DISTRICT COURT.

Mount Ida Chronicle, Volume V, Issue 284, 14 August 1874, Page 3

DISTRICT COURT.

TinrnsDAY, August 6. (Before hie Honor Jurigo Wilson Gray.) Guffie nnd Party, Appellants; Christian and Party, Respondent*.—Apppal against deeisiou in Conrt, N aseby. Mr. Rowlatt for appellants, Mr. Mount for respondents. Mr. Mouat said this was one of a class of cases in which his Honor was very familiar. Respondents were owners of a water race. He did not intend to raise technical objections, as it was desirable to hare the case decided on its merits, to ar-

rive at a decision to be a precedent. Defendants originally took possession of a water right, five heads of water, which appears to be about the supply available, at the Little Kyeburn Creek. About three-quarters of a mile or a mile above the point of departure the creek branches, each branch sending down an equal supply. About 1868 some of the appellants took up their ground (our title being as old as January, 1866), a claim above one of these branches, and commenced to turn down tailings, which were troublesome to the water right below. An action was then brought by plaintiffs against some of the present defendants. His Honor himself having visited the ground, in that case the Warden's judgment was affirmed. This should have satisfied the defendants as to the law of the case," but they seemed to have made their minds up to get the Elaintiffs out of their - way—seeming to ave as. great a desire as the king to enjoy his neighbor's vineyard. At the present time tailings are being passed into the left band branch of the plaintiffs' race. In this case the Warden has repeatedly sustained the law of the case, as laid down in 1868. The result, as the evidenco will show, ol the interference, on which the present action is based, has has been to deprive the plaintiffs of 1873 of their right. None of the water now comes clear to plaintiffs. In order in a measure to mitigate the mischief, defendants cut a race from the right branch of the creek to discharge into the. plain tiffs race. Being a very inefficient substitute, and from the circumstance that the head of the race is higher up than the original point of departure, only one half of their supply is received; but even this was nullified by the tailings still choking up the head of their race. Tne defendants have proceeded in a most high handed manner. There are now three parties, and, as they increase in strength, they seem to think they will be able to divert the plaintiffs from their right. There parties have gone there since your Honor's previous decision. The costs in the Court below are most inadequate. The proper course would have been to have asked for a permanent injunction—which they have not done, nor either an interim one. It was proved that about ten times the damages given had been sustained. This appeared to be because the assessors were actuated by a desire to injure the, defendants as little as possible. Therefore I shall very strongly urge upon the Court, at the proSer time, the propriety of increasing the amages.

Mr. Eowlatt: Why; upon our appeal ? Mr. Mouat: Yes ; upon your own appeal. Had the defendants not appealed on tha question of costs I have evidence to show that the plaintiffs would have appealed—indeed, it might have been better if they had cross appealed. It would be simple folly for the plaintiffs to seek protection at all- if adequate damages are withheld.

In answer to his Honor Mr. Mouat said that the plaintiffs did not seek a permanent injunction.

His Honor: Continnal damages would amount to the same thing. Mr. Mouat: Yes ; your Honor. Mr. Mouat then read the previous judgment. He remarked that the defendants having increased the supply of water sent down, there was more than fine mud sent down—it amounted to stones and gravel. The plaintiffs did not object to the mere discoloration of the water. He would then hand in the miners' rights and title. FT e thought it would be not necessary to hand in the title as in a case of priority of water right. Mr. Eowlatt would not admit the title.

