WARDEN'S COURT.

Mount Ida Chronicle, Volume V, Issue 285, 21 August 1874, Page 3

WARDEN'S COURT.

'Monday, August 17th. (Before H. A. Stratford, Esq., Warden.) Christian and others v. Guffie and others.—This case was heard on the 7th of August last, and judgment was reserved until the 17th instant.. As the question in dispute is of considerable interest, we append a full note of the "Warden's summing up :—He said the facts, as adduced by the evidence, on which this case was founded, were quite clear. The complainants possess a right to a race from the little Kyeburn, at a point near the Falls, and terminating at a point on the Kyeburn Peninsula. They are entitled to five heads of water, and have a first right to the Little Kyeburn Creek. They were lawfully engaged in mining pursuits, for which the water was required, on certain days between those named in the complaint. Between those dates, a portion of the water was running down the Kyeburn Creek, bringing tailings with it in sufficient quantity to cause it to be carried by, instead of entering into complainants' race. It.is proved that from the 6th to the 13th of July there was a thaw sufficient to allow of mining operations being carried on. On the 6th Caspar was at the head of the race, and found it filled with tailings. There were two or three heads in Kyeburn Creek, mixed with tailings. The side race was discharging half a head over complainants' race—the water being all lost. These tailings were proved to be of the same description as those at 'Clarks Diggings—- " sand and quartz." Caspar said that three men worked on that day (the 6th) for six hours, but did not finish cleaning the race ; sufficiently so, however, to enable the water to be turned into the race. Nicholas states that he was at the head of the race on the 6th, Bth, and 13th instant. On the Bth three heads ran down Kyeburn Creek. ' He remembers that in February last there were beaches of tailings in the Kyeburn Creek. He valued the loss of water at £2 per diem. He admits, however, that complainants did get water on the 6th, and a days work on the Bth, while he states that between the 6th and 13th two miners offered complainants 30s. per day for one head of water. Christian considers that clearing the race out would have! given his party two hours water. He also considered that, unless a flood came, defendants' tailings would enter the race. He valued the water lost at the head of the race at £2 per diem, besides the labor of the three men who were engaged cleaning the race out—£3 for two flays work. He also stated that, since last summer, none but defendants had worked above complainants' race. The tailings came down whether the Clarks Diggings miners work or not. The defence set up amounts to this —Guffie states that the damage of tailings has not extended more than 100 yards down the race. That at any time Lawer and himself could clean the race in four hours. That some Chinese sluiced up the creek during the early part of the year. Guffie, however, thinks that the beaches of tailings are out of the Clarks Diggings claims. Mr. Eowlatt, for the defence, urges that the damage complained of should have been laid in the case last heard, under the head of prospective charges. This does not appear to apply. The case quoted in Addison seetus to point to a threatening invasion of an inevitable blow. As the Clark's miners were actually working at: the time, and discharging tailings day by day, it would have been impossible to have calculated the quantity of tailings, or the amount of damage impending. In Campbell v. Ah Choy quoted by M'JFarland, the defendants pleaded that they were in legal occupation of Cnown lands, as

holders of miners' rights, on which they were mining for gold; and for the purpose of their mining operations, they used the said stream (as they lawfully might), in consequence of which the stream was discolored by the water so used: which was the grievance complained of. The Court held the plea had, and gave judgment tor the plaintiff. In ii.ddison on Torts pages 5 and 202, the point will be seen very clearly laid down. "Continuing nuisances :. The continuance of the nuisance is a fresh injury,, for which another action may be brought, and so toties quoties, until the destruction is removed, or the wrongful act done away with. Persons may be liable for the continuance of a nuisance which they themselves originally created, although they are not in possession of, or interested in, the soil on which the nuisance exists at the time of action brought, and although they have no right to enter thereon for the purpose of abating the nuisance." It must, I think, be held that, if the beaches of tailings spread out on the Kyeburn Creek above complainants' race are deposits from defendauts' claims, the removal of any portion of these tailings by the action of the stream from thence to the head of complainants' race, to the injury of that race, justifies the action of complainants against defendants. The brand on these interfering tailings stamps them as coming from defendants' claims, and they (defendants) are responsible for carrying them clear of the the Kyeburn face. It is possible the Cbineese may have contributed a comparatively small share to the heaps; but, from the evidence, neither this contribution, or any derivable from natural sources, would have produced the results shown by the evidence. I have carefully weighed the matter from beginning to end. I have thought of the serious consequences that may ensue and the damages that may occur by the gradual sweeping away of these beaches. I have also closely watched the evidence adduced by complainants for exaggeration or distortion; but, after a careful and deliberate view of the case, I am persuaded it is not my duty to attempt to avert consequences, or shrink from giving a judgment, however disastrous it may be to either one side or the other. The duty of this Court is to administer the law. Where defects arise, causing undue oppression, or its appearance, redress must be had by legislation. Complainants have succeeded, in proving that they worked from the\ 6th to the 11th, inclusive, and on the 13th of July, inclusive, as | far as they could : the 12th, being Sunday, is omitted. During such time of 1 working, they sustained a loss of about one sluice head of water and upwards, excepting on three occasions, when they had quite cleaned out the race. I have allowed one day's water altogether to be deducted from the seven days' loss, at a head a day—making the loss allowed to be at the rate of a head for six clear days ; and, at the price offered by two miners, 30s. a head. Possibly, more than a head a day may have been lost. It is just as possible that defendants may not be entirely responsible for all the tailings .that entered. With regard to the claim for labor, there is a difference of opinion. Plaintiffs demand three days' labor for two men. Defendants urge that two men could have done the work each time in four hours. But defendants did not allow for the loss of time in travelling to the head of the race, and back to work. The claim will therefore be allowed. Judgment will be fpr six days' loss of water (one head at 305.), £9 ; two daj s' labor to three men,' £3; eo*ts of Court, £1 195.; three witnesses at 225., £3 6s.