WARDEN'S COURT.

Mount Ida Chronicle, Volume IV, Issue 256, 30 January 1874, Page 2

WARDEN'S COURT.

Monday, Janttaby 26th. (Before H. W. Robinson, Esq.,' Warden.) Cooper Bros.. (Band of' Hope .Company) v.' the Enterprise "Water Race" Company (registered)."—This.''case 1 -had been adjourned from the 22nd insfc., to allow of the plaintiffs producing their miners' rights.' The complaint Vas—" That thedefendants did,.-.in,.the-month of May, 1872, interfere with, and from thenceforward to and during the month, of f Janu-' ary, 1874, have interfered with the' registered head race, No. 2630, " v belonging to the plaintiffs, situate at Mount'lda afore-' .said, by .allowing water, to drain into, and damaging a tunnel, being a portion of the head said race, cpntrary. to the Groldfields -Rules and Regulations, whereby the plaintiffs have suffered damages to the extent of '£6s 12s: 6d.':" "And the complainants! asked for the recovery of that sum, ,as damage's for''the alleged interference. The defendants pleaded general denial.' On the plaintiffs' miners' rights being' produced, it, was seen that one of-the" plaintiffs had hot held a right' in May, 1872, and that the right of another plain-tiff'had-an" interval ot-'three months between the expiry.pf-, one right and the issue of the,-nest. ; -For the defendants, Mr. Rowlatt, intimated his intention J of | raising certain objections to 'the plaintiffs'title at the conclusion of the case. The' plaintiffs' case was gone into, under the' s di-! reetion of Mr. Bailey, at "great length;'so : that we s are unable to give' more"'than a sketch of .the'facts proved.' "It was shown i that the plaintiffs'' at one point in its course, ran through a tunnel, and that the'def endants' water race crossed the_line of this .tunnel t surface towards the exit end of the" tunnel/ The damage was' shewn 'to have been causedby the failing in of the tunnel on different occasions principally towards the entrance end of the tunnel. 'I his the plaintiffs attributed* to the-water-leaking from the Enterprise "Race/ and 'evidence? was given to shew that the soil under the Enterprise Race-was-'gravel,! resting son'a clay bed. This'clay-'bed,, in which,-the tunnel was cut, the plaintiffs proved had a general fall toward the entrance end of the tunnel, and the reason alleged for the damage entrance end of the tunnel, .while„ ; the Enterprise' Race was nearer the exit* "end, was'"the" water leaking through the gravel, "and following the clay floor towards the entrance of the tunnel. For the defendants, evidence was called, -showing that .there breaks .in this tunnel before the Enterprise' iiace was cut over' it. **THat the ' tunnel was not sufficiently, timbered, i.and that, generally, tunnels in the ground about INaseby would* not'stand for. any length, of lime without being Will timi befed. ' Also, it was proved,' that at |ne. point'm"the tunnel,''*,near 'the'-'point 5 at 'which'the Enterprise 'Race'crossed; 'the, fall of the/clay bed'was towards,'the" exit end'of , the\tunnel./'''This"ha^,be : en;te'sted by three witnesses with J a I 'spirifc i level. The Enterprise Race was stated'to be"in good repair, and the certificates for the race," dating frond November, 1870, were put in and admitted. The Warden' came to the conclusion-that, although the Enterprise Race was not to be taken as having caused ,the whole of.the damage proved, still it had contributed to it, and • .with this view* gave, judgment for £2O 12s. 6d., with costs'£3 125., reserving the following points of law raised by Mr. i Rowlafct,. against" the plaintiffs' title to sue :—(1) That the Warden could not entertain the complaint, his jurisdiction, un- J der the 106 th section of the G-oldfields ' Act;, being limited to causes of action- 1 arising within six* months from the date of complaint. ,(2) That the right to cut a' water race gave no right to take thatrace through.a tunnel. (3), That, owing to the hiatus/in the- plaintiffs' miners' rights, the title. to their race had become inferior to the'defe'ndants'.