MAEREWHENUA.—May 6th.

Mount Ida Chronicle, Volume IV, Issue 219, 9 May 1873, Page 4

MAEREWHENUA.—May 6th.

The prospects of this district were never so assured as they are at the present time. With plenty of water (floods and rain being pretty general of late), several of the large races within a few weeks of completion, and any extent of auriferous\ground, we know of no portion of the district which offers a fairer opening to the working man. Gretting views from the top of the hills on the road through the pass, it is quite astounding to consider the pluck of men, mostly without capital, who dared to enter those almost unapproachable gorges, to conduct water over miles of broken country to ground that had hardly been tried. No doubt capital has stepped in in many cases to bring these works to a completion, most notably through Mr. Gr. B. Taylor, whose spirit, so to speak, has created Maerewhenua

-—it is satisfactory to know that, lie will not go unrewarded. We observe that Mr. David Farquharson, long known in the Kyeburn, has timber on the ground to construct a residence. This gentleman lately bought in a one eighth share in the Mosquito race for £415. Avery's race on the south side will be completed in about six weeks, the race taking water at so low a level, will- command a constant supply. The Mosquito's furthest branch i into the Maerewhenua will be completed in about a fortnight, the whole race commanding a vast extent of: ground. ir Thomas Cooper's race out of Stony Creek is nearly completed. M'Cannand party's race is tabled out nearly to the head, and will be completed in about two months. The party have put up some sod huts for months. ■ This party deserves grea^>Ci*^'t^^j , r( .their perseverance, some having been at woi*k three years without retui'ns. The race will be one of the best properties on the field. Howe and party are said to be taking an ounce a day out of the. boxes. The- Little Wonder- claim is also giving good results. - ■ . Smiley's claim too, on the south side, is reported as sending gold away to Oamaru. Nimo and Allen's old claim—known as the Fiery Cross—and now in possession of Taylor and Davidson, is reported to be paying in seven ounces a week from the boxes, at the lowest. Botting is opening out a new claim a little better than half a mile higher up the original workings, and running tailings into the Awamoko. This looks well for the extent of ground on the south side. A race is also registered from the Otekaike, to carry fifteen heads, and Mr. Taylor is only watching the results of his other bold schemes, to enter into this one, which would be a great soui'ce of weall h to the diggings. We were enabled to obtain some statistics of this field, which we think may be taken as fairly accurate. Errors have probably arisen as to length of races construct ed, and as to the .water they may be expected to carry on an average, but we preferred to err on the low side than on the other. We find then that thefollowing races have 152 miles constructed.,, and forty-nine more to cut. On the south side—

Taking a computation as to average carrying capability that if published individually might create a storm around. our heads —we find that at the very least- these races will bring in 40| Government heads ; which, let at £3 per week for. a day of eight hours, would realise £18,949 per year. The value of th& water saved on Sundays would be £2,707, and should pay after the first year for management and maintenance. Taking this revenue from., the races, and dividing it into the number of shares, we find a nett result of over £3OO per sliare per aiinura. We guard ourselves byrepeating that we have taken the yery lowest * quantity of water in each. race. Many, no doubt, would calculate the water brought on at nearly double forty and a half heads. The result is very satisfactory, and sliows that this field promises to be one of the most - prosperous in the Province. One other calculation is worth noting. Forty and a half Government heads for eight hours is equivalent to one hundred- and twenty-one and a half for twenty-fours, hours, and one head should employ two miners. Hence w© have a mining population of 243 men. At preseut there is work for sluicers, and ,as each race is completed the demand will''increase. In the town: we notice that Mr. Crickmore is about to build substantial premises for his business. Mr. Gallagher will, we hear, shortly get his license—a memorial of 120 residents having be.en favorably received by the Superintendent, and the Licensing Bench at Oamaru. He is adding a large billiard-room on to his fine premises. Messrs Osterberg and Craig appear to be doing a good business at then* well known hotels, and we must not forget/to note the excellent meat in the shop of Mr. Sutherland, which shows the fine nature of the country around. -'-ke Mining Association has fairly taken root, and now it is pretty well agreed that uiiity is strength," although this was stoutly denied by Tommy the painter j who, on being brought to book for his. heresy by an indignant population,, declared that when he mixed the water with the whisky, the result was weakness. Warden's Court. (♦.before H. W. Bobinson, Esq., Warden.) HOWE AND OTHERS V. FRATER; % This was an adjourned hearing. Mr.

