WARDEN'S COURT.

Mount Ida Chronicle, Volume V, Issue 283, 7 August 1874, Page 2

WARDEN'S COURT.

(Before H. A. Stratford, fisq., Warden.)

In the Warden's Court of the district of the Otago Goldfields, sitting at Naseby, between Robert Donnelly, of Naseby. complainant, and the Hit'or Miss Water ' Race Company, registered (Henry Anderson, manager) defendants: Heard in the above-named Court on the 24th day of i July, 1874, and judgment reserved to and .given on the 31st daj of July, subject to "the opinion of the District Court on a special case stated. Special case for the opinion of the District Court. The complaint was as follows:—lst. That the defendants, at Naseby, having constructed a water race through certain ground situate on the east side of the Main Gully, at Naseby aforesaid, have left the same race entirely unused for more than the space of one calendar month : to wit, for the space of two years and a half last past, contrary to the Goldfields Rules and Regulations. 2nd. That the complainant has marked out an ordinary mining claim on the course of the said race, and is desirons of working the same: Wherefore complainant claims that the defendants- be adjudged to forfeit the said water race, in order that he may be enabled to work the said claim. At the trial before Warden Stratford at the Court House, Naseby, on the 24th of July, 1874, Mr. W. L. Bailey appeared for the complainant, Robert Donnelly, a goldminer of Naseby, and examined the complainant, who on oath stated that he, on the Ist day of July, instant, had marked off an ordinary claim at Surface Hill, Naseby, and that an old course of a water race was included in the ground. That the race had been constructed by the Hit or Miss Water Race Company some seven years previously, but had jbeen unused by that Company for three or four years—ever since the Company had diverted water from the top of Surface Hill. That the race had been severed in different places by several tailraces. That there was a break in the race twenty yards below one Duncan's claim. That the severances had existed two or three years. That the race had not been used since a certain fluming in the race called Lenane's fluming, had carried away two and a half years ago —the fluming having been about sixty yards in length. That the fluming was a portion of the race,- and had been removed by the Hit or Miss Company. That a small portion of the race now broken, perhaps forty yards of it, had been used recently by Duncan and Ireland to convey water to their claim which is situate at a short distance above complainant's claim. That the broken race pasied through complainant's claim, for a length of sixty feet, by five to eight yards in width. That the main race of the Hit or Miss Company runs now in another direction, returning to the broken race at a dam a quarter of a mile below complainant's claim. Mr. G. P. Rowlatt appeared for the Hit or Miss Water Race Company, and examined Henry Anderson, the manager of the company, who on oath stated that the race was granted in 1863. It is nine to ten miles in length, commencing at Deep Creek, and terminating at Naseby, opposite one Sullivan's hut, about three quarters of a mile below complainant's (Donnelly's) new claim. That the water does not now run in that portion of the race where complainant's claim is situate, but only in that direction down to Duncan's claim, which is a quarter of a mile above complainant's dam. That the water of the main race returns into this old race again at a point 160 yards below complainant's claim, at a certain dam. That the water of the main race has been diverted from the portion spoken of .by complainant for a certain time, but will be resorted to on some future occasion. That the old line of race complained about.has. never been abandoned. That the severances in the origiginal line of race (referred to by complainant) have all, except one, been flumed That Lenane's flume was knocked to pieces, and a new flume will be built across to connect the main race and the part complained about when Surface Hill is worked out, in a year or two. That the broken race was a portion of the original line of race, and that the race was diverted by permission of the Warden, as shewn on certificate No. 4131, ou 19th July, 1869, and from that time the race has been diverted. That the diverted race has been .used ever since. That water has been turned iuto the old race occasionally from the diverted race for the use of parties requiring it. The defendants produced original certificate, No. 01740, dated 10th of-Dee. 1863, for three heads. Also, license No. 521, dated 12th June, 1866. One application for the race was posted at Deep Creek, and the other at opposite Sullivan's hut—being three quarters of a mile below complainant's claim. Mr. Rowlatt then advanced some legal objections to the complaint, and questioned the jurisdiction of the Warden's Court to decree lorfeiture. Ho argued, Ist. That the complaint is worded for breach of regulations of Goldfields Rules, but no section or regulation is named, and that section 11, Regulation XII., is the only section and regulation that gives the Warden's Court power to decree forfeiture. 2nd. That the alteration of the race maintains, that is to say, does not affect, the right to the original race. 3rd. The Warden's Court has no power to declare forfeiture of a race, although it may have of a water right. 4th. That section 6, of Regulation IV., of the Goldfields Rules of 1863, is the section to be guided by in deciding, as the race was granted in 1863. sth. That the Warden's Court has no power to decree forfeiture of of a race. Mr. Bailey, on behalf of the complainant, replied that the defondants had brought their rights in question under the operation of the Act of 1866, especially by asking, under rules made under that Act, for permission to divert their race from its original course in 1869. The Warden, after reviewing the evidence, and considering the points of law raised by Mr. Rowlatt, gave it as the opinion of the Court: Ist. That section 11, of Regulation XII, Goldfields Rules, is a transcript of sub-section 6, Section XXI., Goldfields Act, 1866—that being the section under which .he Court had jurisdiction to decide the case. 2nd. That, by the interpretation clause in the Aot of 1866, a water race docs not mean a water right, as argued by Rowlatt, but a ditch. 3rd. That the word entirely does not bear the meauing put upon it by Mr. Rowlatt, as referring to the entire length of the race, but refers to the entiro and complete disuse of the ruoe, or portion of the race referred to in the complaint, and for the period mentioned. 4th. That the race, so-called by the complainant, by the language of the complaint, refers to a cer--1 tain ditch on the east side of the Main