Frederick Caspar, called, being sworn, said he was a wages man in the employ of the plaintiffs in this case. He knew the plaintiffs' race. Recognised the tracing handed to him as a tracing of the race, to the best of his belief. I see there the side race. This is the race defendants cut from the right hand branch of the Kyeburn. I point out the source of the plaintiffs' supply. In December last I was working for plaintiffs, and on the 18th went up to the head of the race. The race was choked up with tailings—completely choked up—only a littla water coming-in from the side race. The tailings came from defendants' claims. Between December and May I was up seven times. On each occasion the race was choked up with tailings. There was a little water except* on one occasion. About a head and a half was flowing in the creek—sometimes three heads; while about a cradle head was in the side race. On 18th December, sth, 10th, 11th, 14th, 23rd, 26th February, and 6th March I was up and cleaned the race as much as I could. It was impossible for one man to clear the race entirely. I saw James Thomas, a servant of defendants, when up at the race. He was doing nothing when I came up. He was lying down behind the rock. He would nofc even help me. He told me he was sent there to turn in the water and let the tailings go over the falls. On some of the occasions after I had cleared the head it would have been blocked within two hours. It did actually block up in less than a night time. I have seen the workings at Clarks, and have seen tha tailings discharged from them. The tailings are similar. Some of the tailings were as large as large stones. They go five or six yards down the race. They occur so as to obstruct the head race for about half a mile of its course. At the end of the half mile it would be fine sand.

Cross-examined by Mr. Rowlatt: I said I was at the head of the plaintiffs' race eight times. On the 18th of December there were about eleven Government heads of water in the creek. A Government head is forty inches by one. The side race would not in parts carry a head of water. It would not discharge a head of water. In some places there is a great fall, and other places the water is quite dead. I have never seen it carry more than a cradle head. Don't know what Enrt of a Government head, a cradle ead is. A cradle head means enough to keep a; cradle going. It might be forty, fifty, or sixty such heads to a Government, head. On the sth February the supply in the creek was much about the same. The water I have seen pure on occasions, but tailings coming down on the bottom. I was the whole day clearing the tailings, but did not finish—only sufficient to carry what Water was in the creek. On the 10th there two or three heads of water coming, thick with tailings all the time. I was there. On the 10th I was there two or three hours. They were working then at Clarks. I was told so.»» [His Honor: That is evidence for you, but not for us.] I cleared the race lately out, about eight inches of tailings, for about twenty or twenty-five yards, enough to let the water in. I have seen tailings a foot deep twenty or thirty yards down from thd

head. There is a trap just bo-low the head of the race in the creek, and I wanted to shift it, and let the water down, but a njarr told me when I shut it that it was no good, as he had the order from his employer to turn the water off, to let the tailings through. The next day I went back there was about one and a half head in the creek, and about one head in the race I don't think the defendants were working on the 11th, but tailings were coming down. I was clearing out tailings all day on the lltb. About half a head was escaping, as the race ten or twelve yards from head was so full of tailings. There is a dam right across the creek to turn the water, and a box. The box is closed on three sides, and placed three or four yards below the head of the race—in the plaintiffs' race. The trap is in the bottom of the box. The half head escaping was not escaping through the dam, but overflowed the box. On the 23rd the race was as on the sth. On the 14th no water was coming in, except from the side race. There was about three heads of dirty water going down the creek; There was no rain between the sth and 14th to increase the natural supply in the creek. I spent five or six hours that day shovelling tailings. I could not clean it.. Two men could not do it. On the 23rd there was about a head and a half in the creek. I shovelled tailings all that day. On the 26th there was no water coming in, but about three heads in the creek, and the usual cradle head in the side race. I made a note of all these dates myself; what I saw, and what I did. On the 6th March there had been no rain since I was there last. I was there all'day (five or six hours) shovelling tailings. There was no more water in the race. There was about a head and a half in the creek. I could not call it clean water. I was not at the Hogburn races that day. The sand half a mile down the race would make a head or two heads difference. I could get six inches of sand at that distance. In one or two days the sand would accumulate six inches half a mile down. It might take perhaps a week, or less. I know the second creek. It joins the rape about a half or three-quarters of a mile from the head. It comes from Eyeburn Hill. I have found fine sand just before you get to the creek—six inches or more—white sand. There is not blue mud thrown out of the race. I never threw it.

Alexander M'Fadyen, being sworn, said : I have been a gold-miner. I have been out at the head of plaintiffs' race. I was out there on the 25th April last; also on the 27th, 28th, 29th, and 30th, and May 2nd, 6th, 18th, and 25th. I noted those day» at the time—nine occasions. The race was filled with tailings—completely choked up —extending down about half a mile. No water was going out of the creek into it. Prom one and a half to two heads generally, and as much as four heads, was flowing down the creek. I cleaned out the race as much as possible. Could not completely clean the race. About half a head was generally flowing in by the side race. The tailings were white sand and stones, some as large as a man's hand.