Bailey appeared for plaintiffs and Mr. Stout for defendant. Mr. Stout said that there were some objections lie wished to raise on the face of the complaint, which he thought would be suffito justify the Court in refusing to entertain it. Ist. On the face of the complaint the nonuser dates from April, 1872, or about a y ear prior, and is alleged as one continuous offence, and therefore one extending more than six months back. This being so, it was outside the Warden's jurisdiction, and consequently there was nothing for his client to answer. His (Mr. Stout's) position was also supported by Judge Gray's ruling in the appeal case Frater v. Howe, though, unfortunately there was no note of it in the Court. This dealt more particularly with regard to' the legal reading of the 106 th section of the Act. 2nd. On the face of complaint there, was no offence described. Defendant might admit complaint as true, and still the Court could take no action-. Complainants ask the Court to declare their title good. There is nothing in the Ilegulations to say when occupancy shall begin. The only declaratory power in the Warden is as to cases of forfeiture, cancellation, and penalties. 3rd. Assuming a declaratory power in this Court, this is not & question at all of superiority ' of right. The 4th sub-section can only refer to that class, of water rights not held under water license. The Warden has no power to alter date of license. If a lease is existing—say for sluicing purposes—it cannot be held that the holder is liable to the same penalties as lie who holds merely by occupany or miner's right. First, then, the offence is laid beyond six months, and therefore out of jurisdiction; second, the Warden has no power to alter date of lease; third, no date is fixed for th 6 license, nor holder named. Two kinds of right are recognised by Reg. xii. sec. 3—-otherwise there would be a clumsy superfluity—two rights, viz., one with and one without a license. If 4th sub-section applies to water licenses only, the two sections would beat conflict. The clause, then, as to the'thirty days does not refer to certificates at all ? as the Warden has no power of alteration of dates. Mi\ Bailey, in reply to the preliminary obj ections, said that Mr. Stout's first- objec bion fell 'to the ground because, the Court being chily constituted according to the 106 th section, page 104, it is relieved from the Justices of the Peace Act and the six months' limitation. Secondly, with regard to jurisdiction, if there is no jurisdiction under sec. 3 of Keg. xii., we could take forcible possession. The Ilegulations are framed to show a miner's right. i»eg. xii. commences by showing how . a right should be obtained, supposing a certificate/is in existence. Take an instance where a party proves a right was 'granted under false pretences, the Court would have a power of cancellation. The Warden said he had ruled differently, and his ruling had been affirmed, in the Appeal Court. '' ' Mr. Bailey continued: Supposing Frater held a right q,nd my clients held it through his neglect, could they take his right by force without coining into this Court ? There is no cause shown why this complaint should be dismissed. It 'might require ; verbal amendment, which is in the power of the Court. We shall prove that the right has been unused for more than thirty continuous' days. My- clients have not only had possession of this water for their own use, but have actually been selling it to others. With regard to date of certificate, we were in ignorance on that point, and if Mr . Frater does not produce the certificate, we must compel him to do so. Mr. Stout: I am content to accept Mr. Bailey's ruling as to section 106. If the Regulations are sufficient, why come to this Court? Supposing a dispute arises, there must be a complaint. Mr. Frater is charged with bemgtheholderofawater license—with nothing more than that he has paid money to the Government, winch, seems to Le an offence at Maerewhenua. The Court: With regard to the first objection raised, I find, on reading the 106 th section of the Act, it might be sustained either way, the language being ambiguous. I will reserve the point as to the continuity of the offence and the six months' limitation. With • regard to the Court's power to hear declaratoiy suits, I am hardly prepared without means of reference to give an opinion. I am inclined to think the Court has power, bein<* suppoi ted by the 62nd section, page 90, which says, ' to generally hear and determine cases connected with gold mining.", r Miv Stout: Exactly, "gold mining." This is dealmg with riparian rights, r The Court said it had been ruled that a watei lace was a claim, but not a mining claim. The question then is, is it in the power of the Court to declare the rights of parties, without an encroachtnent suit ? Then again, should not sub-sections 3 and 4 be read together, and two rights established of occupancy and by license ? He would reserve these points, if wished by both sides. He would point out the result would be that, if judgment was given at N.aseby, the appeal, if any, would be heard before Judge J whereas, if he was able to give judgment at once, the appeal would go to Oamaru. This , was a matter of indifference to the Court. . The parties agreed that the points be reserved. The points reserved then were:— 1. As to interpretation of 106 th section of the Act. 2. As to the declaratory powers of the Court. 3. As to effect of sub-section 4 of Regulation xii. —whether it applies only to licenses, and not also to occupancy without license. Mr. Bailey said: Howe and party are pos-