Gully (Naseby), commencing at a point where the original main race of defendants was diverted in 1869, by virtue of a certificate Jf o. 4131, and. dated 19fch of July, 1869, and terminating where the diverted race again joins the original main ditch at a certain dam said to be 160 yards below complianant's (Robert Donnelly's) new claim. sth. That the Warden's Court is only called upon to decide as to defendants' liability to forfeit the deserted ditch, and not to entertain any matter having reference to the head race from D«ep Creek to the dam 160 yards below complainant's claim, in its present course. 6th-. That the license or certificate for the water race of defendants, granted in 1863, and partly diverted in 1869 (which has been renewed year after year) by its latest renewal, and since 1869, refers to a raje nine miles long, commencing at Deep Creek, and terminating on the east side of Main Gully, Naseby, diverging away from its original course (of 1863) at tin? top of Surface Hill (Hogbura), by virtue of certificate 4341 (19th July, 1869), and returning into its 0.-iginal channel at a dam situate about 160 yards below com plain - ant's new claim. 7th. That the old original water ditch of defendants, used by them up to July, 1869, from the point of diversion at Surface Hill to a certain dam 160 yards below the complainant's claim, has been abandoned, and entirely unused by the defendants for a space of two and a half years, as alleged by the complainant, saving only a length of about forty (40) yards from the claim of Duucan and Company (a quarter of a mile above complainant's claim) upwards, and that such abandoned race therefore from Duncan's claim downwards, through the complainants' claim to a dam 160 yards below his claim, is liable to forfeiture. The judgment of the Court would be, therefore -. — That the water race of the defendants, from Duncan's claim at Surface Hill to a certain dam 160 yards below complainant's claim at Surface .Hill, having been abandoned, and entirely unused for a '» longer period than one month : to wit, for two and a half years, the said race, from Duncan's claim to the aforesaid dam, has become liable- to forfeiture, which is hereby decreed accordingly, with costs of Court, 13s , and £1 expenses of complainant, also 10s. to one witness.-—By request of defendants, made oh their behalf by their counsel, Mr. G. E. Rowlatt, judgment was reserved for the opinion of" the District Court on four points of law : Ist. Was the Warden right in holding that * the words "entirely unused" are to be interpreted as referring to the complete disuse, without interval, of the portion of the water race referred to in the complaint? That is to say, is the above a proper interpretation of the meaning of these words, as they appear in section 11, of Regulation XII., Goldfields Rules, and in subsection 6 of section 21, Goldfields Act of 1866, and that they cannot be interpreted to mean —that, if any one portion of a water race, however short, has been coutinually used, that that continuance of use would be sufficient to protect - and save from liability of forfeiture the entire length of race of portions abandoned, and those from which the water has been completely diverted ? 2nd. Was the Warden right in holding that the proper course of the defendants' water race is the present course from source to terminus, and that the defendants cannot maintain a right to the original course also, when they have legally altered, and diverted the said race, and chosen a new permanent ditch (granted by certificate) to carry their water ? 3rd. Was the Warden right in holding that the Warden's Court had power to decree the forfeiture of the - lesser, that is to say the portion of a water race, if entirely unused, by the same power (under section 11, Regulation XII., Goldfields Rules) that provides that it could decree the forfeiture of the greater—that is, of a whole race if unused for a period of two months ? The Warden gave notice that, in the event of the District Court's opinion being adverse to his ruling, he should give judgment as follows—that is to say, should the opinion be that the word " entirely " refers to the entire length of a race, and not to completeness of disuse of the portion without interval, and that the diversion of a race does not deprive the ownersof the right to the ditch formerly used, but that the said ditch is part of the main race, although no longer a channel for the water, and must be considered to be in use as long as the race it was once connected with, and originally belonged to is in use —then the case will be dismissed, with ten (10) shillings expenses allowed to defendant. Should the opinion be that the words " entirely unused " are rightly interpreted by the Warden, as referring to complete disuse of any portion of a water . race referred to in a complaint, but that, on proof of such disuse for a period exceeding one calendar month, the entire race, and not the portion unused only, became ! liable to forfeiture, and that this forfeiture cannot be less than the whole race—then a penalty of £lO will be imposed in lieu of forfeiture of the race, with Court costs and expenses, £9 of penalty to be paid to the complainant, and £1 to the Crown. Should the opinion be tliat, in the case stated, the Warden's Court cannot decree forfeiture, the decision will be—that the Court lias no jurisdiction. The following Question has been added at the request of efendants: Has the Warden's Court power to forfeit for disuse a water race; that is lo say, a ditch or channel in which the water runs, without forfeiting the water right which gives the holder authority to divert the water ?