Cross-examined by Mr. Eowlatt: Since the month of March I have'been a goldminer. I have been goldmining three months. Am not mining now. I have seen, on one or two occasions, some one coming down towards the race. I would speak to them when within speaking discontinued working, and did not gb and hide or lie down when I saw anyone coming down the Kyeburn Creek. After I had got the race cleaned in one day's work I could not keep the water running freely. The tailings in a head and a-half of water were too much for me. I was receiving full wages as a miner. I did not tell the Warden my day's work would give my employers 12 hours water. I believe the Warden took it for granted. I am sure. To the best of my knowledge, I did not specify a time as to which they would be benefited.

Frederick Christian, one of the plaintiffs, sworn, said he was one of the original owners of the race. The plan produced represents the branches of the Eyeburn, our head race and the Fide race. I was one of the constructors of the race. The documents produced are the titles to water rights from two branches, We were antitled to—under the first right—one sluice head, and the other to fourthe ditch being the same in both. There were no workings at the head at that time, in February, 1866. The water was quite pure. It is one mile and three quarters between the diggings and our head. The workings up the creek began in 1868, so I heard. I have been frequently up to the workings. There are no other workings. Have traced the tailings up to their sluicings. On the 15th December, Bth 13th, 14th, 19th, 22nd, and 24th January, March 9th, and April 25th, 27th, and 29th I visited the ground. The race was always full, or nearly full, of tailings. The white quartz tailings were the only ones I noticed. There was a little water—from a cradle head to half a head—going in from the side race, and sometimes a very ilittle from the creek. Some days 'there was a head and a half, and some times up to four heads running down the creek. It was necessary to clean the race out every day in that wav. From the creek we lost, during the time complain&l of, nine-tenths of the water. We have lost, by this loss of the water, £2 per diem, for over 187 days, I think. This is calculated by the results of the ground with the water available, after paying full expenses. The side race has been constructed by the defendants in mitigation of the damage caused by the tailings. The side race, at the extreme, has carried two and a half heads by measurement. It was then in good repair. The loss in clearing tailings has been about twentyeight or twenty-nine days' work for one man, at 10s, per diem. On or about the 18th or 19th December, and the 26th March, I was? up at Clarks and found some of them working- Guffie's party one time, Thomas' party another. Tailings eamedown from all claims. A good deal of tailings are in the gully below their workings, whieh still continue to flow down and obstruct our race. The trap or box referred to by the first witness I can explain. After the judgment of this Court, in 1868, they tnought they could arrange a plan by which they could skim the water. They raised our dam about a j* ? r e *Kkteen inches high, and connected the race dam with, our liead by a box about eight feet long by fourteen inches m height and depth, and open at the top. Une end rests in the dam and the other in our race, and the space bet ween f under the box, is open underneath for four or five feet. A t the dam pnd of the box is a trap-door, hinged on to the bottom. When closed, the water is cutoff, and the tailings and water escape below. The idea was to partially raise the trap, by which

it was thought that the water w.-nld fln W into our raee and the tailings go below the ledge—but it failed. I found the tailing.-; obstructing the-race for about half a mile —at the head, completely full. I mean sand, not sludge,, .for about half a mile. The tailings were flowing at the bottom not in suspension. Indeed, as to sludge, we find that, seven or eight liiiles down, it costs us from £SO to £6O a year to clear the sludge out. Mr. Mouat: Suppose someone else occupied the ground, or ot!:er auriferous ground, what would you charge for the water? Christian: I> would not sell it for £1 per diem per head. Mr. Mouat: Suppose the position reversed.—you had the ground and someone else the water ?