! sessed of a water license 1384, duly renewed, | and dated originally March 11, 1871- They hold a right to five heads out of the Ben Lomond Creek. They have cut .a race and brought in water to work their claim. Their right is a second right. Frater held a prior right (date unknown) under water license, which has been unused. They had used his water and let it, which showed, if there was an existing prior right, the ; holder would have interfered. It may be contended that this was virtually decided before Judge Gray ; but it was actually decided there was a forfeiture, but Judge Gray said nothing as to the case now raised, of superiority of right. The ground of forfeiture alleged by the Judge was the nonuser of the water. On that ground we now ask for the superiority of right. When I prove our use of the watei', in default of the man who had the same opportunity, and show the expenses incurred by my clients, the Court will support our complaint. : iP Henry Howe, being called and sworn, said: I am a miner at Maerewhenua, in partnership with James Howe and Samuel Bullen. I hold a license for five heads of water from the Ben Lomond and Camp Creeks. I completed my race ill February, 1872. The first, four months were dry, and the new race absorbed the water. From April, 1872, with the exception, of the last month or two before the rain, we have used the water. The last short water was about February and March. I have let this water at times to individuals. The defendant's race is a very large onethree or four miles long. He has never used nor, to my knowledge, taken water down the race from April, 1572, to the present time. From the 12th March last, dating back thirty days, no water was used by liim. [lt was agreed by both sides that from Ist February to 13th March should be the period during which nonuser should be shown.] Water would have been available for him had he .used his right between Ist February and 13th March. Cross-examined by Mr Stoiit: T don't know how many heads there might have been in April, 1872. ■ • - Counsel: Will you swear there were two heads in April, 1872, available? An objection was raised as to going back time limited, and the question was hot pressed. Cross-examination continued : I have no ' doubt there was one head in February and March, 1873. We did not sell any water then. We had not two heads. We had all the water that was available. T got a portion of a fine at Frater's expense—£44 for the non-construction of a race. During February and March Frater's race was declared forfeited. Litigation was going on in No vernber, 1872—at least before January, 1873. James Howe being about to be examined, his evidence was admitted by defendant's counsel as confirmatory of the last witness. As to the quantity of water during February and March, he said there might have been one head available from Ben Lomond Creek. We took all of it, be it much or little.. Mr Stout said he apprehended the complaint must be dismissed. J ■ Water available must mean water sufficient in quantity to enable a holder to take the amount of his license. Suppose a right existed for ten heads, and a. man cannot work his ground ' with less, can it be said water is available for him. If so, whenever a trickle is discernible then water would be available, and, if not used, a race must be forfeited. The only interpretation of water being available is that it must be sufficient. There was no water available for Mr. Frater—He was not bound to lead through his race less than three heads, i If this was not the meaning, Howe's money i and labor would be thrown away, as he him- j self had proved a nonuser during four months i of 1872. But, again, Frater could not use i his water during February and March; for, j if lie had, the Commissioner of Crown Lands i would have lodged a prohibition, the forfei- i ture being in existence. Notice of appeal* does not stay judgment. Judgment in the j Shotover case, it had been ruled by Judge Chapman, could have been enforced under the 81st section of the Goldfields Act. If ; he (Frater) had worked, he would have, been liable to be sued by Howe and party, | and to be proceeded against for trespass by ] the Commissioner for Crown Lands. The : judgment was only reversed on March 14th. j The complaint alleges that Mr Frater's rights I had begun before reversal of forfeiture. I' hold, then, that the matter being in custodia' legis, Mr Frater could not dare to work it. From July, 1572, to March, 1873, the case, in one shape or another, has been before the law courts. Mr Bailey says—We don't want a forfeiture—a forfeiture has been decreed—the whole property has been forfeited, and a penalty inflicted; but now we only ask for the "forfeiture of the right of superiority. The whole is declared forfeited, and then judgment varied; this does not alter the casebut now we don't wish that, we only wish the right of superiority reversed." The reversal of forfeiture cured all past defects. You are asked now to take one right that has already been dealt with in the whole. The complainants say—We got the whole forfeited, we got part of the penalty, and now we want a little more. Just as if a man prosecuted another for assault and battery and got him fined,, and then wanted to have him up again for the assault without the battery. Mr Frater, being sworn, said: I am a miner a.t Maerewhenua. I produce a license, No. 741, forfeited 30th November, 1872, and reversed 14th March, 1873. I received first summons in this case on the 13th July, for nonuser of race. From that time up to March 14 there was no time, of thirty days free from litigation. I had two summonses besides the first served on me, the complainants- being the present ones, Howe and party. Between April and July, 1872, we were working with

