allowing the water torun in the natural channel, instead of the race—which we must bear in mind was cut, and en that point he (the Judge) did not give an opinion. Then, however, the weak point occurred. It appeared that Eobertson, in 1870, had obtained an authority from the "Warden to alter his One Mile race, with the view of carrying it to the Queenstown side of the creek, and on to some freehold land of his own, where was a natural reservoir. About Augiist lGth, 1872, a miner named Mayne, who was using the water, left—and Eobertson determined to make use of his alteration ; but, before doing so, time was taken up in taking levels, and even in ascertaining if Mayne had left. Be this as it may, it was November 4th before Eobertson broke ground in cutting this new race (the alteration), making a lapse of time of nearly two months and a half, during which a non-user was certainly established. On this ground, and at this time, the Judge held that a forfeiture had been incurred, but considered, as in the case of Erater, that it certainly could not be shown that there had been any " aggravated neglect," which was the fact in the celebrated case of " Thorn- . son v. Begg," quoted by. Mr. M'Earlaneinhis 'Digest,' although the compiler had misled the Warden at Naseby, by translating Judge Molesworth's strong expression, " a case of the most " aggravated neglect that had ever come " before him," into merely an expression that there had been " undoubted " neglect" The Judge then varied ' Mr. Warden Beetham's decision, by declaring that a forfeiture had been incurred, but that there be substituted a fine, of £25, to be paid .to appellant, which was the s sum named by his counsel as sufficient to indemnify him for the expenses he had incurred. It will be seen that the "Warden at Queenstown dealt too leniently with the original complaint—dismissing it with costs —while the,"Warden at Naseby dealt too hardly apparently, decreeing an absolute forfeiture. The Judge, in both cases, took advantage of sec. 115 of the Act, which he looked upon, he said at Queenstown, as a most valuable protection to water race property, which, more than any other kind of property, was liable to become forfeited under circumstances that would make the forfeiture harsh and unjust, and opposed to public policy. We are indebted to the note "of judgment contained in the ' Wakatip Mail' of April 9, for our information.