.Christian: I would have given £1 per diem j>er head for the ground l am now in.—There are a few miners have water at the Kyeburn. One party is waiting on us for water now. We have agreed to the terms—3os. per diem for one head. The ■party are going to a week's \york to clean up an old race of ours to carry it. The point they will take it from our race is about five miles from our claim. About a week in March, during the 185 days, we had a supply of water, owing to freshes down the second creek after rain. On 12th January, 1865, we applied for a race from the second, creek—properly a right-hand branch of the Little Kyeburn—about half a mile higher up than the present race intersects the creek. We constructed that race into the Kyeburn, a distance of thirteen miles. In October, 1866, we applied for water from the Little Kyeburn. The race from Little Kyeburn was to join at a point in the thirteen mile race, two miles from the creek. We used the latter right as a connector. We held one head of water from eaca creek. In 1866 the party then applied for four additional heads from Little Kyeburn, and abandoned the second creek altogether-as the supply was not a permanent one—at least so much of it as extended to the two-mile right. The party applying, when applying for the four heads, applied for the fourteen mile, race as a whole—that is, the two mile race and this thirteen mile race. I saw the error at the time. _ It was not stated as an additional water right, but as a new one of four heads for a race fourteen miles long. Cross-examined by Mr. Eowlatt: Certificate, 24th Feb., 1866, produced. I claim one head of water from falls of Little Kyeburn under that certificate. I was one of the applicants. The race was nine weeks in cutting after issue of the certificate—l2th June, 1866. (Certificate produced.) I have a share in the property, as shewn by that certificate, though not a working shareholder at that time. There is only one race from the Little Kyeburn. When the certificate for the race on the 12th June, 1866, was granted, it had been cut. I know it was enlarged .at that time. John Langlands made the application. I cannot state the difference between the two certificates, nor did I see the notices, previous to the issue of the certificate, posted. I traced the tailings to the Clarks workings twice; but I don't know the dates. Sometimes the water comes in a clean state into our race : not quite clean, owing to the tailings travelling down the creek at all times, whether defendants are working or not. The side race cuts two small branches, but they are insignificant; You would hardly get a drink in them. On these occasions on which I was up, I had M'Fadyen with me part of the time. I heard M'Fadyen's evidence. I don't think it was M'Fadyen; it must have been Caspar. I heard Caspar's evidence. I don't know whether he said he was there or. not. I had other men employed —Webb and Bloomfield. Don't know I who went with me at the particular time. My notes would not shew it. We laid this complaint three times before getting an hearing. I can't remember how much damages we claimed the first time—the 27th November. I think it was £l3O odd. The next time it was £2OO odd. The 9th of March might have "been one of the days on which a little water was running over the tailings down the race. To the best of my belief, there never was more than half a head in the side race. It was the 9th of March. It might have been the 9th-of May. [Mr. Rowlatt: You are swearing by your memorandum.] There was a fresh in the Creek during March. The box referred to in my examination, was put in to try and avert the damage. The defendants put a couple of gates in my race to run the tailings out, one about ten yards below the trap, and the other might be fifty yards. They are about ten yards below the mouth. Have been useless for two years, being worn out. I could not say how many times we have got damages from defendants in this old case. Had no suits against defendants before ceasing to have an interest in the case. There was no sluicing at Clarks when I left it. Macready and Coombe are the party who wish to take water from you. We promised them it for a week or ten days—the want to run away the face of the hill to get at the coal seam. Have let water to Williamson. I did not consider I, was selling it. I was giving it to him. I just took 255. a week off him for it. I have not sold him water since then; Could not say the largest amount of damages we have got. We have got damages five or six times. Wo have not got so much as we are claiming now—nor equal to the loss we had sustained. We have now another case in the Warden's Court, pending judgment, in which we claim £l9 10s. I think the part of our race in use.is about fifteen miles long, not counting the branch about throe miles, now being cleaned by Macready. Our race would require cleaning occasionally —not much after the first year.

lie-examined bv Mr. Mouat: As to the injunction jumped our ground and applied for'a lease. We had four months' running in the sluices, and they jumped that too. Indeed, I caught them trying gold in a shovel in the sluices. I don't know that they would have got rid of us if they had succeeded. Mr. Rowlatt: I think you had no claim to jump. < Witness: Well, we claimed it as a claim. [The Court left sitting.]