water from the Ben Lomond and tributaries. There was no period of thirty days during this time during which we were not either working at or about the race. Cross-examined by Mr. Bailey: I bought this race in June or July, 1871. [Mr Bailey here asked for title, which the counsel for the defendant objected to, as being unattacked the Court supporting the objection. J Since April, IS72> I and two others have worked at the race. In April, May, J tuie, and July we were repairing race, working in the claim, and sluicing. We sluiced with the water in question. The race was completed before I got it. ' I swear I took the water 1 from the Ben Lomond and all the tri-butaries-—not from Camp Creek only. We take water always from Pringle's Gully. Mr Bailey: Will you swear, sir, it was not from Pringle's G-ully you were getting the water, and not from the Ben Lomond ? Witness: I was talcing -water from both. T see you don't know what you are talkie about. The race carried the water. If Howe said otherwise he said what was not corrept —he knows better. Most decidedly Howe and party have used the water. I have not spent the half of the time in Naseby. I would not. disbelieve myself even if you were to get into the witness-box and swear so. Camp Creek is not a branch of the Ben lomond. Mr Smiley, being sworn, said; I worked for Frater in April, 1872. I left off work on the sth June. We were working on the Ben Lomond race, and opening up the claim by sluicing. I Cross-examined: We were working alterj nately at cleaning, repairing, and sluicing. Could not say as to time. The water came from Ben Lomond, Camp Creek, and its tributaries: I will swear distinctly the water came from Ben Lomond, Camp Creek, and tributaries. I saw water running in Howe's race at the same time. I was working for Mr Frater about six weeks, I have not been there since. Mr. Bailey: And therefore know nothing about it. ((Suppressed laughter.) John Ryan being swora, confirmed Smiley's "evidence, be being engaged by Crater. Cross examined : He said he was not aware of any remarks he had made, saving as to what he could say to pull Frater through. -Mr.-.'Bailey.: •• Was not -Frater taking the Camp Creek water. Witness: . Yes, it joined the Ben Lomond water in. the race. I will swear distinctly that Frater was using the water from Ben Lomond head. In answer to Mr. Stout, witness said he worked up to November 18bh for Frater. Cross examination continued : X believe the water might not have coine every day from the head race: I can swear that the head of "the water at .Ben Lomond was used. Ib was not only the water from I 'ringle's (jrully. In answer to Mr. Stout: I saw the water running distinctly-from the head of the race. By the Court: Witness explained that the head of the race being leaky, except when there was plenty of water it did not rea;-h down the race, a box with a flood gage he said turned the water into the race. Slips too occasionally occurred, and he sometimes visited the head tcPSratch it j and inferred from balk of water in the race, that Ben was in the race, as well as that from Camp -Creek. Only at times" of flush would water be available for sluicing, at other times they would repair the race. This witness. was closely pressed by Mr. Br.iley as to a slip of paper produced in a book as an accouht oi tune served with Frater. Counsel endeavored to discredit witness, who, however, was firm to his statements. _ Mr. Bailey : Ifc is very evident from the position taken up by Frater, especially with regard to a license—(Mr.- Stout objected as not being in evidence.) With regard to the position of defendant, and the appeal, and subsequent lapse of time intervening, the license was virtually during that time. (The Warden remarked this was Mr. Stout : s view). la consequence, my clients could not attack Frater, but on delivery of judgment, they have such a right of attack, and a superiority of -right w Inch they now assert. By Beg. xii, they, are entitled to come iuto this Court. Ryan's evidence is most unsai isfactory, he knows nothing and produces nothing, and his is all the evidence depended on. The Court in reviewing the point 3 already stated as reserved, said, that it was put in evidence by Mr. Bailey, that at the period from Ist February to March 13th j a ueglect occurred on the part of the defeudaut to comply with the and* the fact was admitted. This, however, is met by Mr.' SLout, who puts in evidence, a license endorsed with cancellation and forfeiture, also a subsequent reversal on March 14, 1873, and contends that Frater could not have interfered with the race then, it being iu custodia legis ; .also that Howe's evidence showed that there were not•, three heads at that time in the creek. tie would reserve judgment to May 15th, it Naseby, if that suited both parties. This was agreed to. Costs plaintiff £6 55., defeudant £7 3s.

Name of Miles Miles. Kace. Cut. to Cut. The Mosquito has - Bol ting's race - 23 0 s <120 9 The Band of Hope - .8 The Maerewhenua - 8^~- ' The Golden Hill ' - 12 4 . The Awamoko 6 0 The South Awamoko4 0 ISmiley's, South Grully■H' 0 Smiley's race 3 0 Avery and Henry's - 3 0 . Feraud's now Smiley's Cooper's lower race - ' 4 0 H - 0 ' On the west side— Mmo and Allen's 14 0 The Little Wonder - 6. 2 Do. do. No. 22 0 . Ben Loaiond race ' 4 12 Howe and company'sM'Cqnn and Co.'s - 9 0 12 -nearly v Do. tail race - complete. 1 0