JtTtT 31st. R. E. Field v. Guffie and others.—For having neglected to renew their water race license, No. 2643, contrary to the provisions of suh-section 7, of section 21 Goldfielcls Act, 1866. Before giving judgment, the Warden informed the de" fendants that, although hitherto it had been customary in the district to renew forfeited licenses without judicial proceedings, such a course imperilled the right, as it was questionable whether the renewal could be held valid tinder such circumstances. He had therefore directed, in the case of those interested, that in future the applicants should become defendants in the Court, to appear by summons to answer to a complaint to be made by any person who would take cognisance of the breach of the law. He did not wish it to be thought that he had determined upon this prooedure in future with any sinister intention, as the alternative of decreeing fine in lieu of forfeiture would still be open, and probably as often adopted as hilhertoiu cases where the neglect-had not been shown to have beeu wilful in any degree, but it must be be me in mind that it was the Warden's Court, and not the Warden that had power to exercise the 115 th section of the Gold-

fields Act, 1866; and that the Court could not act by itself, but be set in motion by complaint. He hoped, therefore, that the water race licensees in this district would hear of this decision, and endeavor to procure the renewal of their licenses within the time proscribed by law, 80 as to avoid having to pay the usual Costs of lis., besides the expenses of a complainant in each caso. Judgment—nineteen days having only elapsed, a nominal penalty of Is. would bo imposed in lieu of forfeiture of the license. Hearing and order, in this, the first caso of the kind, remitted, 2s. Court posts, and 6s. expenses of complainant.